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High Court Of Calcutta
M. G. MUKHERJI, NRIPENDRA KUMAR BHATTACHARYYA
LAKSHMI DEBNATH - Appellant
Versus
REND AICH - Respondent
F. M. A. 1048 Of 1992
Decided On : 05/07/1993
INTERIM INJUNCTION - AD INTERIM INJUNCTION - ORDER 39 RULES 1 AND 2 OF THE CODE OF CIVIL PROCEDURE - [FACT OF THE CASE] The respondent filed a suit for a declaration of her right, title and interest in respect of the suit premises, praying inter alia for partition of the suit property and also prayed for an injunction restraining the decree holder appellant from obtaining possession of the decreetal premises by executing the decree in Title Execution Case No. 44 of 1986, arising out of Title Suit No. 1523 of 1978. The Trial Judge granted an ad interim injunction against the appellant, restraining her from obtaining possession of executing the decree. The appellant challenged the order of the Trial Judge.
Finding of the Court:
The Court held that the respondent had an arguable case which warranted a full throated hearing on merits. The Court further held that the Trial Judge rightly came to the conclusion that the balance of convenience lay in favour of his exercising his discretion by granting an interlocutory injunction tentatively for some time.
Issues: 1. Whether the respondent had an arguable case which warranted a full throated hearing on merits? 2. Whether the Trial Judge rightly came to the conclusion that the balance of convenience lay in favour of his exercising his discretion by granting an interlocutory injunction tentatively for some time?
Ratio Decidendi: 1. The Court held that the respondent had an arguable case which warranted a full throated hearing on merits because there was a serious question to be tried. The Court further held that it is no part of the court's function at this stage of the litigation to try to resolve the conflicts of evidence on affidavit as the facts on which the claims of either party may ultimately depend, nor to decide difficult questions of law which call for detailed argument and nature considerations. 2. The Court held that the Trial Judge rightly came to the conclusion that the balance of convenience lay in favour of his exercising his discretion by granting an interlocutory injunction tentatively for some time because to interrupt the respondent in the conduct of an established enterprise would cause much greater inconvenience to her since she would have to start again to establish it in the event of her succeeding at the trial.
Final Decision: The Court directed the Trial Judge to hear out the injunction application in a full throated manner so that the appellant could contest the same efficaciously. The Court further directed the Trial Judge to hear out the injunction application in all finality either on June 25, 1993 or on a date within a period of eight weeks from this date i.e. by July 2, 1993 at the latest.
( 1 ) THE defendant appellant Smt. Lakshmi Debnath impugns in the present appeal an order bearing No. 4 dated 23rd May, 1992 passed by Shri C. A. Rahim, Judge-in-Charge, 13th Bench, City Civil Court, Calcutta in Title Suit No. 1030 of 1992 whereby the learned Judge passed an order of ad interim injunction against her, restraining her from obtaining possession of executing the decree in Title Execution Case No. 44 of 1986 arising out of Title Suit No. 1523 of 1978.
( 2 ) THE suit premises is but one room covered with verandah in the ground floor of premises No. 36, Sree Gopal Mallick Lane, Calcutta-12.
( 3 ) IT would be necessary in this perspective to trace the background of the case which led to the issuance of an ad interim temporary injunction against the present appellant. The appellant as a plaintiff filed Title Suit No. 1523 of 1978 against one Smt. . Sova Rani Mitra (who happened to be the sister of the plaintiff respondent No. 1 Renu Aich) for recovery of khas possession of the suit premises. The said suit was decreed on contest against the said Suit. Sova Ram Mitra on 30th April, 1983. Smt. Sova Rani Mitra filed an appeal before this Hon'ble Court being F. A. No. 358 of 1983 which stood dismissed by the Hon'ble Court on 17th June, 1986. In the said suit Smt. Sova Rani Mitra gave an undertaking to court to vacate the premises by February 1987 but ultimately she did not vacate. The decree holder appellant as a decree holder proceeded with the execution case being Title Execution Case No 44 of 1986. In the said execution proceeding the present respondent No. 1, Renu Aich as a third party filed an application which was registered as Misc. Case No. 301 of 1988 the same being treated as a miscellaneous proceeding under Order 21 Rule 97 read with section 151 of the Code of Civil Procedure. The said proceeding stood rejected on contest by order No. 49 dated 18. 9. 90. The present respondent No. 1 Renu Aich moved this Hon'ble Court by way of preferring an appeal against the said order being FAMT 3209 of 1990 and the appeal was dismissed by a Division Bench of this court on 12. 11. 91. On 7th August, 1991 the present appellant as a decree holder prayed for police help under Civil Rules and Orders 208 and police help was allowed for effecting delivery of possession. On 22nd April, 1992, a revisional application impugning the order for police help was moved by the respondent No. 1 before this Hon'ble Court and the revisional application preferred by her also stood rejected. The date of delivery of possession of the decreetal room was fixed on 29. 5. 92 by the executing court. The respondent No. 1 thereafter filed a suit being Title Suit No. 1030 of 1992 for a declaration of her right, title and interest in respect of the suit premises, praying inter alia for partition of the suit property being 36, Sree Gopal Mallick Lane, Calcutta and also prayed for an injunction restraining the decree holder appellant San. Lakshmi Debnath from obtaining possession of the decreetal premises by executing the decree in Title Execution Case No. 44 of 1986, arising out of Title Suit No. 1523 of 1978. In the said suit she also filed an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure contending inter alia that she came to know of the said decree dated 13. 12. 86 when the decree holder along with the Court bailiff and some other anti-social elements went to execute the decree, that she was residing in the suit premises on her own right, and the premises in question is her own ancestral property. It was contended by her that the decree in Title Suit No. 1523 of 1978 was obtained by the present appellant Smt. Lakshmi Debnath in collusion with Smt. Sova Rani Mitra, her own elder sister and it was a sham contest. The learned Trial Judge decreed the suit on 13th April, 1983 and even though Sova Rani Mitra preferred an appeal against the aforesaid judgment and decree being F. A. No. 358 of 1983, there was a coll
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