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IN THE HIGH COURT OF GAUHATI
D. Biswas, Actg. C.J. and Brojendra Prasad Katakey, J.
Pranab Kumar Banerjee and Anr. - Appellants
Vs.
Momin Ali alias Mukib Ali - Respondent
FAO No. 40 of 2005
Decided On: 05.12.2005
Injunction - Suit Land Dispute - Order 39, Rules 1 and 2 CPC - [T.S. No. 494/96, Section 145 CrPC, Article 58 of the Limitation Act, Section 3 of the Limitation Act, Order 39, Rules 1 and 2 CPC, Section 47 of the Civil Procedure Code, Section 24 of the CPC, Article 227 of the Constitution of India] - The court discussed the legal provisions related to the grant of temporary injunction, the jurisdiction of the court to entertain a time-barred suit, and the consequences of a decree obtained in a time-barred suit. The court highlighted the need for a strong prima facie case, balance of convenience, and irreparable loss or injury while granting or refusing injunction. It emphasized that a decree passed in a time-barred suit is not necessarily a nullity if the court had jurisdiction over the parties or the subject matter of the suit.
Fact of the Case:
The respondent filed a suit challenging a decree passed in a previous suit and obtained a temporary injunction restraining the appellants from interfering with his possession over the suit land. The appellants appealed against the injunction order.
Finding of the Court:
The court found that the respondent failed to make out a strong prima facie case for granting injunction. The balance of convenience was not in favor of the respondent, and the order of injunction was set aside and quashed.
Issues: The issues involved the grant of temporary injunction, the jurisdiction of the court to entertain a time-barred suit, and the consequences of a decree obtained in a time-barred suit.
Ratio Decidendi: The court emphasized the need for a strong prima facie case, balance of convenience, and irreparable loss or injury while granting or refusing injunction. It also clarified that a decree passed in a time-barred suit is not necessarily a nullity if the court had jurisdiction over the parties or the subject matter of the suit.
Final Decision: The appeal was allowed, and the order of injunction was set aside and quashed. The respondent was directed to pay the appellants' costs within two months.
B.P. Katakey, J.
1. This appeal is directed against the order of temporary injunction dated 3.11.2005 passed by the learned Civil Judge (Senior Division ) No. 1, Guwahati in Misc. (J) Case No. 114/2005 arising out of Title Suit No. 202/2005 restraining the appellants/defendants from interfering with the possession of the respondent/plaintiff over the suit land described in Schedule 'C' of the plaint and Schedule 'B' of Title Suit No. 494/96, till disposal of the suit.
2. A suit being Title Suit No. 494/96 was filed by the appellants as plaintiffs against the respondent as defendant, before the then Sadar Munsiff, Guwahati praying for declaration of right title and interest in respect of the Schedule 'A' and 'B' property and also for recovery of khas possession by evicting the present respondent and others from the said suit property. On being decreed, the appeal being Title Appeal No. 80/03 was preferred by the present respondent in the Court of the learned Civil Judge (Senior Division), Kamrup, Guwahati which was dismissed vide judgment dated 30.7.2004 affirming the judgment and decree passed by the learned Trial court. Being aggrieved, the respondent preferred R.S.A. No. 159/04 before the High Court which was, however, dismissed vide judgment dated 1.10.2004 as no substantial question of law was involved in the appeal. The Special Leave Petition being S.L.P. (Civil) No. 23651/04 filed by the respondent challenging the order dated 1.10.2004 passed in R.S.A. No. 159/04, was also dismissed by the Hon'ble Supreme Court vide order dated 29.11.2004. The appellants after dismissal of the Second Appeal by the High Court, put the decree passed in Title Suit No. 494/96 into execution, wherein,the respondent on 11.10.2004 filed an application for stay execution of the said decree on the ground that he was taking steps in filing SLP before the Hon'ble Supreme Court, and hence the execution may be stayed till the SLP is taken up for consideration by the said Court. The respondent in the said application also undertook to vacate the suit premises, in the event, the SLP is dismissed by the Hon'ble Supreme Court. On the basis of the said application, the execution proceeding was stayed till the SLP is decided. After dismissal of the SLP, the respondent filed objection under Section 47 of the Civil Procedure Code before the learned Executing Court raising objection to the executability of the decree on the ground that the decreetal land in Title Suit No. 494/96 is not of the suit patta involved in the said suit. An application under Section 151 CPC was also thereafter filed by the respondent before the learned Executing Court objecting the execution of the decree on the ground that the Court which passed the order lacked inherent jurisdiction for entertaining the suit as the suit filed by the appellants as plaintiff was barred by time. Another application was filed by the respondent in the learned Executing Court praying for allowing him to adduce evidence in support of the said grounds taken in such objection, which was rejected by the learned Executing Court vide order dated 3.2.2005, against which an application under Article 227 of the Constitution of India was filed by the respondents before the High Court, which was numbered as WP(C) No. 2265/05. The said writ petition was dismissed by judgment and order dated 6.4.2005. Thereafter, an application under Section 24, read with Section151 CPC was filed for transfer of the Title Execution Case No. 53/04 from the Court of the learned Civil Judge (Junior Division) No. 1, Guwahati to any other Court of competent jurisdiction, before the High Court, which was numbered as Transfer Petition(C) No. 28/2005. The same was also dismissed by the High Court vide judgment and order dated 15.9.2005. The respondent as plaintiff, in the meantime, on 8.6.2005 filed Title Suit No. 202/05 in the Court of the learned Civil Judge (Senior Division) at Guwahati against the appellants as defendants praying f
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