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Durga Das Das Vs. NalIn Chandra Nandan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1934Cal694,155Ind.Cas.354
AppellantDurga Das Das
RespondentNalIn Chandra Nandan and ors.
Cases ReferredBegg Dunlop and Co v. Satish Chandra
Excerpt:
- .....and order 39, rule 1 which provide that the facts might be proved by affidavit or otherwise the learned judge should have taken into account the admission of defendant 3 that immediately before the suit he had been trying to dispose of one of the properties. all these properties had been bought during the time they were managing the estate. the learned judge was wrong to criticise the plaintiff for not paying sufficient court-fees for consequential relief, inasmuch as the suit should be valued according to the statement of the plaintiff. the plaintiff stated in the plaint that he was in his possession of all the six properties, that he himself was in direct possession of one property and the other five properties were let out to tenants from whom he was getting rents and that the.....
Judgment:

M.C. Ghose, J.

1. These two appeal were argued by Mr. Sharat Chandra Rai Choudhuri on 15th February last. My learned brother on hearing him proposed to dismiss them summarily. I proposed to admit them for hearing. I do not propose to say more than certain of the arguments advanced by Mr. Rai Chaudhuri which inclined me in favour of admission of these appeals. He urged that the learned Subordinate Judge committed an error in making adverse remarks on the plaintiff's case. He should have noted that the plaintiff was a small child when his mother died and his elder sister, defendant 2, took care of him and defendant 1 who married her came to live as ghar jamai, and during his infancy they exercised their influence on him.

2. During his minority, his case is that they and defendant 3 managed the estate and embezzled large sums of money and when he was 20 years old, they induced him to execute three deeds of release to the extent of one lac of rupees on the representation that his father desired that the gifts should be made, but that there was nothing in his will to that effect. The learned Subordinate Judge criticised the affidavit filed on behalf of the plaintiff ; but having regard to the provisions of Order 38, Rule 5(1) and Order 39, Rule 1 which provide that the facts might be proved by affidavit or otherwise the learned Judge should have taken into account the admission of defendant 3 that immediately before the suit he had been trying to dispose of one of the properties. All these properties had been bought during the time they were managing the estate. The learned Judge was wrong to criticise the plaintiff for not paying sufficient court-fees for consequential relief, inasmuch as the suit should be valued according to the statement of the plaintiff. The plaintiff stated in the plaint that he was in his possession of all the six properties, that he himself was in direct possession of one property and the other five properties were let out to tenants from whom he was getting rents and that the learned Judge was wrong in holding that the defendants were in possession of the properties.

3. It was suggested that the appeals were made very late. It was urged in reply that the petitions were made immediately the suit was filed and they were disposed of on 17th November and thereafter the plaintiff made no delay but immediately obtained copies of the necessary documents and filed the appeals in the beginning of December and it was not his fault that the appeals were not heard till the middle of February. In my view, we should admit these appeals, look at the records and hear the parties before forming our final opinion.

Lort-Williams. J.

4. These are two appeals from a judgment of Mr. Hiralal Mukherjee, Subordinate Judge at Alipur refusing to grant two applications by the plaintiff (1) for attachment of property before judgment Under Order 38, Rule 5, Civil P.C. and (2) for a temporary injunction Under Order 39, Rule 1, Civil P.C. The plaintiff's father died in January 1929, leaving considerable property both moveable and immoveable and a will under which plaintiff became sole owner of the estate. He attained his majority in August 1929 and took out letters of administration in November. In 1933, when he was 22 years of age, he brought the present suit against his sister and her husband, and the Manager of the estate. The plaint is a long, rambling and scandalous pleading, full of unnecessary and irrelevant matter, and deficient in particulars. It offends against all the rules of pleading contained in Order 4, Civil P.C., and, if any attention were paid in the Subordinate Courts to the rules of pleading and procedure, it ought to have been struck out long ago Under Order 6, Rule 16, as tending to prejudice, embarrass and delay the fair trial of the suit. So far as it is possible to ascertain from this confused document what the plaintiff claims, he seems to allege that he was a person of weak intellect, and under the control and dominance of the defendants, who conspired together to defraud him. That, inter alia, they took possession of all his properties, and used the money belonging to his estate to buy, and their own names certain other properties, enumerated 1-6 in Schedule 'Chha' and induced him by fraud to execute three deeds of release for sums amounting to one lac of rupees. He asks for a declaration of title to the properties in Schedule 'Chha,' and for accounts. He does not ask for possession or for any other consequential relief, or for an injunction.

5. The defendants deny the allegations of fraud in toto, admit the deeds, which were duly registered, and which they say, the plaintiff executed voluntarily two years after he attained majority, and in accordance with the wishes of his father, and state that they purchased the properties in Schedule 'Chha' with their own money. The application for attachment related of course to defendant's own properties, and was in respect of plaintiff's claim for accounts. The application for an injunction, related to the properties in Schedule 'Chha' which plaintiff sought to restrain defendants from alienating. The pleadings and affidavits disclose the following facts. The properties in Schedule 'Chha' are in the possession of the defendants. They have built houses thereon, and have been living there for some time and have let out part to tenants, from whom they collect the rents. Their names are registered as owners and they pay the municipal taxes. The title deeds to properties 1-4 were left, with other properties, in plaintiff's bouse, and have been misappropriated by him. The title deeds to properties 5 and 6 are in the possession of the manager to whom they belong. He borrowed money in 1933 by hypothecating property No. 5 only, for the purpose of buying another house, and transferred the title-deeds to the mortgagee. Subsequently, in order to pay off the mortgage, he decided to sell the property and executed a bainapatra. This was long before the institution of the suit, but on hearing of the suit he postponed registration of the document, returned the baina money with costs and fees thereon to the purchaser, recovered the document, and filed it in Court. The Subordinate Judge did not deal with the matter summarily but heard the pleaders at considerable length and after carefully considering all the facts and documents he refused both applications. His reasons for refusing an injunction were:

1. That the plaintiff's affidavit is inadequate and defective. He alleges, in Para. 12 thereof simply that the defendants are trying to dispose of the properties in Schedule 'Chha' and states that his allegation is based partly on information 1 which he believes to be true and partly on belief. He does not say which part is based on information and which on belief, nor does he state the grounds of his belief, contrary to the provisions of Order 19, Rule 3, Civil P.C. Padmabati Dasi v. Rasik Lal Dhar, (1911) 37 Cal 259. No overt act towards the alienation of the properties in Schedule 'Chha' is even suggested in the application, such for example as negotiations of offers for sale, and there is no proof that the property is in danger of alienation. These reasons clearly are sound and unanswereble, and such proof is essential before any order can be made under the provisions of Order 39, Rule 1.

2. The plaintiff, in respect of the Schedule 'Chha' properties, asks in his plaint only for a declaration of title, without any consequential relief, and without asking for an injunction. It is clear from the pleadings and affidavits that he is out of possession, yet he does not ask for it. His claim is barred Under Section 42, Specific Relief Act.

3. The title-deeds of the properties are in the possession of the plaintiff. (This statement is not quite accurate. The plaintiff has possession of the deeds of properties 1-4.) In view of this and the pendency of the suit, the plaintiff cannot have any reasonable apprehension of alienation. No person would be willing to purchase property which is the subject of lis pendens. These reasons also are sound. In a suit for declaration an injunction should not be granted where there is no claim for consequential relief or permanent injunction: Shiromani v. Banta, 1926 Lah 504. The learned Judge's, reasons for refusing attachment were that the affidavit was sworn, not by the plaintiff, but by an employee of the plaintiff, who states in paras. 4 and 6 that the defendants are trying to, and are about to, dispose of their properties with intent to obstruct and delay the execution of the decree, and that his statements are based partly on information and partly on belief, without stateing which are based on which and with out stating his grounds of belief. Therefore this affidavit also is inadequate and defective, and open to the same objections as the other, and offends against the order and the decision to which I have already referred. The learned advocate for the plaintiff argued that in addition to plaintiff's affidavits, which he admitted were inadequate and defective, there were in the objections filed by the defendants admissions upon which the Judge could be satisfied 'otherwise' within the meanling of Order 38, Rule 5(1).

6. But the Court must be thoroughly satisfied, and there is nothing in these documents to show that the defendants ever had any intention of obstructing or delaying the execution of any decree which might be passed against them, or with such intent were about to dispose of their property. Mere vague allegations are not sufficient: Senaji Kapur Chand v. Pannaji Devi Chand, 1922 Bom 276 and see Nowroji Padamji v. Deccan Bank Ltd., 1921 Bom 69. And the mare fact that a defendant has in the past mortgaged or disposed of his property is not a sufficient ground for levying attachment. There must be a present intention: Manmathe v. Nagendra, 1926 Cal 855. Further the Judge held, for the reasons given in his judgment, that the plaintiff had failed to make out a prima facie case. This is essential before either injunction or attachment can be granted. Moreover the Court must be satisfied that interference is necessary to prevent injury which is irreparable, and that the mischief or inconvenience which is likely to arise in consequence of withholding the relief will be greater than that from granting it: Daily Gazette Press Ltd. v. Karachi Municipality, 1930 Sind 287 and Vathiar Ramanuja Aiyangar v. Aiyanachariar, (1912) 17 IC 219 and many other cases.

7. The question of appeal raises the further question whether the procedure under the Code and the machinery of the High Court are generally appropriate to appeals in such matters as these. It is true that an appeal is given, but in most, if not in every such case, it must be fruitless and should not therefore be admitted except in very exceptional circumstances. Both injunction and attachment are intended to give prompt relief from immediate or impending danger of injury which will be irreparable. These applications were heard and refused by the learned Judge on 17th November 1933. They came before this Court for disposal Under Order 41, Rule 11, Civil P.C., on 15th February 1934 no less than three months after the alleged danger had arisen. If admitted, these appeals will be heard some two or three years hence. ( The Court is now hearing Miscellaneous Appeals of 1931 and 1932). Long before that date in all probability, the suit itself will have been decreed. Could any procedure be more absurd or more likely to bring the Court and the administration of justice into contempt? In my opinion the Court ought not to admit appeals from such orders, except in cases of serious misdirection in law or fact, when special directions might be given for expedition.

8. Moreover it must be remembered that both these orders were discretionary, and an appellate Court ought not to interfere with the exercise of a Judge's discretion unless satisfied that it was not judicially exercised, that is to say, that the Judge acted on wrong principles. The mere fact that the Judges of the appellate Court might have taken a different view is not a sufficient ground for interference: Daily Gazette Press Ltd. v. Karachi Municipality, 1930 Sind 287, Watson v. Rodwell, (1876) 3 Ch D 380. Sheffield v. Sheffield, (1875) 10 Ch 206, Maass v. Gasslight and Coke and Co., (1911) 2 KB 543 and Donald Campbell and Co. v. Pollak, (1927) AC 732 and many other cases.

9. If the Judge rightly appreciates the facts, and applies to those facts the true principles, that is a sound exercise of judicial discretion: see White, C. J., in Subba v. Haji Badahaw, (1903) 26 Mad 168. This well established rule frequently seems to be overlooked or disregarded by appellate Courts in India, or appellate Judges too readily come to the conclusion that a discretion has not been exercised judicially. Finally neither injunction nor attachment ought to be lightly granted. It would be a serious thing if persons in possession were restrained from making use of the property merely because a suit had been instituted about it. It is only where it is essential that property should be kept in its existing condition pending suit, that the Court should interfere: Begg Dunlop and Co v. Satish Chandra, 1920 Cal 276. For all these reasons I am of opinion that these appeals ought to dismissed, but as my learned brother does not agree, the matter must be referred for hearing by a third Judge, under the provisions of Clause 36 of the Letters Patent.

Buckland, Ag. C. J.

10. I am not satisfied that the learned Subordinate Judge wrongly exercised his discretion ; and I agree with my learned brother Lort-Williains, J. that these appeals should be summarily dismissed Under Order 41, Rule 11, Civil P.C.


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