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IN THE HIGH COURT AT CALCUTTA
R. K. Bag, J.
Tivoli Park Apartments Private Limited
Versus
Shrawan Kumar Todi & Ors.
C.O. No.209 of 2014 With C.O. No.3879 of 2013 With C.O. No.4053 of 2013
Decided On : 07.07.2014
INJUNCTION - SHAREHOLDERS - COMPANY PROPERTY - JURISDICTION - ARTICLE 227 - ORDER 39 RULES 1 AND 2 - ORDER 39 RULES 3(A) AND (B) - SPECIFIC REASONS - NATURAL JUSTICE - FAILURE OF JUSTICE - EXTENSION OF AD INTERIM INJUNCTION - NON-COMPLIANCE WITH ORDER 39 RULES 3(A) AND (B) - VIOLATION OF NATURAL JUSTICE - LACK OF REASONS - ARBITRARY, FANCIFUL, AND VAGUE - JURISDICTION UNDER ARTICLE 227 - ORDER NOT SUSTAINABLE IN LAW - FAILURE TO CONSIDER OBJECTIONS - SPECIFIC DIRECTION BY THE HIGH COURT - VIOLATION OF SPECIFIC DIRECTION - DISMISSAL OF CO. NO. 209 OF 2014, CO. NO. 3879 OF 2013, AND CO. NO. 4053 OF 2013 - DISPOSAL OF MISC. APPEAL NO. 472 OF 2013 WITHIN TEN DAYS - HEARING ON DAY-TO-DAY BASIS - NO UNNECESSARY ADJOURNMENT - APPEARANCE OF PARTIES BEFORE THE FIRST APPELLATE COURT - URGENT XEROX CERTIFIED COPY OF JUDGMENT - PRAYER FOR STAY OF OPERATION OF JUDGMENT REFUSED.
Fact of the Case:
Petitioner challenged the order dated 7th January, 2014 passed by Learned Additional District Judge, 14th Court, Alipore, South 24-Parganas in Misc. Appeal No.472 of 2013 arising out of order dated 20.09.2013 passed by Learned Civil Judge (Senior Division), 2nd Court, Alipore in Title Suit No.22050 of 2013, by which Learned Judge of the Court below extended the interim order of injunction granted on 1st October, 2013 till the disposal of the said Misc. Appeal.
Finding of the Court:
1. Non-compliance with Order 39 Rules 3(a) and (b) of the Code of Civil Procedure by the appellants in letter and spirit. 2. Failure to consider the objections raised by the petitioner by assigning specific reasons. 3. Violation of the direction given by this court on 19.12.2013 in C.O. No.4053 of 2013. 4. Violation of the principles of natural justice. 5. The impugned order is arbitrary, fanciful, and vague as it lacks specific reasons.
Issues: 1. Whether the appellants complied with the provisions of Order 39 Rule 3 (a) and (b) of the Code of Civil Procedure, 1973? 2. Whether the First Appellate Court was justified in extending the order of interim injunction without considering the objections raised by the petitioner? 3. Whether this court can exercise the jurisdiction under Article 227 of the Constitution of India to interfere with the impugned order?
Ratio Decidendi: 1. The appellants failed to comply with the provisions of Order 39 Rule 3 (a) and (b) of the Code of Civil Procedure by not supplying a copy of the plaint to the respondents and supplying an incomplete memorandum of appeal. 2. The First Appellate Court erred in extending the order of interim injunction without considering the objections raised by the petitioner and without assigning specific reasons, in violation of the direction given by this court on 19.12.2013 in C.O. No.4053 of 2013. 3. This court can exercise the jurisdiction under Article 227 of the Constitution of India to interfere with the impugned order as the First Appellate Court has failed to exercise the jurisdiction conferred on it by law and thereby failure of justice or grave injustice has occasioned.
Final Decision: The impugned order dated 7th January, 2014 passed by Learned Additional District Judge, 14th Court, Alipore in Misc. Appeal No.472 of 2013 and the order dated 27.11.2013 passed by Learned Additional District Judge, 5th Court, Alipore in Misc. Appeal No.472 of 2013 are set aside. The First Appellate Court is directed to dispose of the application under Section 151 of the Code of Civil Procedure and thereafter to dispose of the Misc. Appeal No.472 of 2013 within ten days from the date of communication of this order.
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R. K. Bag, J.
This application under Article 227 of the Constitution of India is directed against order dated 7th January, 2014 passed by Learned Additional District Judge, 14th Court, Alipore, South 24-Parganas in Misc. Appeal No.472 of 2013 arising out of order dated 20.09.2013 passed by Learned Civil Judge (Senior Division), 2nd Court, Alipore in Title Suit No.22050 of 2013, by which Learned Judge of the Court below extended the interim order of injunction granted on 1st October, 2013 till the disposal of the said Misc. Appeal.
2. It appears from the materials on record that the Opposite Parties No.1 to 10 instituted Title Suit No.22050 of 2013 against the petitioner and the Opposite Parties No.11 to 27 in the Court of Learned Civil Judge (Senior Division), 2nd Court, Alipore for declaration with regard to shares in the company, partition, mandatory injunction and permanent injunction. The Opposite Parties No.1 to 10/plaintiffs filed an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure in the said suit praying for an order of ad interim injunction and the said prayer was refused by the Trial Court by passing order on 20.09.2013. The Opposite Parties No.1 to 10 challenged the order dated 20.09.2013 passed by the Trial Court in Title Suit No.22050 of 2013 by preferring Misc. Appeal No.472 of 2013 before the Court of Learned District Judge, Alipore. By filing an application under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure the Opposite Parties No.1 to 10/appellants prayed for an order of ad interim injunction against the present petitioner and the Opposite Parties No.11 to 27. On 01.10.2013 Learned District Judge, Alipore passed an order of ad interim injunction directing both the parties to maintain status quo in respect of negotiating with the Respondent No.15 i.e. the present petitioner and/or surrendering the deed of lease dated 12.04.2006 in favour of the Respondent No.17 or to hand over possession of the suit premises in favour of the Respondent No.17 and from alienating or encumbering over the property described in Schedule - I of the application for temporary injunction for a limited period till 08.11.2013. The said order of ad interim injunction passed on 01.10.2013 in Misc. Appeal No.472 of 2013 was extended by order dated 8th November, 2013 and thereafter again extended till 27th November, 2013.
3. It further appears from record that the petitioner being the Respondent No.15 of Misc. Appeal No.472 of 2013 challenged the order dated 08.11.2013 passed by Learned District Judge, Alipore in the said Misc. Appeal by filing C.O. No.3879 of 2013. By passing an order on 26.11.2013 in C.O. No.3879 of 2013 this Court gave direction to the First Appellate Court to consider whether the appellants have complied with the provisions of Order 39 Rule 3(a) and (b) of the Code of Civil Procedure pursuant to the order passed on 1st October, 2013 and to dispose of the objection raised by the present petitioner against the application for extension of interim order by giving adequate reasons and to pass appropriate order on matter of injunction only after disposal of such objection and to complete the entire exercise within 27th November, 2013.
4. It also appears from record that on 27.11.2013 Learned Additional District Judge, 5th Court, Alipore again extended the order of ad interim injunction till 21.12.2013 by holding that the appellants have complied with the provision of Order 39 Rule 3(a) and (b) of the Code of Civil Procedure on 03.10.2013 and by rejecting the objection raised by the present petitioner without assigning specific reasons. This order dated 27.11.2013 passed by Learned First Appellate Court in Misc. Appeal No.472 of 2013 was again challenged before this court by the present petitioner by filing C.O. No.4053 of 2013. By passing order on 19.12.2013 in C.O. No.4053 of 2013 this court observed that the First Appellate Court was satisfied about compliance wit
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