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2012 Supreme(Cal) 820
High Court of Judicature at Calcutta
PRASENJIT MANDAL, J.
Shamser Ali & Others
Versus
Nilkamal Sarkar & Others
C.O. No. 1648 of 2012
Decided on: 06-09-2012
For the Petitioners:S.P. Roy Chowdhury, Sk. Abu Sufian, Advocates.
For the Respondents:Hirak Mitra, Mrs. Rini Bhattacharya, Advocates.
In a suit for declaration of title and permanent injunction, an interim order of injunction in the nature of status quo can be granted if there is a prima facie case to go for trial, there is a grave urgency in the matter, and the materials filed by the plaintiffs in support of the application for injunction are sufficient to consider that there is a grave urgency in passing such an order.
Headnote:
TEMPORARY INJUNCTION - SUIT FOR DECLARATION OF TITLE AND PERMANENT INJUNCTION - ORDER 39 RULES 1 & 2 CPC - Whether there is a prima facie case and if there is a grave urgency in the matter. Whether the materials filed by the plaintiffs in support of the application for injunction are sufficient to consider that there is a grave urgency in passing an interim order of injunction in the nature of status quo.
Fact of the Case:
Plaintiffs filed a suit for declaration of title and permanent injunction against the defendants in respect of the suit property. An application for temporary injunction was moved by the plaintiffs and was rejected by the trial court. On appeal, the lower appellate court remanded the matter back to the trial court to complete the hearing of the injunction matter in one sitting. The plaintiffs challenged the order of the lower appellate court.
Finding of the Court:
The court held that both the courts below did not consider whether there was any urgency in passing any order in the nature of an ad interim order in view of the contention of the plaintiffs that the defendants are trying to make huge construction on the land in question and to raise a boundary wall of the suit property. The court also held that the materials filed by the plaintiffs in support of the application for injunction are sufficient to consider that there is a grave urgency in passing an interim order of injunction in the nature of status quo.
Issues: 1. Whether there is a prima facie case to go for trial. 2. Whether there is a grave urgency in the matter. 3. Whether the materials filed by the plaintiffs in support of the application for injunction are sufficient to consider that there is a grave urgency in passing an interim order of injunction in the nature of status quo.
Ratio Decidendi: 1. The court relied on the decisions of Maharwal Khewaji Trust (Regd.), Faridkot v. Baldev Dass and Dalpat Kumar & anr. v. Prahlad Singh & ors. to hold that when there is a likelihood of change of the nature of the property including alienation of the transfer, an order of status quo should be passed. 2. The court also held that the conduct of the parties and the probabilities of suffering injuries by either of the parties if any order of injunction is granted or not granted are to be considered.
Final Decision: The court set aside the impugned order and directed both the parties to maintain status quo in respect of the suit property as it stands today for a period of four months hence or till the disposal of the application for temporary injunction whichever is earlier. The court also directed the trial court to dispose of the said application for temporary injunction within a period of four months from the date of the order.
Prasenjit Mandal, J.
1. Challenge is to the judgment and order dated April 17, 2012 passed by the learned Additional District Judge, Fast Track, 3rd Court, Barasat in Misc. Appeal No.11 of 2012 arising out of the Order dated January 3, 2012 passed by the learned Civil Judge (Junior Division), 1st Court, Barasat in Title Suit No.502 of 2010 thereby rejecting the prayer for temporary injunction.
2. On August 25, 2010, the plaintiffs/petitioners herein instituted a suit being Title Suit No.502 of 2010 for declaration, permanent injunction and other reliefs against the defendants/opposite parties herein in respect of the suit property described in the schedule to the plaint. For convenience, the declaratory reliefs and permanent injunctions as prayed for in the plaint are described below:-
a) a Decree declaring that, the Plaintiffs have unfettered right, title and possession of the schedule suit property by virtue of Deed of Heba and inheritance;
b) a Decree declaring that, the Defendant Nos.1 to 4 either jointly and/or severally have/has no right, title to interfere with the peaceful possession and enjoyment by the Plaintiffs in the Schedule suit property;
c) a Decree for permanent Injunction against the Defendant Nos. 1 to 4 restraining them their agents and men from interfering with the peaceful possession of the Plaintiffs in the Schedule suit property in any way or manner and/or ousting Plaintiffs from the Suit Property and/or causing any waste and damage and/or changing the nature and character of the Schedule Suit Property and pass similar order in ad-interim form;
4. On the same day, i.e., on August 25, 2010, an application for temporary injunction was moved by the learned Advocate for the petitioners and the said application was fixed for hearing on September 14,2010. On that day, the defendant No.1 entered an appearance and prayed for time and accordingly, the application for temporary injunction was fixed for hearing on November 11, 2010. Then the defendant again prayed for adjournment of hearing on November 11, 2010 and so, the injunction matter was fixed for hearing on December 14, 2010. On that date, the defendant No.s 1 to 4 filed a written statement but the hearing of the application for temporary injunction was shifted to February 22, 2011. On February 22, 2011, the defendants again prayed for adjournment of hearing the application for temporary injunction and such prayer was granted. In this way, the matter is being dragged and ultimately, the hearing of injunction matter was fixed on January 3, 2012, though the plaintiffs were pressing hard for passing orders for temporary injunction. Thereafter, on January 3, 2012, the defendants as usual again prayed for an adjournment of hearing of the injunction matter and the matter was heard in part and then adjourned to February 8, 2012 for further hearing and also for hearing of another application dated November 16, 2011. Being aggrieved by the manner in which the application for temporary injunction was being dragged, the plaintiffs moved the Lower Appellate Court by filing a Misc. Appeal being Misc. Appeal No.11 of 2012 stating the circumstances and challenging the Order dated January 3, 2012 that the injunction mater is being dragged in spite of the mandate as provided in the CPC. While dealing with the Misc. Appeal, the learned Lower Appellate Court discussed the relevant provisions relating to the scope of granting injunction at the earliest opportunity and accordingly, he requested the learned Trial Judge to complete the hearing of the injunction matter in one sitting without being influenced by the order of the Lower Appellate Court. But no interim order of injunction was granted. Being aggrieved, this application has been preferred by the plaintiffs.
5. Now, the question is whether the impugned order should be sustained.
6. Having heard the learned Advocates of both the parties and on perusal of the materials-on-record, I find that both the Courts did no
