Calcutta High Court (Appellete Side)
Indranil Mukherjee vs Jayeeta Mukherjee & Ors on 21 November, 2016
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Jyotirmay Bhattacharya
AND
The Hon'ble Justice Ishan Chandra Das
F.M.A.T. 1008 of 2016
(CAN 9570 of 2016)
Indranil Mukherjee
-versus-
Jayeeta Mukherjee & Ors.
For Appellant : Mr. Sabyasachi Bhattacharya,
Mr. Anindya Lahiri,
Mr. Samrat Dey Paul.
For the Respondent : Mr. Anupam Bhattacharjee,
Nos. 1 & 2. Mr. Uday Shankar Bhattacharjee,
Mr. Rameshwar Sinha.
For the Respondent : Ms. Sayani Roy Chowdhury.
No. 3. Mr. Debtanay Banerjee.
For the Respondent : Mr. Dipanjan Datta,
Nos. 7, 8 & 9. Mr. Sayan Datta.
For the Respondent : Mr. Avijit Chatterjee.
No. 12.
Heard On : 21st November, 2016.
Judgement On : 21st November, 2016.
Jyotirmay Bhattacharya, J.
This First Miscellaneous Appeal is directed against an order being no. 2 dated 30th August, 2006 passed by the learned Civil Judge, Senior Division, 2nd Court at Barasat, in Title Suit No. 707 of 2016 at the instance of the plaintiff/appellant.
By the impugned order, the plaintiff's prayer for ad-interim injunction was refused by the learned Trial Judge primarily on the ground of lack of urgency involved in the matter.
The instant appeal was admitted for hearing on 29th September, 2016. After the appeal was admitted, we, on an application for interim injunction filed by the appellant in this appeal, passed the following ad-interim injunction:
"The defendant/respondent no. 1 is restrained from operating the bank account and/or encashing any fixed deposit, as mentioned in schedule - A2 & A-5 of the injunction application till 8th November, 2016 or until further order whichever is earlier.
The respondent no. 1 is restrained from dealing with the allotment of shares in the Abahan Housing Cooperative Society Limited, in the plot of land bearing no. CC-23, as mentioned in Sl. No.1 under Schedule 'B' of the injunction application and the respondent no. 2 is also restrained from dealing with the shares in the Abahan Housing Cooperative Society Limited in the plot of land bearing no. CC- 23, Action Area - I, New Town, Calcutta till 8th November, 2016 or until further orders whichever is earlier."
Such ad-interim order was passed by this Court as we were prima-facie satisfied that the appellant had source of income and had substantial income to invest and the investments made by him either in the joint account or in the account standing in the name of the wife, are the investment of the appellant. On the contrary, we found that the wife had no source of income to invest such huge amount in several accounts of different descriptions in different banks. Allegations which were made by the appellant against his wife regarding syphoning of money by her from those accounts, are the prima-facie proof of the case made out by the appellant in the application for injunction.
The respondent/wife filed an application under Section 125 of the Criminal Procedure Code praying for maintenance against the appellant stating therein that she has no source of income.
Considering the facts and circumstances as stated above, we passed the aforesaid ad-interim order of injunction as we thought that status-quo with regard to the savings lying in several deposits and the shares in the flat in the Housing Co- operative should be maintained until the plaintiff's application for temporary injunction is finally decided by the learned Trial Judge.
The ad-interim order of injunction which was passed for a limited period was subsequently extended till 30th November, 2016.
The respondent no. 1/wife has entered appearance in this appeal and has filed an application for vacating the interim order passed by this Court primarily on the ground that despite a caveat was lodged by her in connection with this appeal, no notice was served upon her either before moving the appeal or before moving the application for interim injunction filed in connection therewith.
Admittedly, no caveat was filed at a point of time when the appeal was filed. Even the concerned department has also certified that no caveat was filed in connection with this appeal.
Learned advocate appearing for the respondent no. 1 submits that caveat was lodged after the appeal was filed. It is alleged by the respondent no. 1 that notice relating to such caveat was served upon the appellant even before the appeal was moved for its admission. A track report relating to service of such notice has also been annexed alongwith the said application for modification. It is, thus, claimed that since the interim order was obtained by the appellant without service of notice upon the respondent no. 1, despite the caveat was lodged by her, such interim order should be vacated immediately. Allegation regarding service of notice relating to the said caveat upon the appellant is denied by Mr. Bhattacharya, learned senior counsel, appearing for the appellant who after taking instruction form his client who is present in Court today submits that no such notice was ever served upon his client. Alongwith the track report, the postal receipt showing remittance of such postal article, has not been annexed to this application.
As such, it is impossible for this Court to verify as to whether the track report submitted alongwith this application relates to the service, which the respondent no. 1 sought to effect upon the appellant in connection with the caveat lodged by her.
Be that as it may, even assuming that such service was effected, still then, it is now well settled that under such circumstances, the Court may at best recall the ad-interim order of injunction and hear out the application on merit immediately in presence of both the parties.
Accordingly, we heard the learned advocates appearing for the parties on the merit of the appeal and have also decided to dispose of the appeal by dispensing with the requirement of filing of paper books in this appeal as all the papers which are necessary for disposal of the appeal are now before us.
Since the plaintiff's application for temporary injunction is yet to be decided on merit after exchange of affidavits between the parties before the learned Trial Judge, we feel that if we make any discussion with regard to the merit of the injunction proceeding in details, our observation which will be so made, will ultimately influence the learned Trial Judge, while deciding the plaintiff's application for temporary injunction.
As such, we feel that instead of giving our reaction on the plaintiff's application for temporary injunction in great detail, justice will be subserved if we permit the parties to exchange their affidavits in connection with this proceeding and request the learned Trial Judge to dispose of the plaintiff's application for temporary injunction within a time bound period.
We, thus, direct the respondents to file their affidavits in connection with the plaintiff's application for temporary injunction within two weeks from date, reply, if any, be filed by the plaintiff/appellant within a week thereafter.
However, it is made clear that if other parties also want to file their affidavits against the plaintiff's application for temporary injunction in the Court below, they may do so within the time as fixed above.
We request the learned Trial Judge to make all endeavour to dispose of the plaintiff's application for temporary injunction by the end of January, 2017.
The interim order which was passed by this Court after the appeal was admitted on 29th September, 2016 as mentioned above, will continue till the disposal of the plaintiff's application for temporary injunction.
It is, however, made clear that the learned Trial Judge while deciding the plaintiff's application for temporary injunction is absolutely free to decide the plaintiff's application for temporary injunction on its own merit and according to his own wisdom, after taking into consideration the pleadings of the respective parties and also without being influenced by the interim arrangement which is made by this Court hereinabove while disposing of the appeal.
Both the appeal and the applications filed by the respective parties are thus disposed of.
Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties as expeditiously as possible.
(Jyotirmay Bhattacharya, J.) (Ishan Chandra Das, J.) ac