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2014 DIGILAW 8 (CAL)

Parimal Dey v. Anita Agarwal

2014-01-10

PRASENJIT MANDAL

body2014
Judgment : Prasenjit Mandal, J. These three applications are at the instance of the plaintiff/respondent no.1 and is directed against the Order No.11 dated October 1, 2013 passed by the learned Additional District Judge, 13th Court, Alipore in Misc. Appeal Nos.396, 398 & 397 of 2013 thereby granting the order of stay of the Order Nos.60, 57 & 58 dated July 9, 2013 passed by the learned Civil Judge (Senior Division), Baruipur in Title Suit Nos.127, 139 & 118 of 2011 respectively. The plaintiff/respondent no.1/petitioner herein filed the aforesaid suits praying for a decree for partition of the suit property in the preliminary form declaring plaintiff’s 1/14th share in the suit property described in the Schedule ‘A’ to the plaint and other consequential reliefs. At the time of filing of the said suits, he filed an application for temporary injunction and prayed for ad interim injunction. The learned Trial Judge granted an ad interim order of injunction and then upon hearing both the sides over the applications for temporary injunction, he directed the plaintiff and the defendant nos.1 to 7 to maintain status quo with regard to the nature, character and possession of the suit property till the disposal of the suit. Being aggrieved by such orders, the defendants preferred the aforesaid three misc. appeals and they prayed for stay of the order of status quo. Upon consideration of the submission of the learned Advocates of both the sides and on perusal of the materials on record, the learned First Appellate Court granted stay of the impugned order for a limited period. Being aggrieved, these three applications have been preferred. Now, the question is whether the learned First Appellate Court is justified in granting the order of stay of the impugned orders before him. Upon hearing the learned Counsel for the parties and on going through the materials on record, I find that the said three suits for partition have been filed by the plaintiff/petitioner herein claiming 1/14th share in the suit property as described in Schedule ‘A’ to the plaints. The plaintiff has claimed the said share by way of inheritance contending, inter alia, that the deed of gift which is virtually a Will was to take effect after the death of one Golap Rabbani who admittedly died on August 15, 1986. The plaintiff has claimed the said share by way of inheritance contending, inter alia, that the deed of gift which is virtually a Will was to take effect after the death of one Golap Rabbani who admittedly died on August 15, 1986. Admittedly, Golap Rabbani died living two sons, namely, Abul Bashar Sardar, Abul Kalam Sardar and three daughters, namely, Taslima Bibi, Jarina Bibi and Hasina Bibi. According to the contention of the plaintiff, since the registered deed of gift in favour of the two sons of Golap Rabbani over the entire property of Golap Rabbani excluding the three daughters were invalid according to Mohamedan Law and as such, Jarina Bibi, from whom the plaintiff got the suit property by a registered deed of gift dated December 1, 2010, inherited the property of Golap Rabbani to the extent of 1/14th share in the suit property. On the other hand, the contention of the defendants is that they had purchased the entire suit property from the two sons of Golap Rabbani. The contesting defendants have also contended that they had purchased several plots measuring 5.60 acres of land for a total consideration of Rs.14,95,98,568/- and the suit property as described in the schedule to the plaints is situated in the middle of the said 5.60 acres of land which is encirculed by a boundary wall. They have also contended that the deed of gift in favour of the plaintiff dated December 1, 2010 was never acted upon and Jarina Bibi had no right to transfer the suit property in favour of the plaintiff. The said deed of gift executed by Jarina Bibi is void and inoperative. Jarina Bibi had no possession of the suit property all along and the two sons of Golap Rabbani got the suit property to the exclusion of their sisters. The deed of settlement executed by Golap Rabbani was done upon consent of all the heirs of Golap Rabbani and so, the contention of the plaintiff is not sustainable. The plaintiff has contended that since the defendants are trying to raise the construction of the boundary wall covering the entire plot, if they are successful in doing so, then the plaintiff will be out of possession of the suit property. The plaintiff has contended that since the defendants are trying to raise the construction of the boundary wall covering the entire plot, if they are successful in doing so, then the plaintiff will be out of possession of the suit property. If the defendants are able to raise construction thereon, the plaintiff will not get back the possession of the suit property and there would be multiplicity of suits and proceedings and as such, the prayer for temporary injunction has been sought for. Mr. S.P. Roychowdhury, learned Senior Advocate appearing for the petitioner has submitted the basic principles in granting stay and injunction and he has referred to the judgments delivered by Sir Mookerjee in ILR 41 Cal 436 and other Hon’ble Judges of this Hon’ble Court and of the Apex Court, such as, 1983(2) CLJ 72 , 1994(1) ILR Cal 72, 2005(2) CLJ 482 , (1983) 4 SCC 31 , (1992) 1 SCC 719 , (2004) 8 SCC 488 , 2004(2) CHN 238 , 2005(1) WBLR SC 201 and (2008) 11 SCC 1 . Relying on these decisions, he has contended that in the instant case, the ad interim order of injunction was granted on June 29, 2011 and the said injunction order was made absolute on July 9, 2013. The First Appellate Court granted the order of stay only on October 1, 2013. Thus, the ad interim order of injunction remained in force for more than two years last and the land in suit is still vacant. The appeals being ready for final decision, appropriate directions can be passed. He has also contended that the next date has been fixed by the learned First Appellate Court on January 27, 2014 and so, the order of status quo as granted by the learned Trial Judge should be maintained during this period and the defendants will not be prejudiced at all in view of the fact that, the land is still a vacant land and the order of injunction is in force for the last two years. So, if the order of status quo as granted by the learned Trial Judge is continued for some time more, the defendants would not suffer any loss and so, the order of status quo should be continued and the impugned order should be set aside. On the other hand, Mr. So, if the order of status quo as granted by the learned Trial Judge is continued for some time more, the defendants would not suffer any loss and so, the order of status quo should be continued and the impugned order should be set aside. On the other hand, Mr. Saktinath Mukherjee, learned Senior Advocate appearing for the defendants, has contended that Golap Rabbani delivered the land in favour of his two sons 26 years back and since then, the transferor of the plaintiff did not take any step for the last 26 years and he allowed the two sons of Golap Rabbani to treat their land as their own and to do the act of possession, such as, recording of mutation, payment of rent to the Government in respect of the land in suit and thus, relying on the decision of (1995) 5 SCC 545 [Gujrat Bottling Co. Ltd. & ors. v. Coca Cola Co. & ors.], he has contended that the order of injunction being an equitable relief, the balance of convenience must be seen. He has also contended that the conduct of the party seeking the injunction must be fair. Moreover, in the instant case, the defendants had expended Rs.17 crores for purchase and development of the suit property and so, at this belated stage, it is not proper to grant any equitable relief in favour of the party at fault. He has referred to the decision of (2006) 8 SCC 367 [M. Gurudas & ors. v. Rasaranjan & ors.] particularly the paragraph nos.32 to 36 and thus, he has submitted that when the conduct of the plaintiff is not fair and honest, no relief should be granted in favour of the plaintiff and so, the First Appellate Court is quite justified in allowing the application for stay. He has drawn my attention to the paragraph no.36 of the said judgment wherein the decision of Gujrat Bottling Co. Ltd. & ors. (supra) has been discussed. For convenience, the said paragraph is quoted below:- 36. The conduct of the defendants was indisputably relevant as has been held by this Court in Gujarat Bottling Co. Ltd. in the following terms: (SCC P.576, para 47) “47. In this context, it would be relevant to mention that in the instant case GBC had approached the High Court for the injunction order, granted earlier, to be vacated. The conduct of the defendants was indisputably relevant as has been held by this Court in Gujarat Bottling Co. Ltd. in the following terms: (SCC P.576, para 47) “47. In this context, it would be relevant to mention that in the instant case GBC had approached the High Court for the injunction order, granted earlier, to be vacated. Under Order 39 of the Code of Civil Procedure, jurisdiction of the Court to interfere with an order of interlocutory or temporary injunction is purely equitable and, therefore, the Court, on being approached, will, apart from other considerations, also look to the conduct of the party invoking the jurisdiction of the Court, and may refuse to interfere unless his conduct was free from blame. Since the relief is wholly equitable in nature, the party invoking the jurisdiction of the Court has to show that he himself was not at fault and that he himself was not responsible for bringing about the state of things complained of and that he was not unfair or inequitable in his dealings with the party against whom he was seeking relief. His conduct should be fair and honest. These considerations will arise not only in respect of the person who seeks an order of injunction under Order 39 Rule 1 or Rule 2 of the Code of Civil Procedure, but also in respect of the party approaching the Court for vacating the ad interim or temporary injunction order already granted in the pending suit or proceedings.” Thus, Mr. Mukherjee has contended that the plaintiff is not entitled to get any order of injunction and so, the First Appellate Court has rightly granted the stay. He has also contended that the defendants had invested huge money and expended more than Rs.14 crores for purchase of the land in suit and thereafter, invested huge money to collect the building materials. The order of injunction in the nature of status quo would cause extreme hardship to the appellants/opposite parties herein. Mr. He has also contended that the defendants had invested huge money and expended more than Rs.14 crores for purchase of the land in suit and thereafter, invested huge money to collect the building materials. The order of injunction in the nature of status quo would cause extreme hardship to the appellants/opposite parties herein. Mr. Jayanta Kumar Mitra, learned Senior Advocate appearing for the defendants, has also drawn my attention to the observation of the First Appellate Court to the effect that the position of the parties with regard to the land in suit to the effect that the deed of settlement was executed by Golap Rabbani in favour of his two sons 27 years back and if the plaintiff has any share in the property which is almost negligible could be compensated by costs. Thus, he has drawn my attention to the observations of the First Appellate Court to that effect and he has submitted that the First Appellate Court has rightly held that the principle of injunction, according to Section 37 of the Specific Relief Act, is that the order of injunction should not be issued if the plaintiff suffers a negligible damage on account of denial of his prayer and the defendants will suffer serious damage by grant of it. Thus, he has also supported the order of stay as granted by the First Appellate Court. Having due regard to the submissions of the learned Counsel for the parties and considering the basic principles of granting injunction, I find that while dealing with the injunction matter, the learned Trial Judge has discussed the basic principles for grant of temporary injunction. Upon analysis of the materials placed before him, the learned Trial Judge has concluded that the plaintiff has shown prima facie case to go for trial and if the order of injunction as prayed for by the plaintiff is not granted, if the construction as alleged is raised by the defendants, there would be multiplicity of suit. The plaintiff will not be able to get back the possession of the land at all. There is a prima facie case to go for trial as per materials on record and so, if the prayer for injunction is withheld, the plaintiff has the chance of suffering irreparable loss. The plaintiff will not be able to get back the possession of the land at all. There is a prima facie case to go for trial as per materials on record and so, if the prayer for injunction is withheld, the plaintiff has the chance of suffering irreparable loss. She has also observed that if the plaintiff succeeds in the suit, she has to face serious consequences for not granting temporary injunction. The nature and character of the suit property will be changed by this time causing irreparable loss and injury to the plaintiff and giving birth of multiple proceedings. Thus, she has observed that the vacating of ad interim injunction would cause greater complication and injustice than that of granting temporary injunction. Thus, I find that the learned Trial Judge has made an elaborate discussion as to the principles of granting injunction and the facts involved in the matter and thus, she has concluded that the plaintiff has been able to satisfy the essential ingredients for making the interim order of injunction absolute in the suit. As recorded earlier, the suit land is still vacant and the next date is fixed for hearing the misc. appeals on January 27, 2014, which is not far off from today. In my view, the order of status quo as granted by the learned Trial Judge should continue in such circumstances. If the order of stay as granted by the First Appellate Court is maintained, the effect would be the grant of the entire relief as sought for in the misc. appeals which is not permissible at all, while disposing of the applications for stay of the impugned orders. For that reason, I am of the view that the learned First Appellate Court has rightly observed in the last part of his order that the basic points relating to grant or refusal of the injunction matter are yet to be dealt with by the First Appellate Court in the appeals and such a stage has not been reached as yet and so, in my view, the conclusion of the Appellate Court that the stay should be granted for a limited period, in my view, is not fit and proper. It is pertinent to mention that the suit property is situated in the middle of the total property purchased by the defendants and so, if the entire property measuring 5.60 acres is surrounded by wall and if the plaintiff succeeds ultimately in the suit, his success in the suit may be meaningless, that is, a mere paper decree. The Appellate Court in exercise of its jurisdiction over the matter of injunction is also consider the test of ingredients for granting injunction and so, there is a scope for re-agitation of the grounds taken by the respective parties in respect of the injunction matter, before the First Appellate Court afresh. So, in consideration of the location of the suit property as contended in the application, in my view, if the order of stay as granted by the First Appellate Court is allowed to continue, complications may arise. It will not be proper as the entire relief sought for in the appeals are being granted by the order of stay. I leave the entire matter for decision by the First Appellate Court afresh. Since the appeal is pending and it is likely to be taken up on the next date of hearing, I refrain myself from considering the different aspects of the matter of granting injunction and it will be fit and proper to leave the matter for decision by the First Appellate Court in his own way, in accordance with law. In that view of the matter, I am of the opinion that the impugned order cannot be sustained. The application is, therefore, allowed. The impugned order is hereby set aside. The learned First Appellate Court is directed to dispose of the said three misc. appeals within three weeks from the date of 27th instant without fail. It is also recorded that whatever observations have been made by this Court with regard to the injunction matter, these are for the purpose of the disposal of this application. While dealing with the injunction matter, the First Appellate Court shall come to a conclusion independently on the basis of the materials placed before him and that he shall not be swayed away in any form by my above observations. This judgment shall govern the aforesaid three applications and the judgment is kept with the record being C.O. No.3698 of 2013. Considering the circumstances, there will be no order as to costs.