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2011 Supreme(Cal) 302
HIGH COURT OF CALCUTTA
DIPANKAR DATTA, J.
Rupali Dey - Appellants
Vs
East Calcutta Girl's College, Lake Town - Respondents
CO. No. 646 of 2011
Decided on: March 03, 2011
Important Points
Subject
Civil Law - Injunctions
Act Referred
Headnote
INJUNCTION - ORDER 39 RULE 3 - ORDER 39 RULE 3 (A) AND (B) - ORDER 39 RULES 1 AND 2 - CPC - The court set aside the trial court's order vacating an ad interim injunction on the ground of non-compliance with Order 39 Rule 3 (a) and (b) of the Code of Civil Procedure (CPC) as the defendant had already filed a written objection to the injunction petition.
Fact of the Case:
The petitioners, students of East Calcutta Girls' College, filed a suit for declaration and permanent injunction to restrain the college from holding elections based on an allegedly illegal notice. The trial court granted an ad interim injunction but later vacated it on the ground that the plaintiffs had not served a copy of the plaint and the injunction petition on the defendant after the order was passed.
Finding of the Court:
The court found that the trial court erred in vacating the ad interim injunction without considering the materials on record and without appreciating the scope, terms, effect, and import of Rule 3 of Order 39. The court held that the defendant had already contested the injunction petition by filing an objection, and therefore, the plaintiffs' failure to serve a copy of the plaint and the injunction petition on the defendant was not a sufficient ground to vacate the injunction.
Issues: Whether the trial court erred in vacating the ad interim injunction on the ground of non-compliance with Order 39 Rule 3 (a) and (b) of the CPC when the defendant had already filed a written objection to the injunction petition.
Ratio Decidendi: The court held that the trial court's order was unsustainable as it failed to consider the materials on record and the scope and effect of Rule 3 of Order 39. The court emphasized that procedures are the handmaids of justice and not its mistresses, and that courts exist for administering substantial justice to the parties, not for rendering justice a casualty on technical grounds.
Final Decision: The court set aside the trial court's order vacating the ad interim injunction and directed that the election of members to the Union Council of the college shall remain in abeyance and the Union Council shall not function any further till 31.03.2011. The trial court was directed to hear the injunction petition within that date and decide whether to continue the order of status quo ante or to vacate it.
A. Chakraborty, S. Roy Chaudhary, M.L. Dey, R. Bhattacharyya, M.C. Das, M. Das
1. THE petitioners are students of East Calcutta Girls' College, Lake Town (hereafter the college). As plaintiffs, they instituted a suit for declaration and permanent injunction registered as Title Suit No. 41 of 2011 in the Court of the learned Civil Judge, Junior Division at Sealdah.
2. CASE made out in the plaint is that a process had been initiated by the Principal of the college for election to the Union Council (i.e. Students' Union) vide notice dated 14.01.2011. In terms thereof, 01.02.2011 was proposed as the date of election. The petitioners alleged that the Principal of the college had no authority to issue the notice dated 14.01.2011; additionally, the process was sought to be conducted not in conformity with the rules and regulations for holding election. Decree for declaration that the notice dated 14.01.2011 is void ab initio, illegal and inoperative was prayed for. Also, mandatory injunction restraining the defendants in the suit from holding election on the basis of the impugned notice was claimed.
In connection with the suit, the petitioners intended to move a petition under Order 39 Rules 1 and 2 of the Code of Civil Procedure (hereafter the 'Code') on 27.01.2011. The Trial Court noticed that one Sonamika Dey had lodged a caveat related to the affairs of the college. Hearing was accordingly adjourned. On 28.01.2011, the said Sonamika Dey filed a petition under Order 1 Rule 10(2) of the Code. She also filed a written objection to the petition under Order 39 Rules 1 and 2 filed by the petitioners.
3. THE Trial Court upon considering the petition of the said Sonamika Dey allowed it. She was directed to be impleaded as additional defendant in the suit (defendant No. 7). Thereafter the Trial Court heard the petitioners as well as the defendant No. 7 on the prayer for ad interim temporary injunction. A prima facie satisfaction was recorded that the legality of the notice dated 14.01.2011 is questionable. Accordingly, it was ordered as follows:
"That, the plaintiffs application, under Order 39 Rules 1 and 2 read with section 151 CPC is allowed at this stage, the defendants are restrained from giving any affect to the notice dated 14.1.11, till 12.2.11. In the meantime the O.C. lake town P.S. is directed to personally see that no breach of peace occurs in the College, premises/compound till 12.2.11. Issue notice upon the Defendants to show cause within 10 days from the date of receipt of the notice as to why the plaintiffs prayer for temporary injunction shall not be allowed. Plaintiff to comply the provisions of Order 39 Rule 3 (a) and (b) at once."
4. IT is claimed by the petitioners that in terms of the order dated 28.01.2011, they had despatched copies of the petition for temporary injunction and the plaint along with a notice communicating the gist of the order to the defendants 1 to 6 by registered post and an affidavit of service was filed before the Trial Court on the following date. IT does appear from the order recorded by the Trial Court on 29.01.2011 that an affidavit in compliance with Order 39 Rule 3 (a) and (b) of the Code along with postal receipts had been filed which was directed to be retained with the records.
It is further claimed by the petitioners that without any 'put up' petition having been filed by any of the defendants in the suit and without issuing any show-cause to them as to why the order dated 28.01.2011 shall not be vacated for non-compliance with provisions of Rule 3 (a) and (b) of Order 39 of the Code, the Trial Court vacated the interim order. This order is under challenge in this revisional application under Article 227 of the Constitution of India.
5. I have heard Mr. Chakraborty, learned Senior Advocate for the petitioners and Mr. Das, learned Advocate for the defendant No. 7/opposite party No. 7 herein, and perused the impugned order.
6. THE Trial Court in the impugned order observed that the requisites filed by the petitioners were incomplete. Submission made on behalf
