Calcutta High Court (Appellete Side)
Smt. Manju Bhattacharjee vs Sri Ujjal Kanti Bhattacharyya & Ors on 27 July, 2016
Author: Sahidullah Munshi
Bench: Sahidullah Munshi
1
8.
27.07.2016.
debajyoti
C.O. No.3023 of 2007
Smt. Manju Bhattacharjee
Vs.
Sri Ujjal Kanti Bhattacharyya & Ors.
Mr. Gopal Chandra Ghosh,
Mr. Sanjib Kumar Mukhopadhyay,
Mr. Jayanta Kumar Pain,
Mr. Sunirmal Khanra,
Ms. Kalpita Paul
...... For the Petitioner.
This revisional application is directed against order dated
28th February, 2007 passed by the learned Additional District
Judge, Arambagh in Misc. Appeal No.7 of 2006 affirming the
order of injunction dated 20th February, 2006 passed by the
learned Civil Judge, Junior Division, Second Court, Arambagh in
Misc. Case No.12 of 2003.
The petitioner is the opposite party no.1 in Misc. Case No.12
of 2003 (Pre-emption Case) pending before the learned Civil
Judge, Junior Division, Arambagh. The opposite party
respondents/ defendants nos.1, 2 and 3 filed an application
under Section 8 of the West Bengal Land Reforms Act, 1955 against the present petitioner, which is registered as the said Misc. Case No.12 of 2003. An application for temporary injunction under Order XXXIX Rules 1 and 2 was filed by the opposite parties in the pre-emption case. That application for temporary injunction was allowed by the learned Civil Judge, Junior Division by his order dated 20th February, 2006. The 2 present petitioner filed a Misc. Appeal being Misc. Appeal No.7 of 2006 praying for setting aside the order of temporary injunction. The learned appellate Court below dismissed the appeal and affirmed the order of the learned Civil Judge, Junior Division passed on 20th February, 2006 holding, inter alia, that there was no error committed by the learned trial Judge in allowing the plaintiff's application under Order XXXIX Rules 1 and 2 read with Section 151 of the Code of Civil Procedure.
In spite of service, no one appears today on behalf of the opposite parties. From the order dated 20th December, 2007, it appears that no one appeared on behalf of the opposite parties when the matter was taken up and as a result, the interim order, which was passed on 15th October, 2007, had been extended till disposal of the revisional application.
In view of the aforesaid orders passed in this revisional application, there is no force of the order of status quo which was passed by the learned trial Court. Mr. Ghosh, learned Counsel, appearing for the petitioner, could not bring any instruction about the present status of the suit property under pre-emption. However, since no one is appearing for the opposite parties, the revisional application has been taken up ex parte.
Mr. Ghosh submits that even on the face of the pre-emption application, the learned Courts below ought not to have held that the petitioner made a prima facie case in their favour for the reason that (i) the scheduled land is a 'Bastu' land, (ii) the land situates within the municipal area and (iii) the impugned deed is 3 not a deed of transfer for valuable consideration, but is a deed of gift.
Mr. Ghosh further submits that in view of third proviso to Section 8 itself, no pre-emption application could be held to be maintainable where the transfer has been made either by such exchange or partition or by transfer by bequest or gift or heba- bill-ewaz or mortgage as mentioned in Section 7 or a transfer for charitable or religious purposes or both without reservation of any pecuniary benefit for any individual or a transfer of land in favour of a bargadar in respect of such land if after such transfer, the transferee holds as a raiyat land not exceeding one acre or 0.4047 hectare in area in the aggregate. Mr. Ghosh submits that it is the admitted position in the application under Section 8 that the plaintiffs themselves mentioned that the land is within the municipal area and is a 'Bastu' land.
While passing the order of injunction, the learned trial Court held that the dispute with regard to the transaction whether it was by a registered deed of transfer for valuable consideration or by a deed of gift is a subject matter to be decided at the final hearing of the Section 8 application. Therefore, the learned trial Court held that there was a prima facie case to face trial and the balance of convenience and inconvenience was in favour of protection and/or preservation of the suit property. In the Misc. Appeal, the learned appellate Court below maintained the same view taken by the learned trial Court and, accordingly, affirmed the order of injunction.
The power conferred under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure for grant of temporary injunction or 4 refusing temporary injunction is discretionary which is to be exercised in accordance with reasons and sound judicial principles. An injunction is a judicial process whereby the party is required to do or to refrain from doing any particular act. Its main object is to preserve the subject-matter of the suit in status quo for the time being. However, filing of plaint along with application under Order XXXIX Rules 1 and 2 does not entitle the plaintiff to obtain automatically a temporary injunction.
In Jenson & Nicholson (India) Ltd. - Vs. - Assha Cooperative Housing Society reported in 1994(2) CHN 241 a Division Bench of this Hon'ble High Court held as follows:
"From the analysis of the cases cited, it appears that certain criteria were laid down by the Supreme Court in the case of Sanwarmal Kejriwal vs. Vishwa Co-operative Housing Society Ltd., AIR 1990 SC 1563 to the effect that once the status of a tenant was found to have been acquired by an occupant of a flat on the strength of a privity of contract with the allottee of the flat under the co-operative society, the society was not entitled to evict him without a proceeding in Civil Court ; allowing the Society to take recourse to the statutory forum created by the law of co-operation would be to deprive the said person of the benefit of the Rent Act. Even the alleged violation of the Bye-law or Rules of the Society, according to the Supreme Court in that decision, did not make any difference as a protected tenant could not be evicted in a proceeding under the co-operative Societies Act because, the Rent Act was a special type of legislation and must, therefore, be allowed predominance over and preference to the co-operative Societies Act. The said decision further laid down that the jurisdiction of the Court was to be determined on the averments in the plaint or claim application and not on the defence taken by the adversary party."5
The said decision, therefore, lays down the proposition that the jurisdiction of the Court was to be determined on the averments in the plaint or claim application and not on the defence taken by the adversary.
Temporary injunctions are regulated by the Code and cases in which they may be granted are stated in clauses (a), (b) and (c) of Order XXXIX Rule 1. Temporary or interlocutory injunction may be granted until a specified time or until further order of the Court. The purpose of interlocutory order is to maintain status quo as it existed on the date of the filing of the suit. It is settled principle of law that injunction or interim order are issued not on grace or on default of any person. Interim orders are granted on the basis of the case made out prima facie with the pleading and that in the interest of justice. Such interim order is necessary in order to prevent abuse of process of law or to prevent wastage or to maintain the situation as on date or from recurrence of certain incident which were existing as on the date of presenting such application or at least the presentation of main application within which the proceeding is arisen. Court has also to take consideration of the balance of convenience and inconvenience and other important factors. At the stage of granting temporary injunction, a strong prima facie case has to be established. The powers of the Court under Order XXXIX Rules 1 and 2 to grant appropriate relief is not to be confused with the actual relief claimed by the petitioner in the plaint. Law of injunction is well settled that granting or refusing to grant temporary injunction is explained by three well settled principles -
a) Whether prima facie case has been made out;
6b) Whether balance of convenience is in their favour ; and
c) Whether petitioner will suffer irreparable injury if the temporary injunction is not granted.
A prima facie case does not mean a case to succeed but which fairly needs an enquiry. Mr. Ghosh, while making submission on behalf of the petitioner with a prayer to quash the order of injunction passed by the learned Courts below, reiterated that the pre-emption application is not maintainable and the Deed of Transfer in question is a Deed of Gift and, therefore, the learned Munsiff, considering, prima facie, that the pre-emption application is not maintainable, should have refused to grant temporary injunction. But, on perusal of the orders passed by the learned Courts below it is found that both the learned Courts below have consistently held that whether or not the Deed of Transfer is in a sense a Deed of Gift or a Deed of Transfer or valuable consideration is a subject-matter to be investigated at the trial and simply on the prima facie view at the stage of injunction herein Court cannot come to a finding that this is a Deed of Gift. On perusal of the orders passed by both the learned Courts below this Court is of the view that there is no error committed by the learned Courts below in holding that the status quo of the property should be maintained till disposal of the pre- emption application. This Court is also of the view that apart from the prima facie case the balance of convenience and inconvenience is heavily lying in favour of the pre-emption petitioner, that is, the opposite party herein because in the event Mr. Ghosh's client makes any construction or changes the nature and character of the suit plot or transfer the suit plot during the pendency of the pre-emption application then the opposite party will suffer an irreparable loss. Therefore, it would be just and 7 proper to maintain status quo of the suit property. Mr. Ghosh might have very good case in the trial but Court should not be prejudiced taking into such case at the hearing of the injunction application.
Injunction is a relief founded in equity. The power to grant or refuse injunction essentially lies in the realm of the discretion of the Court as I have already pointed out. If the building is constructed on the plot the same may have to be demolished or it may lead to multiplicity of proceedings which is not desirable at all. This Court is of the view that intricate question of law should not be decided while deciding interlocutory application. In deciding application for interim injunction, the Court is not to record finding on the main controversy involved in the suit, pre- judging issue in the main suit. It may not be appropriate for any Court even to hold a mini trial at the stage of grant of temporary injunction as has already been held by the Hon'ble Supreme Court in the case of Agarwalla - Vs. - Tarkeshwar Prasad reported in AIR 2001 SC 2367.
Although in view of the continuous operation of the order of stay passed by this Court, the status quo was suspended and if the petitioner wanted to do anything at the suit land, perhaps he could have done it because no status quo order was operative there. The submission made by Mr. Ghosh appears to be very convincing that the petitioner does not have any prima facie case and, therefore, the order of injunction should not have been granted. Now the question is whether the learned Court was right in holding that the balance of convenience and inconvenience was heavily in favour of the protection of the property. Although the provision of Section 8 is not attracted to be a case where the land 8 has been transferred by way of gift, but, even then, the subject matter of such verification cannot be made at the interlocutory stage and this has to be done only at the final hearing on the Section 8 application. Therefore, I do not find that the trial Court below was absolutely wrong in passing the order of status quo to preserve the character of the land. However, in order to do justice, the petitioner also cannot be subjected to suffer an order of status quo for a long time. The order of status quo was passed in 2006 and from then to 2016, the matter is pending.
Since no instruction is forthcoming with regard to the pending Misc. Case and since this Court only passed an order of stay of operation of the order passed by the learned trial Court and there was no order of stay of the proceeding, if in the meantime, anything happened, the same should be given effect to and the petitioner cannot be subjected to any prejudice therefor. Therefore, in order to do justice between the parties, I hold that the land should be preserved till disposal of the application under Section 8 pending before the learned trial Court and the parties should maintain status quo with regard to the nature and character of the suit property as on date till disposal of the pre- emption case. At the same time, I hold that the petitioner's share cannot be subjected to suffer for a longer period simply because the application under Section 8 is pending. Therefore, I direct the trial Court to dispose of the miscellaneous case being Misc. Case No.12 of 2003 as expeditiously as possible, preferably within a period of three months. The learned trial Court is also directed not to grant adjournment whatsoever under any pretext to any of the parties and the learned Court below will positively dispose of the pre-emption case within three months from the date of communication of this order.
9The revisional application is, thus, disposed of.
Urgent photostat certified copy of this order, if applied for, be supplied to the petitioner subject to compliance of all requisite formalities.
( Sahidullah Munshi, J. )