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Sudhakar Mukherjee Vs. Gofur Sheikh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Revn. No. 2193 of 1957
Judge
Reported inAIR1959Cal386,63CWN354
ActsWest Bengal Estates Acquisition Act, 1953 - Sections 44 and 55; ;Code of Civil Procedure (CPC) , 1908 - Sections 141 and 151 - Order 39, Rules 1 and 2
AppellantSudhakar Mukherjee
RespondentGofur Sheikh and ors.
Appellant AdvocateA.D. Mukherjee and ;Amulya Kumar Mukherjee, Advs.
Respondent AdvocateS.C. Mittra and ;Arun Kishore Das Gupta, Advs.
Excerpt:
- .....and purporting to act as a civil court, exercising powers under order 39, rule 1 or rule 2 of the civil procedure code or under section 151 of the civil procedure code, made the order of temporary injunction as prayed for. against that order, the present rule was obtained. 2. section 55 of the west bengal estates acquisition act has laid down that a tribunal appointed for the purpose of section 44 shall have all the powers of a civil court under the code of civil procedure, 1908. if, therefore, the facts and circumstances are such as would attract any provisions of the civil procedure code, it may wall be that the tribunal would have jurisdiction to act according to such provisions. as i have already indicated, the tribunal does not seem to be sure in its own mind whether order 39, rule.....
Judgment:

K.C. Das Gupta, J.

1. After the present petitioner has been recorded in the draft record of rights published under Section 44(1) of the West Bengal Estates Acquisition Act, 1953, as the person in actual possession of certain plots of' land, an objection was taken in accordance with the provisions of that section and was rejected by the Revenue Officer. Against this order of rejection, the present opposite parties, who claimed to be the persons in actual khas possession as korfa tenants, appealed to the Tribunal under the provisions of Section 44(3) of the Act. That appeal is still pending for decision. In the meantime, immediately after the appeal was filed, the opposite parties made an application for an order of temporary injunction, restraining the present petitioner from dispossessing or causing obstruction to the appellant's peaceful possession of the disputed land. The Tribunal overruled the objection raised by the present petitioner that a Tribunal under this Act had no jurisdiction to make any order of temporary injunction and purporting to act as a Civil Court, exercising powers under Order 39, Rule 1 or Rule 2 of the Civil Procedure Code or under Section 151 of the Civil Procedure Code, made the order of temporary injunction as prayed for. Against that order, the present Rule was obtained.

2. Section 55 of the West Bengal Estates Acquisition Act has laid down that a Tribunal appointed for the purpose of Section 44 shall have all the powers of a Civil Court under the Code of Civil Procedure, 1908. If, therefore, the facts and circumstances are such as would attract any provisions of the Civil Procedure Code, it may wall be that the Tribunal would have jurisdiction to act according to such provisions. As I have already indicated, the Tribunal does not seem to be sure in its own mind whether Order 39, Rule 1 or Rule 2 of the Civil Procedure Code does apply and, if so, which of these two Rules. It has merely referred to Section 141 of the Civil Procedure Code and has contended itself with saying,

'the procedure laid down in respect of the suit, may be followed, as far as it can be made applicable, in all proceedings in any Court of Civil jurisdiction.'

It has not said whether Order 39, Rule 1 or Rule 2 does apply to facts of the case. Quite clearly, however the provisions of Order 39, Rule 1 nave no application, as in the present proceedings there is no question of a property in dispute being in danger of being alienated by any party or wrongfully sold in execution of a decree or that the respondent in the proceedings threatened or intended to remove or dispose of the property with a view to defraud his creditors. Turning to Rule 2 of Order 39, we have to notice that that authorises a party to apply to the Court for a temporary injunction in a suit 'restraining the defendants front committing breach of contract or other injury of any kind.' I cannot see how by any stretch of imagination it is possible to say that the appeal to the Tribunal against the order rejecting the objections raised by the appellants to the entry made in the draft record is analogous to a suit for restraining the defendant from committing a breach of contract or other injury of any land. The utmost that could be said is that the proceedings are analogous to a suit but it is nowhere near a suit for restraining the defendant from; committing anything. I should make it clear that I should not be taken to have accepted the learned Judge's view that under the provisions of Section 141 of the Civil Procedure Code, the procedure prescribed in the Civil Procedure Code would be applicable to these proceedings in the Court of Appeal. But assuming, for the sake of argument, that the procedure does apply, I am clearly of opinion that the provisions of Order 39, Rule 1 or Rule 2 can have no operation to the facts and circumstances of the present proceedings.

3. The question remains whether such an order can be passed in the exercise or inherent jurisdiction, In my view, even if the provisions of Section 151 were not strictly applicable, the inherent power of any Court to do things that are proper for the ends of justice remains. It is necessary, therefore, to see whether, in passing the order in purported exercise of inherent powers for the ends of justice, the Tribunal has exercised a judicial discretion. It appears to me that the real question for decision in such a case is whether it is necessary, in the ends of justice, that something which might not have otherwise been done should be directed to be done. In deciding that, it is necessary for a Court or a Tribunal to take into consideration the position of the parries as already settled. The decided fact in this case is that the present petitioner is in khas possession. The correctness of that decision is no doubt disputed, but whether that is correct or not has yet to be decided. So long as the decision has not been made, the interests of justice require that the Court should proceed on the basis that the decision has been correctly made. To ignore a decision made merely because an appeal had been preferred, can never be said to be in the interests of justice. In my judgment, the Tribunal has not exercised a judicial discretion in the matter and has acted illegally in the exercise of jurisdiction in making (the order of temporary injunction.

4. I would, therefore, make this Rule absolute, set aside the order of the Tribunal and order that the application for temporary injunction be rejected. The petitioner will get his costs from the opposite parties. The hearing fee is assessed at two gold mohurs.

5. Let the records be sent down without delay.

Debabrata Mookerjee, J.

6. I agree.


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