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2020 DIGILAW 153 (CAL)

Mina Deb v. Pradip Ranjan Deb

2020-02-06

ABHIJIT GANGOPADHYAY, HARISH TANDON

body2020
JUDGMENT 1. By consent of the parties, both the appeal and application are taken up together. 2. The instant appeal is directed against the order no. 2 dated 16th August, 2019 passed by the learned Civil Judge (Senior Division), 1st Court, Barasat in Title Suit No. 599 of 2019, by which the prayer for ex parte ad interim order of injunction was refused. 3. The suit for partition, separation of shares, permanent injunction and for accounts was filed by the plaintiffs/appellants alleging that despite the request for amicable partition the defendants did not agree to it and, therefore, their shares in respect of the joint property should be separated from the defendants/respondents. 4. In the said suit an application for injunction under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure was filed restraining the defendants/respondents from changing the nature and character or effecting transfer, alienation and/or parting with the possession of the suit property or any portion thereof till the disposal of the suit. 5. It is alleged in the said application that on and from 6th June, 2019 the defendants started demolishing the existing two storied residential building with an intent to make an illegal construction thereat and the aforesaid act was duly informed to the local Police Station, but despite such complaint having been made, the attempt is shown by the defendants to continue with such illegal and wrongful activities. It is further stated in the said application that realizing that it would not be possible to resist the defendants, the request was made for amicable partition firstly on 24th July, 2019 and lastly on 30th July, 2019 and having failed to accede to such request the suit has been filed. 6. The impugned order is set out as under:- "Record is placed before me. Ld. Lawyer for the plaintiffs moved an application under order 39 rule 1 &2 read with section 151 of C.P.C. Hear the Ld. Lawyer for the plaintiffs. Seen the note of Sherestadar from which it appears that no caveat is pending. Perused the plaint, application for injunction and the documents filed by firisti. Considered. This is a suit for partition, permanent injunction and for accounts. It appears that the cause of action of this suit arose on 24.07.2019 but the instant suit was filed on 14.08.2019. Seen the note of Sherestadar from which it appears that no caveat is pending. Perused the plaint, application for injunction and the documents filed by firisti. Considered. This is a suit for partition, permanent injunction and for accounts. It appears that the cause of action of this suit arose on 24.07.2019 but the instant suit was filed on 14.08.2019. There has been considerable delay in filing the instant suit which shows that there is no grave urgency in the instant case. The injunction is an equitable relief and there is well known maxim "delay defeats equity". So considering the same, I am not inclined to pass any order of ad-interim injunction at this stage. Accordingly, it is Ordered that the prayer for ad-interim injunction is refused at this stage. Issue notice upon the defendants calling them to show cause within 15 days from the date of receipt thereof as to why the plaintiffs' prayer for temporary injunction shall not be granted against them. To date" 7. Curiously enough the Trial Court refused to pass ad interim order of injunction simply on the ground that there was a considerable delay on the part of the plaintiffs in approaching the Court and applied the principle 'delay defeats equity'. We are further surprised to note that although the date of the cause of action is recorded as 24th July, 2019 and the suit having been filed on 14th August, 2019, the learned Judge perceived the time taken as dormant attitude of the plaintiffs as well as the delay in approaching the Court. 8. The human intelligence cannot be equated with the artificial intelligence; in judicial system when an approach is made to a legal expert, he has to collate the documents and also make his own assessment on the probability of success obviously upon the application of law relating thereto. Such assessment takes time and cannot be expected to be used on a click of the bottom, as the artificial intelligence does. The time gap between 24th July, 2019 and 14th August, 2019 cannot act as deterrent to the plaintiffs/appellants in refusing equitable relief as such time gap is enormous. Such assessment takes time and cannot be expected to be used on a click of the bottom, as the artificial intelligence does. The time gap between 24th July, 2019 and 14th August, 2019 cannot act as deterrent to the plaintiffs/appellants in refusing equitable relief as such time gap is enormous. We are in fix and have perceived from the experiences, which we gain in the legal fraternity, and it would not be wrong to say that even after completion of the argument at the Bar considerable time are consumed by the Judges to deliver the judgement. If the Judges enjoin previlege to take time framing a decision, it is improbable and beyond any conceivable imagination that the lawyer, who is approached by the client, will not take at least fifteen to twenty days to take a decision and institute the suit before the Court of Law. It is a matter of concern that if the Judges enjoin the privilege of taking time to decision and delivering a judgement for a month after the date of closure of the argument, the lawyer may take more time or less time depending upon his knowledge, intelligence and acumen in the field to adumbrate the facts founded upon the materials and the evidence to be adduced at the time of trial. 9. The legal principle 'delay defeats equity' is not abstruse nor to be perceived theoretically, but must be applied with the hard realities of today's world and above all objectively. It is not a stray subjective consideration, but has an in-built objective values, which should always be borne in mind when a right or relief is denied on such equitable principle. 10. What is discernable from the impugned order is that the learned Judge has shirked his responsibility in recording the reasons on merit and have invented a circuitous path in refusing the prayer for ex parte ad interim order of injunction. 11. We, therefore, cannot approve the manner in which the prayer for ex parte ad interim order of injunction is refused by the Trial Court. We could have very well interfered with the order, but now we have been informed that the defendants have entered appearance and contesting the application for temporary injunction. The next date is fixed in the month of August, 2020, though it was fixed some time in the month of January, 2020. We could have very well interfered with the order, but now we have been informed that the defendants have entered appearance and contesting the application for temporary injunction. The next date is fixed in the month of August, 2020, though it was fixed some time in the month of January, 2020. If the longer date is fixed for disposal of an application for injunction, it frustrate the main object of it and it is high time that the Judges should realize that the purpose of incorporating the provisions for temporary injunction is not only to protect and preserve the status of the property, but also to protect the rights pending final adjudication in the suit. 12. We, therefore, direct the learned Judge in the Trial Court to prepone the date, if approached by either of the parties and efforts shall be shown to dispose of the same as expeditiously as possible without granting unnecessary adjournments. 13. Nothing observed hereinabove shall have any persuasive value on the merit of the case, as such observations are simply made on the manner in which the impugned order was passed. 14. The appeal and application are thus disposed of. 15. There will be no order as to costs.