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IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
SAHIDULLAH MUNSHI, J.
Smt. Sumati Das - Petitioner
Versus
Sri Bidhan Talukdar & Ors. - Opposite Parties
C.O. No. 2754 of 2014
Decided On : 19-08-2016
INJUNCTION - TEMPORARY INJUNCTION - ORDER XXXIX RULES 1 AND 2 OF THE CODE OF CIVIL PROCEDURE - STATUS QUO - BALANCE OF CONVENIENCE AND INCONVENIENCE - IRREPARABLE LOSS AND INJURY - ADMISSION OF TITLE BY PRECEDENT OWNER - PRIMA FACIE CASE - ADMISSION BY PROFORMA DEFENDANT - ADMISSION OF TITLE - TRANSFERABLE TITLE - BALANCE OF CONVENIENCE - IRREPARABLE LOSS AND INJURY - POWER OF COURT UNDER ORDER XXXIX RULES 1 AND 2 OF THE CODE OF CIVIL PROCEDURE - MINI TRIAL - CONFUSION OF POWERS - ORDER XXXIX RULE 1 CLAUSES (A), (B) AND (C) - CONFUSION OF POWERS - RELIEF CLAIMED IN PLAINT - ORDER IMPUGNED SET ASIDE - ORDER OF TRIAL COURT AFFIRMED.
Fact of the Case:
Plaintiff, claiming to be the absolute owner and in possession of the suit property, filed a suit for declaration and permanent injunction. An application for a temporary injunction in the form of status quo was granted by the trial court. On appeal, the appellate court reversed the order, holding that the plaintiff had not made out a prima facie case and that the alleged injury could be compensated by monetary relief.
Finding of the Court:
The High Court held that the plaintiff had made out a prima facie case based on the admission of title by the previous owner and that the balance of convenience and inconvenience favored the grant of injunction. The High Court also held that the appellate court had erred in investigating the title of the parties, which was not the job of the court at the interlocutory stage.
Issues: 1. Whether the plaintiff had made out a prima facie case for the grant of a temporary injunction? 2. Whether the balance of convenience and inconvenience favored the grant of injunction? 3. Whether the appellate court had erred in investigating the title of the parties?
Ratio Decidendi: 1. In an application for temporary injunction, the court is required to consider the prima facie case, the balance of convenience and inconvenience, and the irreparable loss and injury that might be suffered by the plaintiff. 2. The plaintiff had made out a prima facie case based on the admission of title by the previous owner. 3. The balance of convenience and inconvenience favored the grant of injunction, as the plaintiff was apprehending dispossession from her residential place and had made repeated diaries against the defendant before the police authorities. 4. The appellate court had erred in investigating the title of the parties, which was not the job of the court at the interlocutory stage.
Final Decision: The order of the appellate court was set aside and the order of the trial court granting the injunction was affirmed.
Sahidullah Munshi, J.
1. This revisional application is directed against order dated 29th April, 2014, passed by the learned Civil Judge (Senior Division), Baruipur, in Misc. Appeal No.19 of 2013, thereby reversing the order passed by the learned Trial Court granting an order of temporary injunction in the form of status quo. The plaintiff in a suit for declaration and permanent injunction is the petitioner in this revisional application. The plaintiff claimed that he is the absolute owner and in possession of the demarcated 161/2 decimals of land and property appertaining to Mouza Rajpur, more fully and particularly described in the Schedule of the plaint. In the said suit the plaintiff filed an application under Order XXXIX Rules 1 and 2 read with Section 151 of the Code of Civil Procedure. In the temporary injunction application it is the plaintiff’s case that she has purchased the suit property vide Registered Deed No.422 dated 1st February, 1972, measuring about 161/2 decimals from one Kanak Chandra Nath. After purchase of the same the plaintiff has converted some portion of the said property into a tank on the southern side of the suit plot and on the high land she constructed a mud-built tile shed structure. The plaintiff and her family members have been possessing the suit property, continuously and uninterruptedly since the purchase on 1st February, 1972. It has been stated that, although, the defendant no.1 has no manner of title and possession over the suit property he is trying to disturb the possession of the plaintiff by his overt act for which the plaintiff made General Diary with the local police station twice. According to the plaintiff, the defendant even attempted to trespass over the plaintiff’s land. The plaintiff has further stated that demarcated Western part of the suit plot originally belonged to Smt. Hansi Bala Dey and her husband, Nani Gopal Dey (since deceased). His legal heirs are proforma defendant nos.2 to 4. Against such proforma defendants the plaintiff has sought no relief. The said Hansi Bala Dey filed a suit being Title Suit No.349 of 1989 in which they admitted title and possession of the plaintiff in the suit property. The said suit was, ultimately, dismissed.
2. Appearing in support of the plaintiff/petitioner Mr. Sahoo has drawn the attention of this Court that entire plot being Dag No.539 contains a total of 2.03 acres of land of which the plaintiff has a demarcated portion of 161/2 decimals equivalent to 10 cottahs of land. He has drawn attention of this Court on the documents which were filed before the Court below one of which is the injunction application filed by Smt. Hansi Bala Dey in Title Suit No.349 of 1989 wherein it was admitted that defendant in that suit, namely, Sumati Bala Das & Ors. had their land measuring 10 cottahs on the South-Eastern corner of plot no.539. It has been also stated that on the West of that 10 cottahs of land Smt. Hansi Bala Dey had remaining land in plot no.539 out of 2.03 acres. The said Hansi Bala Dey is proforma defendant in the present suit.
3. With regard to the order of the status quo passed by the learned Trial Court Mr. Bhattacharya, appearing for the opposite parties, has drawn the attention of this Court to a reported judgment in the case of Kishore Kumar Khaitan & Anr. – Vs. – Praveen Kumar Singh reported in (2006)3 SCC 312. Referring to the aforesaid judgment Mr. Bhattacharya submitted that when a Court passes an order of injunction in the form of status quo it must specify about the status of the property and as to who is in possession thereof. But, in the present case, the learned Civil Judge (Junior Division) had failed to mention the same. However, without repetition it can be mentioned that plaintiff in her application for injunction, has sufficiently averred that she is in possession of the land and when the learned Court below has mentioned in the order the he is passing the order of injunction in the form of status quo, af
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