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Nirmal Kumar Bag and ors. Vs. Santi Kumar Chakraborty and ors. - Court Judgment

LegalCrystal Citation
SubjectContract;Property
CourtKolkata High Court
Decided On
Case NumberS.M.A. No. 75 of 1971
Judge
Reported inAIR1981Cal320,85CWN453
ActsCode of Civil Procedure (CPC) , 1908 - Section 115 - Order 39, Rule 1; ;Specific Relief Act - Section 6
AppellantNirmal Kumar Bag and ors.
RespondentSanti Kumar Chakraborty and ors.
Appellant AdvocateSaktinath Mukherji and Satyajit Banerjee, Advs.
Respondent AdvocateB.K. Panda and ;M.K. Roy, Advs.
DispositionRevision allowed
Cases ReferredHirendra Nath Dutta v. Corporation of Calcutta
Excerpt:
- .....in the case reported in : [1957]1scr488 , it is held that the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and be regarded as one legal proceeding.16. it is pointed out by mr. panda that there is no specific provision for permanent injunction under section 6 of the specific relief act and as such the court should not bo considered as helpless in rendering legal remedy to a person who alleges that there hag been violation of the order of injunction passed by the trial court. in support of his contention he makes a reference to the case of hirendra nath dutta v. corporation of calcutta, ilr 1 cal 435. at page 444 of the report it is staled that an application for order under section.....
Judgment:

Sudhindra Mohan Guha, J.

1. This application for revision is directed against the order passed by Shri A. K. Dutta (II), Subordinate Judge, Midnapore, allowing the plaintiff-opposite party's prayer for mandatory injunction and directing the petitioners to remove the structures and constructions raised by them in violation of the Court's order of injunction and thereby reversing the order passed by Mun-sif, Additional Court, Tamluk in other Suit No. 144 of 1965 (subsequently renumbered as other Suit No. 80 of 1968).

2. The plaintiff-opposite party No. 1 filed the other Suit No. 144 of 1965 on 12th April, 1965 in the First Court of Munsif at Tamluk under Section 6 of the Specific Relief Act for recovery of possession of the suit lands from the defendants-petitioners.

On 2nd June, 1965 the Court passed an interim order of injunction directing the petitioners to maintain the status quo in respect of the suit lands. On 16th July, 1965 the said interim order of injunction was made absolute. On appeal by the petitioners the said order was affirmed. The suit being transferred to the Additional Court was renumbered as O. S. No. 80 of 1965. The suit was eventually decreed on contest on 7th December, 1968.

3. The High Court in revision by an order dated 21st July, 1969 made the rule being C. R. No. 221 of 1969 absolute and set aside the judgment and decree of the trial Court with liberty to the plaintiff to convert the said suit into a regular title suit.

4. On or about 31st December, 1969 the plaintiff-opposite party filed an application for amendment of the plaint and for conversion of the other suit into a regular title suit. After the conversion into a title suit the plaintiff-opposite party however alleged by several applications that the petitioners had been making constructions on the suit lands since Dec., 1969. Ultimately, the plaintiff-opposite party filed an application for mandatory injunction in or about April, 1971 directing the petitioners to demolish the structures made, as alleged.

5. The trial Court by an order dated 12th August, 1970 disallowed the plaintiff's prayer for mandatory injunction but was pleased to direct the petitioners to stop work for further constructions and to restrain the petitioners till the disposal of the suit from constructing any new structure.

6. Both the parties came in appeal before the District Judge. The learned Subordinate Judge by the judgment dated 27th March, 1971 allowed both the appeals and consequently the temporary injunction issued by the learned Munsif was set aside and the mandatory injunction refused by the trial Court was granted.

7. Mr. Saktinath Mukherji, the learned Advocate for the petitioners contends that the learned Court below erred in law by not holding that the temporary injunction being essentially an interlocutory order its duration came to an end automatically with the disposal of the suit and it cannot be revived when the suit was sent back for retrial. The learned Court was further said to have erred in holding that the petitioners had violated the subsisting order of injunction. Mr. Mukherji points out that there was no order of temporary injunction at thematerial time, when the defendants had made the alleged constructions.

8. In support of his argument Mr. Mukherji relies on 'A treatise on tile law relating to injunction' by Howard C. Joyce (Vol. 1) 1909 at page 510. Under Section 330(b) of that book a decree dismissing the bill for an injunction, operates as a dissolution of an interlocutory injunction, unless it is continued in force in whole or in part by some order of the Court. So, when the injunction is ancillary to the principal action and such action fails by a verdict for the defendants, injunction falls with it. The appeal against it does not alter the effect of such judgment.

9. On the basis of such observations by the author it is argued that the order of injunction cannot be subsisting with the disposal of the suit.

10. He also refers to the decision of the Allahabad High Court in Smt. Prabhawati v. Dr. Pritam Kumar, reported in 1969 All LJ 873. At page 875 of the report observation reads as follows :--

'It is now well settled that an order, whether administrative or judicial against which an appeal or revision is provided merges with an order passed in appeal or revision ..... Even if it is accepted that theeffect of setting aside of the appellate order or the revisional order may be to revive the original order, yet interim orders of stay etc. passed pending the decision of a case would not be on a par and this principle would not apply to them because the interim orders do not merge in the final orders. According to the Supreme Court they lapse or cease to exist.' (Madan Gopal v. Secretary to the Government, : AIR1962SC1513 and Collector of Customs v. East India Commercial Company, : [1963]2SCR563 , Rel. on).

11. Next he refers to the Full Bench decision of the Allahabad High Court in the case of Abdul Hamid v. Karim Bux, reported in : AIR1973All67 . It is held therein that on the dismissal of a suit in default the attachment before judgment automatically ceases and it is not revived on the restoration of the suit.

12. Last of all Mr. Mukherji draws my attention to page 265 in the case of Nagar Mahapalika, Lucknow v. Ved Prakash, reported in : AIR1976All264 , wherein it is laid down 'It has thus been a constant view of this Court that an interlocutory order like an order passed on an application fortemporary injunction or for attachment be-fore judgment would cease on the dismissal of the suit and would not automatically be revived nor can be deemed to be in force without any further order by the Court after the suit is dismissed. It is always open to the plaintiff to move the Court if the suit which had been dismissed for default is restored, to grant temporary injunction. But the earlier interim injunction order which bad ceased to be operative on the dismissal of the suit for default, would not automatically revive on the setting aside at the dismissal order and the restoration of the suit'.

13. Mr. Bhupendra Kumar Panda, the learned Advocate for the opposite parties, points out at the outset that this Court will not interfere with the impugned order in revision. According to him, the High Court will not interfere in revision unless there were gross irregularities and lack of control over judicial proceedings. He relies on the decision in the case of Harekrushna Patra v. Rekhamani Das, reported in : AIR1974Ori185 . According to him, in order to succeed the petitioner must show not only that a jurisdictional error has beea committed by Court below but also that the interests of justice call for interference by High Court. Reliance is made to the decision in the case of Director, Indian Agricultural Research Institute, New Delhi v. Vidya Sagar, reported in . It is also contended by Mr. Panda that this Court will not render assistance to a party which is guilty of delaying tactics. The petitioners are said to have come to this Court to take advantage after having made constructions on the suit lands in violation of the order passed by the Court. Reliance is placed on the decision of this Court in the case of Bhikari Behara v. Sm. Dhanapatie Bentia, reported in : AIR1970Cal176 . The principle for interference under Section 115 of the Civil Procedure Code was laid down by Sudhamoy Basu, J. in Nanda Dulal Mahato v. Hazarilal Mondat, reported in : AIR1975Cal127 . It is laid down therein that an erroneous decision even with regard to law would not necessarily furnish a ground for interference unless it concerned the jurisdiction of the Court. If the matter amounts to an order tending to overlap the jurisdiction of the suit itself the Court in revision will certainly interfere.

14. Thus, it is clear that this Court inrevision will certainly interfere with an orderif it has been passed without jurisdiction, which goes to the very root of the case.

15. Next it is argued by Mr. Panda that the interlocutory order of injunction was passed by the trial Court and the appeal and revision against that order should be con-sidered as one legal proceeding. In the case reported in : [1957]1SCR488 , it is held that the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and be regarded as one legal proceeding.

16. It is pointed out by Mr. Panda that there is no specific provision for permanent injunction under Section 6 of the Specific Relief Act and as such the Court should not bo considered as helpless in rendering legal remedy to a person who alleges that there hag been violation of the order of injunction passed by the trial Court. In support of his contention he makes a reference to the case of Hirendra Nath Dutta v. Corporation of Calcutta, ILR 1 Cal 435. At page 444 of the report it is staled that an application for order under Section 45 of the Specific Relief Act is maintainable to prevent the Corporation from sanctioning plan in violation of the provisions of the Calcutta Municipal Act and the rules made thereunder, as the latter Act furnishes no specific and adequate legal remedy to a person for such violation. It is also contended by him that the decisions of the Allahabad High Court referred to by Mr. Mukherji have no application to the present case as those cases had been dismissed. According to him the present suit was decreed and the suit was only remanded to the trial Court by the High Court for conversion into a regular title suit. In this view of the matter according to Mr. Panda, the order of temporary injunction will not cease to be operative on remand of the suit by the High Court.

17. It goes without saying that the original suit for possession under the Specific Relief Act was decreed by the trial Court but as there was no order for permanent injunction, the order of temporary injunction ceased to be operative on the disposal of the suit, whether decreed or dismissed. It cannot be said by any stretch of imagination, that the interlocutory order like an order passed on an application for temporary injunction, the operation of which ceases on the disposal of the suit, would automatically be revived or can be deemed to be in force without any further order by the Appellate Court or by the Court concerned, after the disposal of the suit. In such a case thecourse open to the party is to file a fresh application for temporary injunction after revival of the suit. In this case admittedly, there was no prayer for temporary injunction after the conversion of the suit into regular title suit. It is also not disputed that all the constructions were alleged to have been made after the suit had been sent back to the trial Court on remand. I cannot be in agreement with Mr. Panda that the order of temporary injunction passed on 2nd June, 1965 and made absolute on 16th July, 1965 automatically revived after the suit had been sent back on remand. The natural and inevitable conclusion is that such constructions had been made at a time while the order of injunction was not sub-sisting.

18. In such a case this Court in revision would certainly interfere, as the Appellate Court had absolutely no jurisdiction to pass an order for mandatory injunction in respect of constructions made after the disposal of the original suit. The impugned order has not only been passed without jurisdiction but there has been glaring miscarriage of justice. Thus, the impugned order cannot be sustained in law.

19. In the result, the application for revision is allowed but considering the circumstances, without costs. The rule is made absolute and the impugned order is set aside.


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