Calcutta High Court (Appellete Side)
Caravan Electricals Private Limited vs Deb Chandra Shukla And Another on 20 August, 2019
1
20.08.2019.
Item No. 12
C.A.N. 2790 of 2019
+
F.A.T. 371 of 2019
Caravan Electricals Private Limited
Vs.
Deb Chandra Shukla and another.
Mr. Sayantan Basu,
Mr. Kuldip Mallik,
Mr. Anil Choudhury.
... for the appellant.
Mr. Debnath Ghosh,
Mr. Prithwiraj Sinha,
Mr. Tanmoy Roy.
... for the respondents.
Pursuant to the notice, the respondents are appearing before us.
The present appeal arises from a judgment and order dated 30th January 2019 passed by the learned Additional District Judge, 13th Court, Alipore in Title Suit No. 24 of 2017, by which the said suit was dismissed on contest without cost.
Initially, the instant appeal was registered as miscellaneous appeal as the Advocate-on-Record of the appellant was of the view that even if the suit is dismissed but, in fact, it was a dismissal of an application for injunction and in view of the provisions contained under Order XLIII Rule 1(r) of the Code of Civil Procedure such appeal is maintainable.
However, we noticed that the suit itself was dismissed and it is immaterial at what stage it has been dismissed and, therefore, the appeal lies under Section 96 of the Code of Civil Procedure. We directed the department to convert the appeal as regular first appeal and assign a new number for this.
The appellant has annexed some of the orders along with the impugned judgment passed in the said suit to corroborate his stand that the court, in fact, was hearing the application for temporary injunction and not the suit for final disposal. The order no. 13 dated 15th January 2019 would postulate that the application for temporary injunction was fixed on the said date and was adjourned to 18th January 2019. By order no. 14 dated 18th January 2019, the court heard the application for temporary 2 injunction and fixed 22nd January 2019 for further hearing. On the said date i.e. on 22nd January 2019, the arguments on behalf of the respective parties were made and the next date i.e. 30th January 2019 was fixed for delivery of the judgment.
Though the word "judgment" has been recorded in the said order but one can certainly interpret such word as substitute of order for the simple reason that the application for temporary injunction was intended to be disposed of by the trial court. It is certainly an order within the peripheral of Section 104 of the Code of Civil Procedure and the remedy to an aggrieved person is also provided by way of an appeal.
It is really astonishing and startling fact that while disposing of the application for temporary injunction, the trial court has proceeded to dismiss the suit without affording the parties to adduce evidence and produce all the relevant documents, which have some bearing on the respective stands of the parties.
It is beyond cavil that the stage for disposal of the application for temporary injunction is not a mini trial. The court record its findings in order to ascertain the prima facie case having made out for the purpose of temporary injunction, which is mere tentative and has no persuasive value at the time of final disposal of the suit. Even if the court feels that the suit is not maintainable, it has to exercise the powers enshrined in this regard after permitting the parties to meet such point but certainly it does not bestow the inchoate powers even under the inherent powers enshrined under Section 151 of the Code of Civil Procedure to dismiss the suit without letting the parties being aware of such point, which in the opinion of the learned Judge assumes significant importance and has a pivotal role in dismissal thereof.
We, therefore, cannot concur with the view expressed by the learned Judge in the trial court in dismissing the suit after hearing the application under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure. The order impugned is, thus, set aside.
Since we have not entered into the merit or the demerit of the respective cases made out by the parties, we remit the matter back to the trial court for disposal of the application for temporary injunction afresh.
The learned Judge in the trial court shall not be influenced by any observations made herein above touching the merit of the application and shall dispose of the same independently without giving any persuasive value thereto.
3The instant appeal is, thus, allowed.
In view of the disposal of the appeal itself, the connected application being CAN 2790 of 2019 has become infructuous and the same is also disposed of.
There shall, however, be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.
ab (Abhijit Gangopadhyay, J.) (Harish Tandon, J.)