Calcutta High Court (Appellete Side)
Munni Begum vs Rabia Ahmed & Ors on 30 October, 2019
Author: Soumen Sen
Bench: Soumen Sen
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30.10.2019
S/L No.07
Court No.37
(gc)
FMAT 804 of 2019
With
CAN 8192 of 2019
Munni Begum
Vs.
Rabia Ahmed & Ors.
Mr. Suddhasatva Banerjee,
Md. Zohaib Rauf,
...for the Appellant.
Mr. Syed E. Huda,
Mr. A.K. Singh,
...for the Respondent No.1.
Mr. Aniruddha Chatterjee, Mr. Soham Mukherjee, ...for the Respondent Nos. 2 to 5.
This appeal is directed against an order dated 17th July, 2019 by which the learned IXth Bench, City Civil Court has disposed of the application filed by the plaintiff under Order 39 Rules 1 and 2 of the Code of Civil Procedure by extending the ad-interim ex parte order of status quo passed on 3rd December, 2018. The defendant No.1 is the appellant. The defendant No.1 is supported by defendant Nos.2 to 5.
Mr. Suddhasatva Banerjee, learned Counsel appearing on behalf of the defendant No.1 has submitted that in disposing of the application under Order 39 Rules 1 and 2 of the Code of Civil Procedure, the learned Trial Judge has not adverted to any of the 2 pleadings and the objections raised by the defendant No.1 at the time of disposal of the injunction application.
Mr. Aniruddha Chatterjee, learned Counsel appearing on behalf of the defendant Nos.2 to 5 has supported Mr. Banerjee has further argued that notwithstanding the fact that the application under Order 39 Rules 1 and 2 of the Code of Civil Procedure was filed by his client on 22nd January, 2019, the Trial Court did not advert to any of the grounds raised in the said application at the time of disposal of the injunction application.
We have perused the order under appeal. It appears that the Trial Court has made it clear by extending the order of status quo passed ex parte at a specious plea that nobody had challenged the ad-interim order of injunction before any higher forum. We are in agreement with the submissions made by the learned Counsel for the appellant as well as for the defendant Nos.2 to 5 that this order in unreasoned as it fails to take into consideration the objections raised by the appellant and the defendant Nos.2 to 5 before the learned Trial Judge at the time of final consideration of the injunction application.
It is elementary that the consideration at the time of passing an ex parte ad-interim order and at the time of final disposal of the injunction application would be different. Although some of the tests may be the same. However, there should be some reflection in the order if the Court wants to justify the ex parte ad-interim order in its final order.
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Apart from the mere narration of objections raised by Mr. Chatterjee's client before the learned Trial Judge, we do not find any consideration of those objections on merits that are required at the time of ad-interim stay in extending ad-interim order of injunction. However, in view of the fact that the ex parte ad-interim order continued since 3rd December, 2018 and made absolute on 17th July, 2019.
We dispose of this application by directing the learned Trial Court to hear out the injunction application afresh on merits in their petition filed under Order 39 Rule 4 of the Code of Civil Procedure dated 22nd January, 2019 after taking into consideration the objections raised by the appellant as well as by the respondent Nos.2 to 5 within a period of 12 weeks from the date of communication of this order.
The order of status quo shall continue till the disposal of the injunction application along with the connected application. We have informed by the learned Counsel for the parties that the pleadings have completed. The learned Trial Court shall decide the application on the basis of the existing pleading.
The counsel for the applicant as well as for the defendant nos. 2 to 5 have submitted that the Trial Court has not decided the question of jurisdiction of the Civil Court to try the issues relating to the jurisdiction of the Civil Court to try, receive and adjudicate the claim of the plaintiff. At the interlocutory stage the Court is only 4 required to form a prima facie opinion as to jurisdiction and if the Court feels that a detailed enquiry is necessary to arrive at a finding on the aspect of jurisdiction the Court may frame an issue with regard to the jurisdiction at the trial of the suit and decided it finally.
Mr. Chatterjee has argued that it would be eminently clear from the reading of the provisions of the West Bengal Thika Tenancy (Acquisition and Regulation) Act 2001 that the issues raised by the plaintiff can only be decided by the Thika Controller under Section 21 of the said Act and not by a Civil Court is in our opinion is a matter to be decided by the Trial Judge in disposing of the interlocutory application on merits. The ouster of jurisdiction of the Civil Court shall not be easily inferred and unless its jurisdiction is expressly ousted or there is an ouster by necessary implications by the statute the Civil Court would continue to retain jurisdiction to try all suits of a Civil nature. The test to be adopted while considering a question as to ouster of Civil Court jurisdiction was summarised in 1968 by a Constitution Bench of the Supreme Court in Dhulabhai Vs. State of Madhya Pradesh reported at AIR 1969 SC page 78. The said Judgment has recently been considered by the Hon'ble Supreme Court in Civil Appeal No.8069 of 2019 Arising out of SLP(C) No. 11852 of 2019 (M. Horiharasudhan Vs. R. Karmegam) decided on 17.10.2019, in which seven principles as enumerated in Dhulabhai (supra) has been reiterated, they are:
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"1. Where the statute gives a finality to the orders of the special tribunals the Civil Courts' jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.
2. Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court.
Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in Civil courts are prescribed by the said statute or not.
3. Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals.6
4. When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit.
5. Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected a suit lies.
6. Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry.
7. An exclusion of the jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply."
In view of the aforesaid the impugned order is modified to the aforesaid extent. All other directions in the order dated 17th July, 2019, however, have remained untouched.
We also make it clear that we have not gone into the merits of the matter and the Trial Court shall decide the matter impartially being uninfluenced by any observation made in the impugned order or by us in this order.
7The appeal and the application stand disposed of.
(Soumen Sen, J.) (Saugata Bhattacharyya, J.)