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2010 Supreme(Cal) 1105
HIGH COURT OF CALCUTTA
PRASENJIT MANDAL
Bratindranath Mukherjee - Appellant
Versus
Raja Bhadra – Respondent
Appeal No : C.O. No. 2449 of 2010
Decided On : Sep 02, 2010
Haradhan Banerji, Amitava Pyne, Ashok Banerjee, Aniruddha Chatterjee, Kushal Chatterjee
The grant of an ad interim injunction is a discretionary remedy that should be exercised according to certain norms and settled principles of law.
Headnote:
INJUNCTION - TRUST PROPERTY - ORDER 39 RULES 1, 2 - SUIT FOR DECLARATION OF TRUST AND INJUNCTION - AD INTERIM INJUNCTION - COURT HELD THAT THE RELIEF SOUGHT FOR IS OF DISCRETIONARY NATURE TO BE EXERCISED ACCORDING TO CERTAIN NORMS AND SETTLED PRINCIPLES OF LAW RELATING TO THE GRANT OF TEMPORARY INJUNCTION.
Fact of the Case:
The plaintiff, a trustee of a trust property, filed a suit for declaration of trust and injunction against the defendant, an outsider, who began to collect building materials for the purpose of making entry into the property and to demolish the permanent partition brick walls of the rooms. The plaintiff also prayed for an ad interim order of injunction.
Finding of the Court:
The court found that the plaintiff had filed several other suits against the defendant and other beneficiaries of the trust property, and that a restraint order was still subsisting against the defendant. The court also found that the plaintiff had come up with the same type of prayer before the court, and that the plaintiff had come up against the refusal of an ad interim order of injunction.
Issues: Whether the impugned order refusing to grant an ad interim order of injunction can be sustained.
Ratio Decidendi: The court held that the relief sought for is of discretionary nature to be exercised according to certain norms and settled principles of law relating to the grant of temporary injunction. The court also held that the plaintiff had not shown any urgency in the matter, and that a restraint order was still subsisting against the defendant. The court further held that instead of passing any ad interim order, it should direct the learned Appellate Court to dispose of the application within a period of 30 days from the date of communication of this order.
Final Decision: The court disposed of the application and directed the learned Appellate Court to dispose of the application for ad interim injunction within a period of 30 days from the date of communication of this order.
Prasenjit Mandal, J.
1. THIS application is at the instance of the plaintiff and is directed against the order no.1 dated July 15, 2010 passed by the learned Additional District Judge, Sealdah in Misc. Appeal No.47 of 2010 arising out of an order dated July 1, 2010 thereby refusing ad interim order of injunction passed by the learned Civil Judge (Junior Division), Second Court, Sealdah in Title Suit No.202 of 2010.
2. The plaintiff/petitioner instituted the Title Suit No.202 of 2010 before the learned Civil Judge (Junior Division), Second Court, Sealdah praying for a decree for declaration that the defendant no.1 has got no right, title and interest and to claim any access in respect of 'C' schedule property, as mentioned in the plaint and cannot claim any right or interest in respect of 'C' schedule property, a decree for declaration that the defendant nos.2, 4 and 5 have no right to act adversely against the interest of the trust property, a decree for permanent injunction and other reliers. In that suit, he filed an application praying for temporary injunction. He also prayed for an ad interim order of injunction restraining the defendant no.1, his men and agents from entering into the 'C' schedule property and from making any construction by demolishing the existing construction of the 'C' schedule property. Upon hearing the learned Advocate for the petitioner, the learned Civil Judge was of opinion that there was no need of urgency and as such, he rejected the prayer for ad interim order of injunction. Against such order of refusal, the plaintiff/petitioner preferred a misc. appeal being Misc. Appeal No.47 of 2010 and that application came up for hearing before the learned Additional District Judge-in-Charge, Sealdah. By an order no.1 dated July 15, 2010, the learned Appellate Court rejected the prayer for an ad interim order of injunction and directed to issue show cause notice upon the defendants. Being aggrieved by the said order, the plaintiff/petitioner has come up with this revisional application.
Now the point for consideration is whether the impugned order can be sustained. Upon hearing the learned Advocate of both the sides and on consideration of the materials on record, I find that according to the plaint case the settler, Rabindra Nath Mukherjee, since deceased, built a 5 storied building with own money in the suit property, as described in the schedule 'A' to the plaint. The plaintiff/petitioner also built two more storied, that is, 5 floor and 6 floor at his own cost at the premises no.P6, CIT Road, Scheme LV, under P.S. Entally, Kolkata 700 014. The settler, Rabindra Nath Mukherjee and the members of his family resides on a portion of the third floor of the building and the daughter-in-law of the settler, and her son reside in a flat on a portion of the fourth floor of the said building. Late Rabindra Nath Mukherjee executed and registered a deed of trust appointing him and the plaintiff/petitioner as trustees on June 7, 1998. Thereafter, Rabindra Nath Mukherjee died and since his death the plaintiff is the sole trustee and he is in possession of the entire property. The defendant nos.2, 4 and 5 and the proforma defendants are the beneficiaries of the said trust property in terms of the trust deed. The defendant no.1 is an outsider and he began to collect building materials including marbles, etc. for the purpose of making entry into the property, described in schedule 'C' to the plaint with the object to demolish the permanent partition brick walls of the rooms and also to remove the floors to settle marbles thereon. So, the plaintiff/petitioner filed the petition for temporary injunction.
3. UPON consideration of the materials placed in the application, I find that this is not a single suit filed by the plaintiff. Previously, the plaintiff filed the Title Suit No.190 of 2006 against the defendant nos.2 and 3 in respect of the trust property and in that suit, he prayed for an ad interim order of inj
