Calcutta High Court (Appellete Side)
Kishori Mohan Ghosh vs Smt. Madhabi Maurh on 5 May, 2016
Author: Indrajit Chatterjee
Bench: Indrajit Chatterjee
Form No.J(2)
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
Present : The Hon'ble Justice Indrajit Chatterjee
C.O. 3710 of 2015
Kishori Mohan Ghosh
-vs-
Smt. Madhabi Maurh
For the Petitioner : Mr. Gopal Chandra Ghosh
Ms. Joyeta Kaunda
For the opposite party : Mr. Ankit Agarwala
Ms. Alotriya Mukherjee
Heard on : 11-04-2016 & 05-05-2016
Judgment on : 05-05-2016
Indrajit Chatterjee, J.:- This is an application under Article 227 of the
Constitution of India in which the present petitioner/defendant has
assailed the order passed in Misc. Appeal No. 11 of 2015 by the Additional
District Judge, Arambagh within the district of Hooghly as per the order
dated 19-08-2015 wherein the said Additional District Judge set aside the
order of the learned trial court dated 19th March, 2015 as passed by the
learned Civil Judge (Junior Division), 2nd Court at Arambagh in Title Suit
no. 06 of 2014.
It is apparent from the record that one application for temporary
injunction under Order XXXIX Rules 1 and 2 of the Code of Civil
Procedure (hereinafter called as the said code) was filed by the present
plaintiff for an order of injunction in respect of the entire 'Ka' schedule
property and more specifically so that the defendant may not raise any
construction over the 'Ka-1' and the defendant may be restrained from
creating the third party interest in respect of that schedule property. The
matter was heard extensively and as per the order dated 09-04-2014 the
learned trial court rejected the said application on contest without any
costs. Thereafter another application was filed by the plaintiff on 4th
March, 2015 praying for temporary injunction almost on the similar
premises with the additional fact that some building materials were
stacked. That petition was heard and the learned trial court refused to
pass any order of temporary injunction as per order dated 19-3-2015. As
against the said order, one Miscellaneous Appeal was preferred being
Misc. Appeal No. 11 of 2015 which was disposed of by the learned
Additional District Judge, Arambagh as per order dated 19-08-2015
wherein the learned court of appeal allowed the said appeal on contest
and directed that the order no. 19 dated 19-03-2015 passed by the
learned trial court in that title suit be set aside and the
respondent/defendant was restrained by the order of temporary
injunction from making any construction and/or changing the nature and character of the suit property and also restrained the defendant from alienating the suit property till the disposal of the suit.
The matter thereafter came up before this court and C.O. No.2410 of 2015 was registered under Article 227 of the Constitution of India and on hearing, this court set aside the judgment and order dated 12th June, 2015 and the appeal was remanded back to the court of first appeal for fresh consideration and in the body of the said judgment, it was observed that the first appellate court will take into consideration whether the second application for temporary injunction was barred by principle of res judicata, issue estoppel and the question whether on the identical fact a subsequent temporary injunction can be granted. The court was asked to consider whether in the second application any new fact was pleaded for consideration.
After the receipt of the said order of this court, learned first appellate court disposed of the appeal as per the order impugned on hearing both sides and came to the finding that some new fact revealed in the second application on the ground that some building materials were stacked and that before the advocate commissioner could visit such stacked earlier the said stacked was removed by the opposite party when he got the information that the commissioner will come to inspect the property.
At the time of hearing, Mr. Ghosh, learned Advocate, appearing on behalf of the petitioner submitted by taking me to Order XXXIX Rules 1 and 2 and also 4 of that Order to say that when a temporary injunction petition is disposed of, that matter cannot be re-agitated vide a second application. The only remedy available to the other party is to seek recourse to Rule 4 of Order XXXIX of the Code. Rule 4 of Order XXXIX of the Code of Civil Procedure runs thus:-
4. Order of injunction may be discharged, varied or set aside.-
Any order for an injunction may be discharged, or varied, or set aside by the Court, on application made thereto by any party dissatisfied with such order :
[Provided that if in an application for temporary injunction or in any affidavit supporting such application, a party has knowingly made a false or misleading statement in relation to a material particular and the injunction was granted without giving notice to the opposite party, the Court shall vacate the injunction unless, for reasons to be recorded, it considers that it is not necessary so to do in the interests of justice.
Provided further that where an Order for injunction has been passed after giving to a party an opportunity of being heard, the Order shall not be discharged, varied or set aside on the application of that party except where such discharge, variation or setting aside has been necessitated by a change in the circumstances or unless the Court is satisfied that the Order has caused undue hardship to that party]".
He took me to the impugned order passed on 19-08-2015 to show that the learned Appellant Court took into consideration certain new fact as claimed by the petitioner in paragraph 10 of the subsequent injunction petition dated 19-03-2015. Mr. Ghosh took me to page 7 of the impugned judgment to show that the learned Appellant court took into consideration the new fact as the petitioner had accumulated some building materials to raise construction over the 'Ka-1'shedule property. He further submitted that when the order of injunction was refused by the learned trial court on 08-04-2014, naturally the defendant/petitioner had every right to raise construction over the 'Ka-1' schedule property and as such, the accumulation of building materials cannot be said to be a new fact to allow the plaintiff/opposite party to come with a fresh application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure.
He ended his argument by citing a decision of this court as reported in AIR 1975 Cal 225 (Bank of Baroda Vs. Fishco) wherein the Apex Court referred to the decision of the Apex Court as reported in AIR 1960 SC 941 (Satyadhan Ghoshal Vs. Deorajin Debi) at page 943 wherein the Apex Court observed that the principle of res judicata applies between two stages in the same litigation to this extent that the Court, whether the trial court or a higher court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceeding.
Thus, Mr. Ghosh contended that the subsequent application under Order XXXIX Rules 1 and 2 of the Code almost on the same ground as filed by the plaintiff/opposite party was not maintainable and it was perfectly barred by doctrine of res judicata and issue estoppel.
Thus, Mr. Ghosh contended that the subsequent application under Order XXXIX Rule 1 & 2 of the Code as filed by the plaintiff/opposite party was not maintainable and it was specifically barred by doctrine of res judicata and issue of estoppel.
The case of the parties relevant for the purpose of this revisional can be stated in brief thus:-
i) That the plaintiff/opposite party being the daughter of Ajit Kumar Alu has claimed that the suit Ka schedule property originally belonged to her father and her mother Lakshmi Alu. Both are dead.
Lakshmi Alu predeceased Ajit Kumar Alu and thereby Ajit Kumar Alu became the sole owner of the Ka schedule property.
ii) That the plaintiff further claimed that even after the marriage of the present plaintiff she started residing with her husband at her father's house and used to be maintained by her father. In the plaint it has been claimed that licence was given to the present petitioner/defendnat in respect of the entire Ka schedule property but on 22nd October, 2013 opposite party came to know that the present petitioner perpetrating fraud on her father managed to execute one Deed of Gift in respect of the entire Ka-1 schedule property out of Ka schedule property as per the deed dated 17.8.1981.
iii) One temporary injunction petition was filed under Order XXXIX Rule 1 and 2 of the said Code by the plaintiff with this adjudication that the defendant was trying to raise construction over a portion of 'Ka- 1' schedule property i.e. over the plot nos.751 and 754. It was also claimed in the petition that the said defendant was trying to dispose of the other plots of the Ka-1 schedule property. The said injunction petition was rejected as per order dated 8th April 2014. After eleven months of that one fresh application was filed by the plaintiff on 4th March, 2015 praying for an order so that the defendant may not raise construction over that portion of the Ka-1 schedule property and may not dispose of other property mentioned in Ka-1 schedule. That petition was also rejected. The matter went on appeal. The order of the Learned Trial Court was reversed in Misc. Appeal No.11 of 2015 the Learned First Appellate Court ordered that the defendant be restrained from transferring any portion of the Ka-1 schedule property, and raising construction there and debarred from changing the nature and character of the suit property. The matter came up before this Court and the matter was disposed of in C.O. No. 2410 of 2015 wherein it was decided by this revisional court that the Learned Appellate Court will consider as to whether the second application was barred by 'res judicata' and 'issue of estoppel'. The Learned Appellate Court again decided the matter afresh on 19.8.2015 and passed a similar order like that of the order dated 19.02.2015 and held that the second petitioner was not barred by res judicata in view of the new fact that was accumulation of building materials over the 'Ka-1' schedule property. In reply to the argument of Mr. Ghosh, Mr. Agarwala learned advocate appearing on behalf of the petitioner submited that the decision of the Apex Court as reported in AIR 1960 SC 941 Satyadhan Ghosh(supra) will not apply in the present case as after that decision the Apex Court decided the matter again in Arjun Singh Vs. Mahindra Kumar & Ors. as reported in 1964 SC 993(1) wherein the Apex Court in paragraph 13 observed:-
" it is needless to point out that interlocutory orders are of various kinds; some like orders of stay, injunction or receiver are designed to preserve the status quo pending the litigation and to ensure that the parties might not be prejudice by the normal delay which the proceeding before the court usually take. They do not in that sense decide in any manner the merits of the controversy in issue in the suit and do not, of course, put an end to it even in part. Such orders are certainly capable of being altered or varied by subsequent applications for the same relief, though normally only on proof of new facts or new situations which subsequently emerge. As they do not impinge upon the legal rights of parties to the litigation the principle of res judicata does not apply to the findings on which these orders are based, though if applications were made for relief on the same basis after the same has once been disposed of the Court would be justified in rejecting the same as an abuse of the process of Court ...........".
Thus, he submitted that on facts of this case the doctrine of res judicata will have no application in the instant case.
Regarding the argument of Mr. Ghosh that the petitioner ought to have filed an application under Order XXXIX Rule 4 of the said Code it was submitted by Mr. Agarwala that there was no scope on the part of its client to file such an application as per that Rule 4 of Order XXXIX "Any order for injunction .... " means that there ought to have been an order of specific injunction which can be discharged, varied or set aside but in the instant case before the floor of this Court or before the floor of the Trial Court and before the other courts there was no order of injunction. He also submitted that the second application can even be treated as an application under Order XXXIX Rule 4 of the said Code.
He further submitted that even though in the first application it was prayed for by the plaintiff that the defendant be injuncted from transferring any portion of the 'Ka' schedule property and thereby creating third party interest but the same point was not answered by the Learned Trial Court. He further submitted that in the second order of the first appellate court there is indication that the second application was preferred before the Learned Trial Court for a new ground.
He also agitated that actually the point of res judicata was abandoned by the present petitioner before the Lower Appellate Court and as such the said petitioner is estopped from pleading that 'res judicata'. He cite the decision of this Hon'ble Court as reported in AIR 1929 CAL 163 wherein it was observed by the Court that omission to plead 'res judicata' in the conflicting decrees the suit to set aside later decree cannot be entertained. He submitted by taking me to the impugned order passed by the First Appellate Court on 19.08.2014 that in that order the Learned Appellate Court was prima facie satisfied regarding the fraud perpetrated on the father of the present plaintiff.
Regarding the pleading of fraud Mr. Agarwala cited a decision of Division Bench of this Court as reported in AIR 2011 CAL 1991 wherein it was held that the plaintiff having made out prima facie case of fraud as to conduct of parties nature of agreement etc. can maintain successfully one application under Order XXXIX Rule 1 & 2 of the said Code.
I am to answer whether the second application can be treated as barred under the doctrine of res judicata. I have already taken into consideration the decision of the Hon'ble Apex Court as passed in Stayadhan Ghosh(supra) and also three Bench decision of the Apex Court as passed in Arjun Singh(supra). On reading and rereading the judgment of the Apex Court as passed in Arjun Singh(supra) this Court is satisfied that the Hon'ble Apex Court took the view that an application for injunction may be filed second time if new situation emerged but in the same breadth the Hon'ble Apex Court observed that if applications were made for relief on the same basis after same has been disposed of the Court would be justified in rejecting the same as abuse of the process of Court.
I have gone through the copy of both the injunction petition filed before the Learned Trial Court. In the second petition a new fact was introduce that some building materials were collected in front of the Ka-1 schedule property and it was also claimed that when the local inspection commissioner went to visit the property earlier he did not find any such articles therefore, as those were removed by the defendant being aware of such inspection commission. This Court is not unmindful of the fact that some photographs were also relied upon. The photographs cannot prove a case. It is a very weak piece of evidence and production of the negative is a must. Thus the new fact tried to be introduced was that some building materials were placed or collected in front of the Ka-1 schedule property. This Court is not unaware of the fact that the first injunction application was dismissed by the Learned Trial Court thus there was no bar on the part of the defendant to go ahead with the construction work.
Banking on the decision of the Hon'ble Apex Court as passed in Arjun Singh(supra) this Court can say that the second application may not be treated as 'res judicata' but if same thing has been pleaded then that may be treated as an abuse of the process of Court and the application can be rejected on that ground. This Court has taken into consideration. The fact that the fact that in the first application the Learned Trial Court was asked to take into consideration the defendant was trying to dispose of several portion of the Ka-1 schedule property but that matter remained unanswered in the first order passed by the Learned Trial Court.
This Court in exercising this revisional jurisdiction must give protection to the present opposite party so that the defendant petitioner may not dispose of or create any third party interest over the 'Ka-1' schedule property. I am told that some portion of the 'Ka-1' schedule property has already been transferred and that those person who have purchased such property have not been made a party. I hope that the plaintiff will take the trouble to add them as a party in this litigation as mere protection under Section 52 of the Transfer of Property Act may not serve the entire purpose.
This Court is at one with Mr. Agarwalla that to seek a relief under Order XXXIX Rule 4 of the said Code there must be one specific order of injunction. It is clear from the very starting line of that rule about which I have already said. The argument of Mr. Ghosh that the said order will apply even in case of refusal of an order of injunction is not convincing to this Court. This Court is not unmindful of the fact that in that rule there is specific mention that any party dissatisfied with the said order can approach the said Court for discharge, variation etc. If the order of injunction has been refused how the party in whose favour the order of rejection was granted can be treated as dissatisfied one.
Regarding the observation of the learned First Appellate Court in the second judgment dated 19.8.2015 that fraud was prima facie establish this Court can say that in the said order the Learned Appellate Court did not mention how he was satisfied regarding the existence of the fraud. This Court is not unmindful of the fact that in the second application for injunction it was pleaded relying on the recital of the deed of gift that this opposite party was residing at her in laws house with her children. Can it be treated as an example of fraud? I am leaving the matter for the decision of the Learned Trial Court who will decide this point without being influenced by the observations either made by the First Appellate Court in the second judgment or by this court.
Thus, this Court is satisfied that the second application even though not barred by 'res judicata' but was barred being an abuse of process of this Court as similar fact was agitated in the second application like that of the first one.
Thus, the impugned order passed by the learned First Appellate Court dated 19.8.2015 is hereby set aside. This revisional Court however, direct that the defendant petitioner be restrained from transferring any portion of the 'Ka-1' schedule property thereby creating any third party interest till the disposal of the suit.
Thus, this application under Article 227 of the Constitution of India is allowed on contest with the observations made above.
The Learned Trial Court will take the endeavour to dispose of this litigation pending between the parties as early as possible preferably within one year from communication of this order.
There will be no order as to costs.
Office is directed to communicate this order to the Learned Trial Court.
Urgent xerox certified copy of this order, if applied for, be given to the learned advocates for the parties on the usual undertaking.
(Indrajit Chatterjee, J.)