Calcutta High Court (Appellete Side)
Calcutta Cosmopolitan Club Ltd. And ... vs Dinesh Kumar Goyal on 25 July, 2016
1 25.07.2016
.
Item No. 21C.O. 2680 of 2016 Calcutta Cosmopolitan Club Ltd. and another.
Vs. Dinesh Kumar Goyal.
Mr. S. P. Mukherjee, Mr. Debanjan Mukherjee, Mr. Aditya Garodia.
... for the petitioners.
Mr. R. N. Dutt, Mr. Aniruddha Roy, Ms. Sutapa Roychoudhury, Mr. Sandip Kumar Ray, Mr. Nirmalya Dasgupta.
... for the opposite party.
This revisional application is directed against an order dated 13th June, 2016 passed by the learned Civil Judge (Junior Division), 2nd Court, Alipore in Title Suit No. 4009 of 2008, by which an application under Section 151 of the Code of Civil Procedure is allowed.
Admittedly, in a suit for declaration that the purported communication dated 28th November, 2008 is to be adjudged illegal, wrongful, void, invalid and not binding on the plaintiff/opposite party and perpetually/mandatory injunction directing the defendant no. 1/petitioner to allow the plaintiff/opposite party to enjoy all the facilities and benefits attached to the membership, the Court passed an ad interim order of injunction restraining the opposite parties from implementing the cancellation of temporary membership in terms of letter dated 28th November, 2008.
2Though the said ad interim order of injunction has a limited duration but it has been pointed out by the learned advocate for the plaintiff/opposite party that while considering an application under Order XXXIX Rule 4 of the Code filed by the petitioners, the Court not only dismissed the said application but simultaneously affirmed the ad interim order of injunction. In other words, the injunction matters have been finally disposed of and decided by the Trial Court and the ad interim order of injunction is made absolute.
Thus, there is no difficulty in accepting the proposition that the order of injunction is operating against the petitioners.
Since the plaintiff/opposite party was not allowed to use and utilize the facilities attached to the membership, an application under Section 151 of the Code was taken out for an order directing the defendants/petitioners to allow the plaintiff/opposite party to enter into the club premises and use the facilities until disposal of the suit and also to issue car stickers. The Court allowed the said application, which, according to Mr. S. P. Mukherjee, learned senior advocate appearing on behalf of the petitioners, cannot be sustained.
Since the order of injunction is made absolute and the petitioners have been restrained from taking any steps or giving effect to the letter of termination till the disposal of the suit, there is no hesitation that the facilities and amenities, which are attached to the membership, cannot be said to have been automatically withdrawn or be kept in limbo. Any other interpretation to the order of injunction would result in a paper order and shall be of no legal force.
However, this Court appreciates the agony shown by Mr. Mukherjee that there are certain observations recorded in the impugned order, which may have an impact at the time of final 3 hearing of the suit. The Court should not make any observations nor shall decide the cause, which would virtually non-suit the party at the interlocutory stage. It is equally true that any observations made at the interlocutory stage is mere tentative and shall not have any bearing on the merit of the case at the time of final hearing.
The apprehension shown by Mr. Mukherjee can be sufficiently taken care off by observing that the findings made in the impugned order touching the merit of the case shall not have any persuasive effect upon the Trial Court at the time of final hearing of the suit, as the same is tentative in nature.
Apart from the above, this Court does not find any grounds warranting interference with the impugned order.
The revisional application is, thus, disposed of. However, there shall be no order as to costs.
ab (Harish Tandon, J.)