Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Gau) 575

IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
ARUN DEV CHOUDHURY, J.
Dr. Nilufar Rahman And Anr – Appellants
Versus
Afroza Rahman And Anr – Respondents
CRP 96 of 2022
Decided on : 20-06-2023

Advocates:
Advocate Appeared:
For the Appellant : MR. S CHAMARIA
For the Respondent: MR. A BARUAH

Point of Law: To reverse an order in exercise of revisional power court must come to a conclusion firstly that subordinate court has exercised jurisdiction beyond its limit.

Headnote:
Code of Civil Procedure, 1908 - Order 39 Rule 1, 2, A - Declaration of right, title and interest - Permanent injunction - Deed of assignment - Petitioners seeking declaration of right, title and interest and permanent injunction against defendants - Plaintiffs prayed that a deed of assignment is declared to be cancelled – It is more or less allegation that they were continuing in premises and they have been restrained after pandemic was over - Para 23.
Finding of the Court: Pursuant to execution of deed of assignment defendants transferred their shares and resigned from company - Document shows that entire share of company was assigned and transferred to predecessor-in-interest of defendant Nos. 1 and 2 - Refusal of injunction to allow plaintiff to operate company from premises situated in property belonging to schedule company No. 3 cannot be termed as irrational or perverse or capricious or arbitrary - In considered opinion of court injunction is a discretionary and equitable relief and such discretion has rightly been exercised by learned trial court and affirmed by learned appellate court and therefore, court in exercise of revisional power would not like to entertain such issue in exercise of revisional power to once again reopen factual determination that has already been made by both learned courts below not being perversed - Court does not find fault in determination made by both courts.
Result: Petition dismissed.

JUDGMENT :

1. Heard Mr. S Chamaria, learned counsel for the petitioners. Also heard Mr. AK Srivastava, learned counsel for the respondents.

2. The present revision petition is filed challenging legality and validity of the judgment and order dated 05.03.2022 passed by learned Additional District Judge No. 3, Kamrup (M), in Misc. Appeal No. 42/2021, whereby the judgment and order dated 22.04.2021 passed by the learned Civil Judge No. 3 in Misc Case No. 108/2021 arising out of TS No. 305/2015 was upheld.

3. The petitioners herein filed TS No. 305/2015 in the court of learned Civil Judge No. 3 seeking declaration of right, title and interest and permanent injunction against the defendants. The plaintiffs prayed that a deed of assignment dated 08.03.2007 is declared to be cancelled for the reason of same being not acted upon. The further prayer of the plaintiffs was for a declaration of right of the plaintiffs and defendants over the suit premises. The suit premises are three properties, which are described as Property No. 1, Property No. 2 and Property No. 3. Property No. 1 is one M/s Mohijuli Tea Company Pvt. Ltd. including his land and building, Property No. 2 is one Tezalpatty Division & Tea Estate including landed property and Property No. 3 is a plot of land belonging to one Rahman Properties Pvt. Ltd.

4. Along with the plaint, the plaintiffs also filed an application under Order 39 Rule 1 and 2, which was registered as Misc (J) Case No. 330/2015 seeking injunction against the suit properties. The basic allegation seeking such injunction was that the defendant No. 1 has been planning to transfer illegally some of the valuable properties and shares of the Property.

5. It was also a contention that the property has not been divided and partitioned between the plaintiffs and defendants and therefore the defendants are having no right to alienate the aforesaid property. The prayer of order of grant of status quo was not objected by the defendants’ so far the same relates to Property Nos. 1 and 2. However, so far relating to the Property No. 3, it was contended by the defendants that there was a deed of assignment and same has been acted upon long back and the consideration thereof has been received by the plaintiffs. Therefore, they cannot challenge the said deed of assignment and accordingly they were not entitled to any order of injunction with regard to Property No. 3.

6. The learned court below considering the fact that the validity of the deed of assignment will be decided in the main suit after going through the evidence laid from both the sides the ad interim status quo order passed on 20.08.2015 was made absolute. Accordingly, status quo was directed to be maintained with regard to Property Nos. 1 and 2 till disposal of the main suit.

7. While the suit was proceeding, the plaintiffs once again filed an application under Order 39 Rule 1 and 2, which was registered as Misc. Case No. 108/2021 with a prayer that the defendants be restrained from disturbing the day to day activities of schedule 1 and 2 properties, which are operated by the petitioners from the registered office situated at schedule 3 properties.

8. The background fact of seeking such injunction, pleaded in the aforesaid petition was that during pandemic situation the hotel situated in the property No. 3 was declared as quarantine centre and the defendants could not carry on their necessary activities and could not operate from the aforesaid premises. However, after the pandemic situation was over, the defendants debarred the petitioners from operating its activities from the said hotel and rather threatened the defendants to take back all the articles from the said office. Such petition was resisted by the defendants by filing written objection, inter-alia, contending that M/s Rahman Properties Pvt. Ltd. (Property No. 3) was incorporated under Companies Act, 1956 and subsequently the property was transferred in the name of the company.

9. It was also contended that th