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2012 Supreme(Gau) 804
IN THE HIGH COURT OF GAUHATI
Amitava Roy and Anima Hazarika, JJ.
Abdul Rahman Seikh Son of Late Akali Seikh Owner of Imrana Brick Industry Carrying on Business At The Appellant's Own Land, of Morangaon, Post Office Borgong, Mouza and Police Station: Behali, District: Sonitpur Assam - Appellants
Vs.
Sri Rajib Borah Son of Sri Saruram Borah, Sri Mukut Bhattacharya Son of Sri Madhab Chandra Bhattacharya Both of Village Sukansuti, Post Office: Borgang, Mouza and Police Station: Behali District: Sonitpur, Assam and Md. Jainuddin Ansari Son of Late Mozaddin Ansari, Resident of Village Kuhiarbari Post Office: Eragaon, Mouza and Police Station: Behali District: Sonitpur, Assam - Respondent
FAO No. 2/2011
Decided On: 29.06.2012
Advocate Appeared:
For Appellant/Petitioner/Plaintiff:Mr. TC Khatri Senior Advocate, Mr. P Mahanta, Mr. SK Jain and Mr. B Pushilal
For Respondents/Defendant:Mr. N Dutta Senior Advocate, Ms. B Bhuyan
Headnote:
Code of Civil Procedure - Order 43 Rule 1(r) - Order 39 Rule 1 and 2 - Section 151 - Title Suit - Interim injunction order - Appellant restraining and prohibiting him from obstructing the opposite parties herein from entering into the business premises of Brick Industry and to take part in business as partners and from manufacturing and selling the bricks in the name of "IBI" or any other names except "PBI" and/or to change the existing name of brick industry to any other name. Admittedly, the appellate court hearing an appeal against such an order of injunction is required to confine itself to the legality and validity of the order and to see as to whether the learned trial Court has exercised its discretion reasonably and in a judicial manner or has ignored relevant facts as well as the following requirements before issuing an ad interim injunction in favour of the plaintiffs viz: (i) There exists a prima facie case as pleaded, necessitating protection of the plaintiffs rights by issuing an ad interim injunction; (ii) When the need for protection of the plaintiffs rights are compared with or weighed against the need for protection of the defendants rights or likely infringement of the defendants rights, the balance of convenience tilting in favour of the plaintiff, and; (iii) There is clear possibility of irreparable injury being caused to the plaintiff if temporary injunction is not granted - Court has held that a suit for rendition of account of a dissolved firm is competent under clause (a) of Sub Section (3) to which Sub Sections (1) and (2) of Section 69 of Partnership Act are not applicable - In the instant case, the suit of the opposite party/plaintiff for rendition of account of the firm, thus is not barred under Section 69 - Decisions so cited would make it clear that the appellate court would be slow to interfere with the discretion exercised by the trial court, if it is found that the said discretion has been exercised reasonably and in a judicial manner and not acted unreasonably or capriciously or has ignored relevant facts. In the instant case, the trial Court exercised the discretion reasonably in a judicial manner and within the parameters of three ingredients of Order 39 Rule 1 and 2 of the Code and, therefore, this Court do not incline to interfere with the discretion exercised by the trial Court while passing the order in Misc. (J) Case arising out of T.S. in granting ad interim injunction. For the foregoing reasons, the appeal fails and is accordingly dismissed - Learned trial Court is directed to proceed with the suit and to decide the same as expeditiously as possible in accordance with law - Interim order passed earlier stands vacated - Appeal dismissed.
Anima Hazarika, J.
1. Challenge made in the instant appeal, preferred under Order 43 Rule 1(r) of the Code of Civil Procedure (Code, for short) is against the order dated 22.12.2010 passed in Misc. (J) Case No.161/2010 arising out of Title Suit No.73/2010 on the file of the learned District Judge, Sonitpur, at Tezpur whereby and whereunder the learned District Judge, issued an ad interim injunction order in a petition filed under order 39 Rule 1 and 2 of the Code against the appellant restraining and prohibiting him from obstructing the opposite parties herein from entering into the business premises of M/s. Purbanchal Brick Industry, situated at Morangaon (Borgang) and to take part in the said business as partners and from manufacturing and selling the bricks in the name of "IBI" or any other names except "PBI" and/or to change the existing name of brick industry to any other name. Admittedly, the appellate court hearing an appeal against such an order of injunction is required to confine itself to the legality and validity of the order and to see as to whether the learned trial Court has exercised its discretion reasonably and in a judicial manner or has ignored relevant facts as well as the following requirements before issuing an ad interim injunction in favour of the plaintiffs viz:
(i) There exists a prima facie case as pleaded, necessitating protection of the plaintiff's rights by issuing an ad interim injunction;
(ii) When the need for protection of the plaintiff's rights are compared with or weighed against the need for protection of the defendant's rights or likely infringement of the defendant's rights, the balance of convenience tilting in favour of the plaintiff, and;
(iii) There is clear possibility of irreparable injury being caused to the plaintiff if temporary injunction is not granted.
In addition to the above requirements, an ad interim injunction being an equitable relief, the Court while exercising the discretion, grant such relief only, when satisfied that the conduct of the plaintiffs are free from blame and has approached the Court with clean hands.
2. Now the question left to be answered as to whether the learned trial Court while exercising the discretion has acted arbitrarily, capriciously or perversely, meaning thereby that the material placed, taken as a whole is not reasonably capable of supporting the exercise of discretion. In order to answer the questions as stated hereinabove, the Court is to look back at the pleadings averred in the plaint along with the material documents placed before the Court which is summarized hereinbelow:
3. The opposite parties herein as plaintiffs have brought the suit being T.S. No.73/2010 against the defendant/appellant herein in the Court of learned District Judge, Sonitpur seeking the following reliefs:
(a) For declaration that the plaintiffs are the partners of M/s. Purbanchal Brick Industry situated at village Sukansuti alongwith the defendants and each of the plaintiffs have 1/4th share in the said partnership business.
(b) For the rendition of accounts of the said partnership business M/s. Purbanchal Brick Industry for the year 2007-2008, 2008-2009, 2009-2010 till now and for recovery of Rs.38, 00, 000/- (Rupees thirty eight lakhs) only as share of the plaintiffs from the defendant for those period and for rendition of accounts for further period.
(c) For permanent injunction restraining and prohibiting the defendants from selling and manufacturing bricks in the name of "IBI" or any other name except "PBI" and from obstructing and interfering the plaintiffs to take part in the business of the said firm as partners and also from changing the name of the brick industry without the consent of the plaintiffs.
(d) For all cost of the suit
(e) For all other relief or reliefs as the Court may deem fit and proper.
4. Alongwith the plaint, an application under Order 39 Rule 1 and 2 and Section 151 of the Code has also been filed for granting temporary injunction against th
