Calcutta High Court
Dilip Kumar Biswas vs Kamalendu Chanda on 24 June, 1986
Equivalent citations: AIR1987CAL172, AIR 1987 CALCUTTA 172
ORDER Sankar Bhattacharyya, J.
1. This revisional application seeks to challenge the order of the learned Additional District Judge, 5th Court, Alipore. passed in Misc. Appeal No. 450 of 1981, whereby the order of ad interim injunction passed by the learned Munsif, 2nd Court, Alipore, against the opposite party was set aside. The facts leading on to the application are as under.
2. In a suit for eviction of the petitioner by the opposite party, the petitioner moved an application for temporary injunction restraining the opposite party, his men and agents from interfering with the supply of electricity to the suit premises or preventing the petitioner's access to the electric meter box and the main switch for effecting repair and/or restoring electricity, by erecting a partition wall.
3. The learned Munsif, on the same day, passed an ex parte order directing the opposite party to maintain status quo with respect to the electric meter and the main switch of the suit premises till the disposal of the application for temporary injunction. Against the said order the opposite party took an appeal which was heard and disposed of by the learned Additional District Judge, 5th Court, Alipore who not only set aside the impugned order of the learned Munsif but also rejected the petitioner's application for temporary injunction. Aggrieved thereby, the petitioner has moved this court in revision and obtained the present Rule.
4. On a perusal of the impugned judgment it appears that the appeal was allowed primarily on two grounds, namely (i) the ex parte order was passed by the learned Munsif during the subsistence of an order of this court passed in connection with another mailer staying all further proceedings in the said suit and (ii) the ex parte order was made without notice to the plaintiff and without recording the reason as required by the Proviso to Order 39, Rule 3, Civil P.C. that the object of granting the injunction would be defeated by the delay in giving notice of the application to the opposite party.
5. Mr. Dasgupta, appearing in support of the rule, assails both the grounds as wholly untenable and contends that the learned Judge fell into a serious error in rejecting the application for temporary injunction on merits although, it was still pending before the learned Munsif for disposal.
6. Mr. Dasgupta has cited before me the Division Bench decision of the Madhya Pradesh High Court in the case of Madanlal v. Kamlesh, to show that the first ground for allowing the application was absolutely misconceived.
7. In the case under reference, the defence against delivery of possession in a suit for eviction was struck out by the trial court and the order was challenged before the High Court in revision whereupon the High Court passed an order staying all further proceedings before the trial court. During the pendency of the Civil revision case, the landlady moved an application before the trial court under Order 38, Rule 5, Civil P.C. for attachment before judgment and the trial court passed a conditional order which was subsequently confirmed by it. The question that arose before the Division Bench on a reference by a Single Bench was whether the trial court was competent to pass an order of attachment before judgment during the subsistence of the stay order passed by the High Court.
8. Their Lordships held, after an elaborate discussion, that the subsistence of a stay order passed by this High Court does not preclude the trial court from entertaining applications of an urgent nature e.g. application for temporary injunction, application for appointment of Receiver, application for attachment before judgment and the like, although the trial court will have no jurisdiction to proceed with the trial of the suit on merits.
9. Having gone through the judgment, I respectfully agree with the view taken by their Lordships and hold that notwithstanding the stay order passed by this court the learned Munsif was competent to entertain and dispose of the application for ad interim injunction.
10. With regard to the Second ground, it should be borne in mind that the application for temporary injunction was moved by the defendant and not by the plaintiff. Therefore, copy of the application could be served on the plaintiffs lawyer and, in that event, the order could be passed after giving him an opportunity of making his submissions. When the plaintiff was already on the record, it was highly improper on the part of the defendant to obtain an ex parte order from the court behind his back.
11. Mr. Dasgupta contends that in passing the ex parte order the learned Munsif substantially complied with the provisions of Order 39 Rule 3, Civil P.C. by recording the reasons for issue of the ex parte order. He has invited my attention to a portion of the order which is as under.
12. "Considering the facts and circumstances and other urgency of the matter, I am granting status quo only. The plaintiff is directed to maintain status quo in respect of the electric meter and main switch meant for the defendant's flat, till the disposal of the injunction petition."
13. In my opinion, this is not a substantial compliance with the provisions of Order 39, Rule 3, Civil P.C. under which, the learned Munsif was obligated to record the finding that the object of granting the injunction would be defeated by the delay that would be caused in giving notice of the application to the plaintiff. Had he cared to consider this aspect of the matter, he would have certainly discovered that there could be no delay in giving notice of the application to the plaintiff's lawyer. Obtaining an ex parte order behind the back of the adversary should not be encouraged by the court and on this score alone, the ex parte order passed by the learned Munsif was liable to be struck down.
14. The next question is whether the learned Additional District Judge was justified in disposing, of the application for temporary injunction while hearing the appeal against the order refusing to grant ad interim injunction. The reason for this unusual action appears to be certain subsequent developments which were brought to the notice of the learned Judge while he was hearing the appeal.
15. It appears from the impugned judgment that sometime the ad interim injunction was passed by the learned Munsif, the opposite party erected a wooden door thereby blocking the petitioner's access to the electric meter and the main switch box with respect to which the order was passed. The petitioner moved an application before the learned Munsif for temporary mandatory injunction for removing the door and the application was allowed but the order was set aside by this court in revision.
16. It will thus appear that when the appeal was being heard by the learned Additional District Judge, the application for temporary injunction had already become infructuous and therefore there could be no point in hearing of the application by the learned munsif. Mr. Dasgupta does not dispute the above position but contends that the wooden door was erected in gross violation of the interim order passed by the learned munsif. This is a different matter altogether with which this court is not concerned. If so advised, the petitioner may take appropriate action before the appropriate forum in accordance with law. For the reasons stated above, I see no substance in this revisional application nor any reason to interfere with the impugned order. In the result, the rule is discharged but without any order as to costs.