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HIGH COURT AT CALCUTTA
Jyotirmay Bhattacharya, Ishan Chandra Das, JJ.
Indranil Mukherjee – Appellant
Versus
Jayeeta Mukherjee & Ors. – Respondents
F.M.A.T. 1008 of 2016(CAN 9570 of 2016)
Decided on : 21-11-2016.
INJUNCTION - CAVEAT - ORDER 7 RULE 1 CPC - SUMMARY OF THE CASE: The appellant challenged the trial court's order refusing his request for an ad-interim injunction. The appellant claimed that his wife was misappropriating funds from their joint accounts, and he sought to prevent her from doing so. The respondent wife argued that the interim order was obtained without notice to her, despite a caveat being lodged. COURT ANALYSIS AND CONCLUSION: The court noted that no caveat was filed when the appeal was filed. However, the respondent wife alleged that the caveat was lodged after the appeal was filed and that notice of the caveat was served on the appellant. The court found it impossible to verify the service of the notice. The court held that even if service was effected, the court could recall the ad-interim order and hear the application on merit in the presence of both parties. ISSUES: Whether the interim order was obtained without notice to the respondent wife, despite a caveat being lodged. Whether the court could recall the ad-interim order and hear the application on merit in the presence of both parties. RATIO DECIDENDI: The court held that the interim order could be recalled and the application could be heard on merit in the presence of both parties, even if service of the caveat was effected. FINAL DECISION: The court directed the respondents to file their affidavits in connection with the plaintiff's application for temporary injunction within two weeks from the date of the order, and the plaintiff/appellant to file a reply, if any, within a week thereafter. The court requested the learned Trial Judge to make all endeavors to dispose of the plaintiff's application for temporary injunction by the end of January 2017.
Fact of the Case:
The appellant challenged the trial court's order refusing his request for an ad-interim injunction. The appellant claimed that his wife was misappropriating funds from their joint accounts, and he sought to prevent her from doing so. The respondent wife argued that the interim order was obtained without notice to her, despite a caveat being lodged.
Finding of the Court:
The court found it impossible to verify the service of the notice. The court held that even if service was effected, the court could recall the ad-interim order and hear the application on merit in the presence of both parties.
Issues: Whether the interim order was obtained without notice to the respondent wife, despite a caveat being lodged. Whether the court could recall the ad-interim order and hear the application on merit in the presence of both parties.
Ratio Decidendi: The court held that the interim order could be recalled and the application could be heard on merit in the presence of both parties, even if service of the caveat was effected.
Final Decision: The court directed the respondents to file their affidavits in connection with the plaintiff's application for temporary injunction within two weeks from the date of the order, and the plaintiff/appellant to file a reply, if any, within a week thereafter. The court requested the learned Trial Judge to make all endeavors to dispose of the plaintiff's application for temporary injunction by the end of January 2017.
1. This First Miscellaneous Appeal is directed against an order being no. 2 dated 30th August, 2006 passed by the learned Civil Judge, Senior Division, 2nd Court at Barasat, in Title Suit No. 707 of 2016 at the instance of the plaintiff/appellant.
2. By the impugned order, the plaintiff's prayer for ad-interim injunction was refused by the learned Trial Judge primarily on the ground of lack of urgency involved in the matter.
3. The instant appeal was admitted for hearing on 29th September, 2016. After the appeal was admitted, we, on an application for interim injunction filed by the appellant in this appeal, passed the following ad-interim injunction:
"The defendant/respondent no. 1 is restrained from operating the bank account and/or encashing any fixed deposit, as mentioned in schedule - A2 & A-5 of the injunction application till 8th November, 2016 or until further order whichever is earlier.
The respondent no. 1 is restrained from dealing with the allotment of shares in the Abahan Housing Cooperative Society Limited, in the plot of land bearing no. CC-23, as mentioned in Sl. No.1 under Schedule 'B' of the injunction application and the respondent no. 2 is also restrained from dealing with the shares in the Abahan Housing Cooperative Society Limited in the plot of land bearing no. CC-23, Action Area - I, New Town, Calcutta till 8th November, 2016 or until further orders whichever is earlier."
4. Such ad-interim order was passed by this Court as we were prima-facie satisfied that the appellant had source of income and had substantial income to invest and the investments made by him either in the joint account or in the account standing in the name of the wife, are the investment of the appellant. On the contrary, we found that the wife had no source of income to invest such huge amount in several accounts of different descriptions in different banks.
5. Allegations which were made by the appellant against his wife regarding syphoning of money by her from those accounts, are the prima-facie proof of the case made out by the appellant in the application for injunction.
6. The respondent/wife filed an application under Section 125 of the Criminal Procedure Code praying for maintenance against the appellant stating therein that she has no source of income.
7. Considering the facts and circumstances as stated above, we passed the aforesaid ad-interim order of injunction as we thought that status-quo with regard to the savings lying in several deposits and the shares in the flat in the Housing Co-operative should be maintained until the plaintiff's application for temporary injunction is finally decided by the learned Trial Judge.
8. The ad-interim order of injunction which was passed for a limited period was subsequently extended till 30th November, 2016.
9. The respondent no. 1/wife has entered appearance in this appeal and has filed an application for vacating the interim order passed by this Court primarily on the ground that despite a caveat was lodged by her in connection with this appeal, no notice was served upon her either before moving the appeal or before moving the application for interim injunction filed in connection therewith.
10. Admittedly, no caveat was filed at a point of time when the appeal was filed. Even the concerned department has also certified that no caveat was filed in connection with this appeal.
11. Learned advocate appearing for the respondent no. 1 submits that caveat was lodged after the appeal was filed. It is alleged by the respondent no. 1 that notice relating to such caveat was served upon the appellant even before the appeal was moved for its admission. A track report relating to service of such notice has also been annexed alongwith the said application for modification. It is, thus, claimed that since the interim order was obtained by the appellant without service of notice upon the respondent no. 1, despite the caveat was lodged by her, such interim order should be vacated im
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