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2015 DIGILAW 973 (CAL)

Satyabrata Mukherjee v. Manoranjan Baidya

2015-12-18

SAHIDULLAH MUNSHI

body2015
JUDGMENT : Sahidullah Munshi, J. This revisional application is at the instance of plaintiffs in a suit for declaration, recovery of khas possession and for permanent injunction and is directed against an order dated 15th December, 2014, passed by the learned Civil Judge (Junior Division), 3rd Court, Baruipur, South 24-Parganas, in Title Suit No.20 of 2011. By the order impugned the learned Judge has rejected the plaintiff-petitioners' application for police help under Section 151 of the Code of Civil Procedure. While rejecting the application under Section 151 of the Code of Civil Procedure the learned Judge held that the plaintiffs have already filed four miscellaneous cases vide Misc. Case No.31 of 2012, No.11 of 2011, No.35 of 2011 and No.5 of 2013 under the provisions of Order 39, Rule 2A of the Code of Civil Procedure complaining violation of the order of injunction dated 26th September, 2011 and all those cases are pending before him. It has been held that once Misc. case for violation of the order of injunction has been filed before disposal of the same another application under Section 151 of the Code cannot be entertained. 2. It has been held by the learned Court below that police help cannot be made by mere asking of the party but the inherent power must be exercised with caution and circumspection. It has been held that for arriving at a definite conclusion of the rival claims it would be obligatory for the trial Court to allow the parties to lead evidence. The learned Court below has held that ad interim mandatory injunction is not a remedy which can be easily granted. An order can be made only in the circumstances when it is clear that status quo has been altered by one of the parties to the litigation and there is a clear evidence to that effect. The learned judge has held that application under Section 151 of the Code of Civil Procedure is not maintainable when the aforesaid miscellaneous cases are pending. 3. The petitioners' case in short is as follows :- "The petitioner filed a suit for declaration, recovery of khas possession and permanent injunction in the Court of the learned Civil Judge (Junior Division), 3rd Court, Baruipur, South 24-Parganas. In the said suit the petitioner filed an application for temporary injunction against the defendant Nos.1, 2, 3 and defendant No.12. 3. The petitioners' case in short is as follows :- "The petitioner filed a suit for declaration, recovery of khas possession and permanent injunction in the Court of the learned Civil Judge (Junior Division), 3rd Court, Baruipur, South 24-Parganas. In the said suit the petitioner filed an application for temporary injunction against the defendant Nos.1, 2, 3 and defendant No.12. The said application for temporary injunction was contested by defendant Nos.1, 2, 3 and defendant No.12 by filing two separate written objections. It is the specific case in the written objection filed by defendant Nos.1, 2 and 3 that in the suit property plaintiffs have neither got any title, nor possession. By an order dated 22nd February, 2011, on consideration of the plaintiffs' prayer for ad interim injunction, the learned trial Court was pleased to allow the plaintiffs' prayer for ad interim injunction. Both the plaintiffs, the defendant Nos.1, 2, 3 and defendant No.12 were directed to maintain status quo in respect of nature and character of the suit property and not to fill up the suit tank with earth or cut down trees till 18th March, 2011. By an order dated 26th September, 2011, the learned Court below made the ad interim order of injunction passed on 22nd February, 2011 absolute till disposal of the suit and the application for temporary injunction was disposed of on contest. It is the petitioners' case that despite the order of injunction passed by the learned trial Court defendants/opposite parties have violated the said order and in order to implement the said order of injunction the plaintiffs have filed an application under Section 151 of the Code of Civil Procedure praying that the order dated 22nd February, 2011, passed by the learned Court below should be implemented by issuing necessary direction upon the local police authorities. In support of the petitioners' case Mr. Jibon Ratan Chatterjee, senior advocate, submitted that it is settled law that an application under Section 151 of the Code of Civil Procedure is maintainable for implementation of an order passed by the Court on an application for temporary injunction. In support of his such submission he relied on a judgment in the case of Sujit Pal v. Prabir Kumar Sun & Ors. reported in AIR 1986 CAL 220 . Mr. In support of his such submission he relied on a judgment in the case of Sujit Pal v. Prabir Kumar Sun & Ors. reported in AIR 1986 CAL 220 . Mr. Chatterjee relying upon paragraph 8, 9 and 10 of the said judgment asserts that Court can grant temporary mandatory injunction under Section 151 of the Code of Civil Procedure by directing the police to restore possession to the plaintiffs. It has been held in the said judgment that the injury being grave and serious, ends of justice demands that the Court should grant immediate relief. In the said judgment question came before the Bench for a decision whether the Court has inherent power to grant a temporary mandatory injunction for the purpose of granting relief to a person who has been dispossessed despite an order of interim injunction. In the said judgment it has been held by the Court that where the 'restoring things to their former condition is the only remedy' the Court has to take steps for the purpose in the exercise of its inherent jurisdiction. Here, in the present case, the thing is totally different. Here, the plaintiffs have filed the application under Section 151 of the Code of Civil Procedure for a direction upon the police authorities to implement the order passed by the trial Court. That apart, the petitioners have already taken recourse to the provisions of Order 39, Rule 2A and miscellaneous cases, under the provisions of Order 39, Rule 2A on the allegation that the order of injunction has been violated, are pending. The learned Court below has come to a conclusion that during pendency of all those miscellaneous cases it would not be proper to multiply the number of proceedings by invoking the jurisdiction under Section 151 of the Code of Civil Procedure again. Therefore, the learned trial Court has rightly refused to accept the prayer made in the application under the provisions of Section 151 of the Code." 4. Mr. Probal Mukherjee, learned advocate appearing for the opposite party Nos.4 to 9 has submitted that the plaintiffs have made out no case and the learned trial Court rightly refused to pass any order in the application filed by the plaintiffs under Section 151 of the Code of Civil Procedure. Mr. Mr. Probal Mukherjee, learned advocate appearing for the opposite party Nos.4 to 9 has submitted that the plaintiffs have made out no case and the learned trial Court rightly refused to pass any order in the application filed by the plaintiffs under Section 151 of the Code of Civil Procedure. Mr. Sibashis Ghosh, learned advocate appearing for the opposite party Nos.1, 2 and 3, submitted that they are the owner of the property and they are in possession of the suit property and, therefore, the allegations made in the injunction application as well as in the application under Section 151 of the Code of Civil Procedure are false and the plaintiffs are not entitled to any relief in the application under Section 151 of the Code of Civil Procedure for implementation of the order as prayed for. He relied on two judgments - (1) In the case of Dinesh Kumar Goyal v. Pawan Chowdhury & Ors. reported in 2010(3) CHN (CAL) 121. 5. In support of his submission Mr. Ghosh relies on paragraph 16 of the judgment which held that where there is a specific provision under Order 39, Rule 2A of the Code of Civil Procedure providing a party to a suit to complain of a wilful disobedience of a Court's order passed under Order 39 Rules 1 and 2 of the Code there is no special reason to deviate from the consistent view of this Court and to adjudicate upon the contempt application on its own merit. It has been held that no proceeding under the contempt of Courts Act for violation of an order of injunction would lie when there is a specific provision under Order 39, Rule 2A of the Code of Civil Procedure, although, contempt of Courts Act is a special Statute. (2) The second judgment referred to in the case of Joydev Das v. Khandubala Das reported in 2012 (1) CHN (Cal) 300. Mr. Ghosh relied upon paragraph 11 of the said judgment. The said paragraph is quoted below :- "11. Mr. Mahata, learned Advocate appearing for the petitioner contended that the learned Judge of the Trial Court acted illegally in directing the officer-in-charge of the local police station to render police help for implementation of the order of injunction. Mr. Ghosh relied upon paragraph 11 of the said judgment. The said paragraph is quoted below :- "11. Mr. Mahata, learned Advocate appearing for the petitioner contended that the learned Judge of the Trial Court acted illegally in directing the officer-in-charge of the local police station to render police help for implementation of the order of injunction. According to him, although the opposite party No.1 had alleged that the petitioner had physically harmed her and her other two sons resulting in bloodshed, no documentary evidence that they had to be treated for the injury caused to them was produced. More importantly, no finding was returned by the learned Judge that the petitioner had, in fact, disturbed possession and enjoyment of the suit property by the opposite party no.1 or attempted to change the nature and character thereof. He contended that the defence set up by the petitioner was not at all considered and only because the opposite party No.1 had alleged disobedience to and/or violation of the Court's order dated August 24, 2009 that the order for police help followed, as if it were to be granted as a matter of course. He also contended that the learned Judge did not at all deal with the contention that the application for police help was not maintainable having regard to the provisions of section 36 of the code. Referring to the decision in Paresh Chandra Das (supra), he submitted that there the learned Judge of this Court found as a matter of fact that the order of injunction passed by the Trial Court had been violated and, therefore, the Trial Court's interference was warranted on facts. Such, however, is not the case here. The said decision being distinguishable, the learned Judge without any finding of disobedience or violation ought not to have activated the police authority. He, accordingly, prayed for an order to set aside the impugned order." 6. In the said judgment it has been held that where there is a scope for leading evidence in support of proof of fact the Court should come to a conclusion only after consideration of evidence which would be possible only if the application for execution has been filed. In the present case, the application under Order 39, Rule 2A is pending before the learned Court below and the same would be disposed of after giving the parties to lead evidence. In the present case, the application under Order 39, Rule 2A is pending before the learned Court below and the same would be disposed of after giving the parties to lead evidence. Therefore, it is desirable that the miscellaneous cases initiated on the basis of the applications filed under Order 39, Rule 2A would be disposed of effectively. The application under Section 151 of the Code of Civil Procedure has to be disposed of only on the basis of the averments in the application and counter-objection, if any, there is no scope for leading any evidence by the parties. In my view this judgment supports the case of the defendants/opposite parties. Mr. Arnab Roy appears on behalf of opposite party No.12 and submits that his client is also the owner of the property and he is in possession of the suit property. Therefore, question of violation of the injunction order by his client does not arise. 7. Having heard the parties at length and having considered the materials on record and on perusal of the order impugned I am of the view that the learned Court below has committed no illegality in passing the impugned order. The learned Judge has rightly held that when there is a scope for leading evidence in the miscellaneous cases initiated under Order 39, Rule 2A of the Code of Civil Procedure and when as much as there are four such miscellaneous cases are pending, there is no scope for the multiplicity of proceedings by way of filing an application under Section 151 of the Code of Civil Procedure. If the miscellaneous cases are taken up for consideration, the Court can allow the parties to lead evidence and after such evidence is taken into consideration the learned Court below can come to a conclusion with regard to the violation of the order of injunction. Until such evidence is taken it is difficult to pass an appropriate order with regard to the allegations of violation of the order of injunction. 8. Therefore, the order impugned does not call for any interference and the same is hereby affirmed. 9. Until such evidence is taken it is difficult to pass an appropriate order with regard to the allegations of violation of the order of injunction. 8. Therefore, the order impugned does not call for any interference and the same is hereby affirmed. 9. However, having regard to the fact that there is already an order of status quo with regard to nature and character of the suit property and there are serious allegations regarding breach of such status quo, the learned Court below is directed to dispose of the Miscellaneous Cases arose from the applications under Order 39, Rule 2A of the Code of Civil Procedure within a period of one month from the date of communication of this order. It is further made clear that nothing shall prevent the petitioner to take out an application under Section 151 of the Code, if situation so demands, after the above-mentioned Miscellaneous Cases are disposed of. The revisional application is dismissed. There will be no order as to costs. Urgent Photostat certified copy of this judgment, if applied for, be delivered to the learned advocates for the respective parties upon compliance of all usual formalities.