Calcutta High Court (Appellete Side)
(Lipika Kar vs Chandana Kar & Anr..) on 7 November, 2017
Author: Mir Dara Sheko
Bench: Mir Dara Sheko
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7.11.2017
tg.
Sl. No. 2
CO 1633 of 2016
(Lipika Kar -vs- Chandana Kar & Anr..)
Mr. Pratik Kumar Bhattacharyya....for the petitioner
Mr. Kuntal Banerjee .....for the opposite party no.1
Mr. Subrata Bhattacharya ......for the opposite party no. 2
Let 2nd supplementary affidavit annexing copies of plaint, written statement, application for injunction and
written objection filed on behalf of the petitioner be kept on record.
Heard Mr. Pratik Kumar Bhattacharya, learned advocate representing the petitioner Smt. Lipika Devi @ Smt.
Lipika Dutta @ Lipika Dey (as mentioned in the cause title of the Title Suit no. 92 of 1997), and Mr. Kuntal Banerjee,
learned advocate representing the opposite party no.1, Smt. Chandana Kar, plaintiff of the title suit and also Mr.
Subrata Bhattacharya, learned advocate representing the proforma defendant/opposite party no.2.
The background of the matter is that the opposite party no.1 filed the Title Suit in the year 1997 for declaration
that the petitioner (Lipika) was not the legally married wife of the proforma defendant/opposite party no.2, and also, so
that Lipika cannot claim or declare herself as his wife, and, for further declaration that the plaintiff/opposite party no.1
was the legally married wife of the proforma defendant/opposite party no.2.
Almost with the cause of action made out in the plaint, the plaintiff/opposite party no.1 filed a separate
application under Order 39 Rule 1 and 2 read with Section 151 of the Code of Civil Procedure, praying for temporary
injunction as against the petitioner (Lipika) restraining from claiming or declaring herself as wife of the proforma
defendant/opposite party no.2 till disposal of the suit. Over this text there was written objection supported by affidavit
apart from documents appended thereto.
Admittedly, pending the suit there was separate application under Section 125 of the Code of Criminal
Procedure as well as a criminal proceeding under Section 498A of the Indian Penal Code initiated by the petitioner
(Lipika). Said maintenance case ended in the Court of learned concerned Magistrate directing the proforma
defendant/opposite party no.2 to pay maintenance @ Rs. 1,500/- per month. This Court has been apprised of that over
the order of said maintenance there was criminal revision preferred by proforma defendant/opposite party no.2, but said
order of maintenance is still subsisting without any alteration or change.
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Mr. Bhattacharya, however, apprised that to pursue with the order of maintenance, distress warrant was
directed. Be that as it may, it appears prima facie that said order of maintenance, which may be under challenge in any
other higher forum, has not yet been set aside, meaning thereby, there was prima facie establishment about relationship
of husband and wife between the petitioner and the opposite party no.2, which of course is to be finally adjudicated in
the regular suit, which has been initiated at the instance of the opposite party no1 claiming that she was the wife of the
opposite party no.2 and not the petitioner (Lipika).
Apart from the above materials, the prima facie merit is again apparent from the documents available from the
proceeding under Section 498A of the Indian Penal Code, on which this Court at this stage does not want to stretch
further, save and except laying prima facie observation that the text which was relied upon by the opposite party no.2
with an attempt for quashing the proceeding under Section 498A of the Indian Penal Code filed before this Court, bears
some prima facie admission about his relationship with the petitioner. It is obvious that consideration of grant or
rejection of temporary injunction is discretionary to the Court dealing with the same. The Court however is guided on
prima facie observation looking into the prima facie case, balance of convenience or inconvenience and irreparable loss
and injury.
In the instant suit filed by the opposite party no.1 in the year 1997, she has nothing to lose because she is
claiming herself as legally married wife of the proforma defendant/opposite party no.2 and the opposite party no.2
sailing in the same boat has been accepting the said relationship between the petitioner and pro-forma
defendant/opposite party no.2. Rather, the petitioner has been combating with the toughest task to establish herself as
legally married wife of the opposite party no.2, since her alleged status was being denied by both the opposite party
no.1 and opposite party no.2. Nonetheless with the aid of the documents dealt with above, which were also considered
by learned Trial Court, of course in the manner of prima facie nature learned Trial Court had chosen to reject the prayer
of temporary injunction and obviously tried to concentrate to expedite the suit. It would be considered, if learned
Lower Appellate Court could have reversed the said order of rejection by appreciating all the documents as considered
by learned Trial Court. Because the suit though was filed in the year 1997, in between the period evaded by this time
so many events had to be faced by the parties for which they had to travel even up to the Apex Court.
It is pertinent to mention that prior to the suit filed by the opposite party no.1, the proforma defendant/opposite
party no.2 filed Title Suit no. 200 of 1994 before the Court of Durgapur claiming himself as unmarried man at that time
and seeking declaration that the petitioner (Lipika) had no right to claim that pro-forma defendant no.2 was her
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husband and further declaration that said opposite party no.2 was still unmarried. These texts with the peculiar prayer
of the suit filed by opposite party no.1 can be considered as an added feather to weigh prima facie about his conduct, as
to whether his act and action can be accepted as bona fide.
Be that as it may, since this Court has been apprised of that such an old suit has come up at the stage of
peremptory hearing and in view of such chequered history, it is desirable to get its hearing expedited preferably within
a stipulated period without diverting attention to any other angle and the operative portion of the impugned order that,
"the injunction petition filed by appellant/plaintiff under Order 39 R 1 and 2 of CPC in the Ld. Court below is allowed.
Defendant/respondent is restrained to claim herself as wife of proforma defendant till disposal of the suit," is set aside
, because of the reason that if this observation is allowed to remain, it may affect the decision of the suit and furthermore, when learned Lower Appellate Court in his foregoing observation took note of that "without full-fledged trial it cannot be ascertained whether defendant is the wife of proforma defendant."
It has already been observed that learned Trial Court considering the pleadings and documents of course prima facie had chosen to reject the application for injunction. Learned Lower Appellate Court had reversed the said order. Though in ordinary course within the ambit of Article 227 of the Constitution of India, such discretionary order is not interfered with, but considering the peculiarity about the nature and character of the suit and the documents having prima facie merits favouring the petitioner, which have not been appreciated by learned Lower Appellate Court in proper perspective in reversing the order of learned Trial Court and therefore, the cardinal principle in the matter of grant of temporary injunction having not been followed, this Court is compelled to interfere with.
Therefore, setting aside the order dated 3rd December, 2012 passed by learned Additional District Judge (Redesignated) Court, Bankura in Misc. Appeal no. 25 of 2013 and upholding the order dated 22nd August, 2013 passed by learned Civil Judge (Junior Division), 1st Court, Bankura in Title Suit no. 92 of 1997. Learned Trial Court is directed to conclude the trial of the suit within a period of one year from the date of communication of this order by discouraging the prayer for adjournment, if it is tendered for any unnecessary reason.
The revisional application, being C.O. 1633 of 2016, accordingly stands allowed. Be it mentioned that learned Trial Court during disposal of the suit shall not be influenced by any observation of this Court made during disposal of the revisional application.
No order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis. 4 (Mir Dara Sheko, J.)