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Zair HusaIn Khan Vs. Musammat Kaniz Fatima Bibi - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in39Ind.Cas.922
AppellantZair HusaIn Khan
RespondentMusammat Kaniz Fatima Bibi
Excerpt:
.....made. but he does not refer to the defendant's denial, nor does he says that he was satisfied that azam husain khan had affirmed the truth. she had made a precisely similar application on the 22nd of january 1916, the same date on which she filed her plaint. this order proceeds expressly upon a finding that the plaintiff had failed to lay before the court satisfactory materials to warrant the issuing of an injunction such as was prayed for. in this state of the evidence no further enquiry having been made it should clearly have been found in favour of the defendant that it was not proved that he had ever made the statement referred to in the 8th paragraph of azam husain khan's affidavit, these being the circumstances and the materials before the court, we are satisfied that in any case..........were limited, except in so far as will be noted presently, to two affidavits. one was sworn by azam husain khan, a brother of the lady plaintiff. the important paragraphs of that affidavit are the following: in the fifth paragraph it is sworn that the defendant zair husain khan is not possessed of sufficient property to meet the plaintiff's dower-debt. it is further sworn that the total value of the immoveable property in respect of which the injunction is sought is about rs. 16,000, that is to say, a little in excess of the sum claimed, apart altogether from the costs of the suit. it is further sworn in paragraph no. 5 that, on or about the 21st of december 1915, the defendant told the deponent personally that he would not pay anything to the plaintiff on account of her dower-debt,.....
Judgment:

Piggott, J.

1. This is an appeal from an order granting an injunction under the provisions of Order XXXIX, Rule 1 of the Code of Civil Procedure. The essential facts are as follows. Musammat Kaniz Fatima Bibi, the respondent in this Court, was married to the appellant, Zair Husain Khan. It is admitted that the parties lived as man and wife for a considerable number of years. The lady has now brought a suit against the appellant claiming a sum of Rs. 15,000 on account of her dower-debt. That suit is still pending. It has been met by a variety of defences, amongst the allegations made by the defendant and denied by the plaintiff being an allegation that the plaintiff had been divorced. There is also a serious controversy as to the amount of the dower fixed for this lady at the time of her marriage. The plaintiff puts it as high as Rs. 1,25,000 though she has limited her claim to Rs. 15,000. The defendant puts it as low as Rs. 107. It is under these circumstances that the plaintiff applied to the Court, on the 2nd of February 1916, for the issue of an injunction restraining the defendant from alienating his immoveable property until the decision of the suit. This injunction has been granted by the Court below, and the appeal before us is against the order granting it. It may be remarked at once that a good deal has been said, and very properly said, in argument about the discretion of a Court of civil jurisdiction in the matter of granting or refusing a temporary injunction. We are bound to note, however, that the Legislature has seen fit to allow an appeal from an order of this sort. It is, therefore, presumably intended that this Court, sitting in appeal, should examine the grounds on which the Court below has seen fit to exercise its discretion and pronounce an opinion as to the propriety or otherwise of the discretion exercised. The materials before the learned Subordinate Judge when he passed his order were limited, except in so far as will be noted presently, to two affidavits. One was sworn by Azam Husain Khan, a brother of the lady plaintiff. The important paragraphs of that affidavit are the following: In the fifth paragraph it is sworn that the defendant Zair Husain Khan is not possessed of sufficient property to meet the plaintiff's dower-debt. It is further sworn that the total value of the immoveable property in respect of which the injunction is sought is about Rs. 16,000, that is to say, a little in excess of the sum claimed, apart altogether from the costs of the suit. It is further sworn in paragraph No. 5 that, on or about the 21st of December 1915, the defendant told the deponent personally that he would not pay anything to the plaintiff on account of her dower-debt, and whatever decree the plaintiff might obtain from the Court, he would see to it that that decree would be infructuous by making an alienation of the whole of his property from which she might hope to realize it. The next paragraph contains a general allegation more or less to the above effect; but it does not clearly explain the persons to whom or in whose presence, the statements attributed to the defendant are said to have been made. It refers to statements made Subsequently to certain proceedings presently to be noted, and, therefore, subsequently to the 22nd of January 1916. We are asked to infer that it must refer to statements made to Azam Husain Khan deponent, because the contents of this paragraph are affirmed to be true to the deponent's personal knowledge. Then there is a later paragraph in which it is alleged that a statement much to the same effect was made by the defendant to one Husain Jan Khan and repeated to Syed Abid Ali, a Pleader of the plaintiff from whom presumably the deponent had received his information. An important new fact alleged in this paragraph is that the defendant had expressed his intention to contract another marriage and to dispose of his entire property by transferring it to this new wife in lieu of her dower-debt. As against this the Court had before it an affidavit sworn by the defendant Zair Husain Khan on the 10th of February 1916, and produced before the Court on the 10th of February. The defendant therein expressly denied having made any such statement to Azam Husain Khan, or to any other person, as he was alleged in Azam Husain Khan's affidavit to have made on or about the 21st of December 1915. He deposed further that be had no intention to contract another marriage, that he had never expressed any such intention to Husain Jan Khan and generally speaking that it was not true that he was intending to alienate his property in favour of any person. These are the materials on which the learned Subordinate Judge purports to have acted. He refers in the order under appeal to the positive assertion made by Azam Husain Khan with regard to what we may call the conversation of the 21st of December; but he does not refer to the defendant's denial, nor does he says that he was satisfied that Azam Husain Khan had affirmed the truth. After merely mentioning this matter, he goes on to say that the balance of convenience seems to be in favour of passing an order such as is desired by the plaintiff, and that it may be more in the interests of justice to restrain the defendant temporarily from alienating any of his immoveable property. We have felt very considerable doubt in the course of argument whether the present case was one which, even if Azam Husain Khan's affidavit of the 2nd of Februarys 1916 had stood alone and uncontradicted, could fairly have been brought within the provisions of Order XXXIX, Rule 1 (b) of the Code of Civil Procedure. It was not denied on the facts therein alleged the plaintiff could have made an application to the Court under Order XXXVIII, Rule 5 of the same Code. It is certain that an application under this rule would have been simpler to deal with and would have been more directly appropriate to the facts of the case However, we do not wish to decide this point at present; though I may say for myself that the only feature of the case which makes me at all doubtful is the uncontradicted assertion that the entire immoveable property in respect of which the injunction is sought does not, for practical purposes, exceed the sum which may become payable to this plaintiff, if she is entirely successful in her suit. I desire, however, to put this question on one side and to deal with the appeal before us strictly on its merits. Here, it is necessary to note what is certainly an extraordinary feature of this case. The application of the 2nd of February 1916 was not the first application made by the same plaintiff for a similar relief in connection with the same suit. She had made a precisely similar application on the 22nd of January 1916, the same date on which she filed her plaint. This application was supported by an affidavit sworn by the plaintiff's father. There was enquiry into it and it would seem from the record that the deponent and also the defendant submitted to examination and cross examination in the presence of the Court. These proceedings terminated on the 2nd of February 1916 in an order dismissing the plaintiff's application for an injunction and setting aside the interim injunction which had been issued ex parte on the 22nd January. This order proceeds expressly upon a finding that the plaintiff had failed to lay before the Court satisfactory materials to warrant the issuing of an injunction such as was prayed for. It was, therefore, immediately upon the rejections of this first application that the plaintiff returned to the attack with the application of the 2nd of February 1916, the granting of which is challenged by the present appeal. Now with regard to facts alleged by Azam Husain Khan in his affidavit of the 2nd of February 1916, the Court had before it not merely the defendant's denial but certain circumstances do appear calculated to throw doubt on the truth of Azam Husain Khan's assertion as to what took place on or about the 21st December 1915. Azam Husain Khan is the plaintiff's own brother. Both of them live with the plaintiff's father the gentleman who swore the affidavit on which the application of the 22nd of January 1916 was based. It is practically incredible that if the defendant had used in Azam Husain Khan's presence language such as that sworn to in the fifth paragraph of the affidavit of the 2nd of February the substance off this conversation should not have been repeated by the plaintiff's brother to his father. Yet no direct reference is made to this episode in the affidavit produced on the 22nd January; and moreover when the plaintiff's father was asked in, who the persons were in whose presence the defendant had expressed a positive intention of alienating his property order to defeat the effect of any decree which the plaintiff might obtain, he replied that the could not for the moment remember who those persons were. It is, of course, possible that an explanation of these difficulties might be forthcoming. An ingenious one has been suggested to us by Mr. Boys, on behalf of the respondent. It dees seem, however, that the credibility of the important allegation made in the 5th paragraph of Azam Husain Khan's affidavit was, to say the least of it, shaken by what had gone before. As regards the other important statement of fact, namely the statement that the defendant had expressed to Husain Jan Khan his intention to marry another wife and to alienate the whole of his property in her favour in lieu of her dower-debt, which it would be, of course, open to him to fix at any figure which he might consider suitable at the time of the marriage, the position was really this: The Court below had before it hearsay evidence of something which Husain Jan Khan was alleged to have said. It had also before it the defendant's express denial of his ever having stated to Husain Jan Khan what the latter was alleged to have repeated. In this state of the evidence no further enquiry having been made it should clearly have been found in favour of the defendant that it was not proved that he had ever made the statement referred to in the 8th paragraph of Azam Husain Khan's affidavit, These being the circumstances and the materials before the Court, we are satisfied that in any case it was not a proper exercise of discretion on the part of the Court below to have granted Such an injunction as has been granted in the present case. It is unnecessary for us to consider whether some relief or security of a more limited character, or of a different nature, might or might not have been obtained by the plaintiff upon a proper judicial enquiry into the facts alleged on her behalf. On the materials before us we think that the order of the Court below was wrong and that the only proper order for us to pass is to set it aside. We accordingly allow the appeal and dismiss the plaintiff's application of the 2nd of February 1916 with costs here and in the Court below. Costs in this Court will include fees on the higher scale.

Walsh, J.

2. I entirely agree. In cases to which Order XXXIX, Rule 1 does not apply, I think it is a sound rule of practice if there is a serious controversy which can only be satisfactorily decided by an ordinary trial especially in a case of contract, not to grant an interim injunction. In this case in addition to the reasons already given by Mr. Justice Piggott, I am greatly influenced by the fact that it is a matrimonial squabble and that the affidavit goes into hearsay evidence. The point has not been argued and I recognize that the practice in this country must vary considerably from that in England, because in England there is no such provisions as in Order XXXVII, Rule 1 and Order XXXVIII, Rule 5. But I entertain a strong opinion that Clause (b) of Order XXXIX, Rule (1) cannot be worked unless facts are established of the same kind as are necessary for a case under Section 53 of the Transfer of Property Act. When the point comes to be argued the amendment which was made between the Code of Civil Procedure of 1882 and that of the present Code of 1908, will have to be considered, I am further of opinion in this case that the choice of Order XXXIX, Rule 1 for making the present application was by design. If the application had been made under Order XXXVIII, Rule 5, it would have been necessary for the plaintiff to prove that the defendant was 'about' to dispose of his property. Under Order XXXIX, Rule 1, it was sufficient to prove that he threatened or intended to transfer and some what flimsy evidence might induce a Court to come to the conclusion that a person has 'threatened' although it would fall far short of proof that he was 'about' to make the transfer complained of. I think the applicant knew that she could not prove that and that is why Order XXXIX was chosen.


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