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Umapati Choudhuri and ors. Vs. Subodh Chandra Choudhuri and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 2637 of 1951
Judge
Reported inAIR1953Cal377,57CWN112
ActsCode of Civil Procedure (CPC) , 1908 - Section 15 - Order 39, Rules 1 and 2; ; Specific Relief Act, 1877 - Section 56
AppellantUmapati Choudhuri and ors.
RespondentSubodh Chandra Choudhuri and ors.
Appellant AdvocateA.C. Gupta, ;Binayak Nath Banerji and ;Sushil Kumar Biswas, Advs.
Respondent AdvocateA.N. Bose, ;Dwijendra Nath Mukherji and ;Anil Kumar Das Gupta, Advs.
Cases ReferredAbdul Karim Abu Ahmad Khan v. The Allahabad Bank Ltd.
Excerpt:
- .....by subodh who is the son of mohitlal. in this earlier suit which was numbered 39 of 1945 the present plaintiffs were not made parties. it is on that ground that the plaintiffs urged that the previous partition decree is ineffective and that its execution should be prevented. a preliminary decree was passed in that earlier suit on 15-11-1946. a commissioner was appointed on 18-2-1948 for giving effect to the preliminary decree. on 10-9-1948 before the commissioner had completed' his labours, the present petitioners filed an application before the commissioner in which they claimed an interest in the properties on the basis of the deeds of transfer from lalit which have been mentioned above and prayed that an allotment may be made in their favour. the commissioner rightly put up this.....
Judgment:

K.C. Das Gupta, J.

1. The petitioners instituted a suit which has been numbered as Suit No. 12 of 1950 for partition of properties belonging originally to four brothers, Nandalal, Amritalal, Motilal and Mohitlal. The petitioners are the sons and legal representatives of Panchkori, one of the six sons of Amritalal. It is not disputed that Panchkori did acquire by inheritance an interest in the joint properties. Sometime before 1932, he lost that interest and that interest passed to another son Amritalal, Lalit. The petitioners have brought the suit on the averment that thereafter they have reacquired an interest in the properties and found their case on deeds of transfer from Lalit. They have also asked for a permanent injunction restraining the defendants from executing the decree passed in an earlier suit for partition instituted by Subodh who is the son of Mohitlal. In this earlier suit which was numbered 39 of 1945 the present plaintiffs were not made parties. It is on that ground that the plaintiffs urged that the previous partition decree is ineffective and that its execution should be prevented. A preliminary decree was passed in that earlier suit on 15-11-1946. A commissioner was appointed on 18-2-1948 for giving effect to the preliminary decree. On 10-9-1948 before the Commissioner had completed' his labours, the present petitioners filed an application before the Commissioner in which they claimed an interest in the properties on the basis of the deeds of transfer from Lalit which have been mentioned above and prayed that an allotment may be made in their favour. The Commissioner rightly put up this application before the court. The application was however dismissed on 14-9-1948, not in the view that the story of transfer was false or doubtful but in the view that as it was not the case of some of the defendants in that suit that the proposed added defendants had got interest by succession or assignment since the institution of the suit, the prayer for adding them could not be allowed. It is not disputed before us that the order passed by the learned Judge was based on a misappreciation of the law. The present plaintiffs however took no further steps in the matter till they filed the suit on 14-3-1950. Before that date much progress had been made in the earlier suit. The Commissioner filed his report on 16-9-1948 and the final decree was passed on 21-1-1950. After the present suit had been filed on 14-1-1950, the stamps for the final decree were put in by the plaintiffs on 15-3-1950.

2. On 16-3-1950, the plaintiffs, i.e., the present petitioners, filed their application for temporary injunction restraining the opposite party Subodh from executing the decree in the partition suit. The application was rejected by the learned Subordinate Judge on 27-9-1950. An appeal against this order of rejection was dismissed by the learned District Judge on 31-8-1951. The opposite party filed his application for execution of the final decree in that earlier partition suit on 11-9-1951. Writ was issued on 14-9-1951 and in his report of 17-9-1951 the Commissioner stated that he had 'given delivery of possession of the sadar rooms and the land adjoining the said sadar room, kitchen, store room etc., to the decree-holder, subject to the right of the judgment-debtors to use the existing passage used by them for the ingress and egress of their house till the common passage is formed according to the decree by breaking open the portion of the wall just to the south of the stair case.........' He mentioned further in the report that as regards the other properties possession would be given gradually.

3. It is obvious that to the extent the final decree in favour of Subodh has already been. executed, the present Rule is infructuous. Clearly, however, the decree has been executed only in part and as regards the part which has not been executed, it is necessary for us to consider whether we shall interfere with the decision of the courts below that the plaintiffs are not entitled to any order restraining Subodh from executing the remaining portion.

4. It must be pointed out at the outset that Lalit from whom the plaintiffs claim their present interest in the properties does not challenge the validity of the transfers made by him. While we are anxious to say nothing that might embarrass the court below in judging the issues between the parties, we are bound to say that there is nothing 'prima facie' that would entitle us to hold that the story of transfer by Lalit is not true. If there was a good and valid transfer from Lalit in about 1941, as is alleged, they were obviously necessary parties in the partition suit that was instituted by Subodh. The decree for partition obtained in the absence of necessary parties cannot be effective, and the fact that the learned Judge refused the application of these persons to be added as parties will not alter the situation. If they are necessary parties and the partition decree that was obtained in Suit No. 39 is ineffective, it must be held that the present plaintiffs have got a good prima facie case and a reasonable chance of success in their present suit. I am unable to see also how the learned Judge in the court below thought that the plaintiffs' would not be entitled to an order permanently restraining the defendants who had obtained the decree in their favour in the earlier partition suit from giving effect to that decree. There can be no doubt also on a consideration of the question of balance of convenience that the balance is in favour of an order of restraint. If finally the plaintiffs fail in their suit, the parties who had obtained the decree in the previous suit will suffer nothing more than the delay in getting the fruits of their litigation, as a result of the injunction order being granted. If, on the other hand, the plaintiffs win the suit and the opposite party has not been restrained from, executing his decree -- so far as it remains to be executed, -- there are bound to be many complications, for the solution of which both parties will have to come to court. The. prevention of such multiplicity of proceedings is one of the purposes for which orders of restraint can be legitimately passed. I have no doubt therefore that if there be no bar in law to the granting of an order of injunction it is fit and proper that the defendant opposite, party should be so restrained from executing the decree in the previous case.

5. It is contended, however, and this contention appears to have been accepted by the learned court below, that in law the plaintiffs are not entitled to such an order of injunction. It is stated in the first place that the provisions of Order 39, Rule 2, Civil P.C. on which the applicants relied do not apply to this case & secondly that if these do not apply there is no scope for the exercise by the court of its inherent jurisdiction under Section 151 Civil P.C. Order 39, Rule 2 provides:

'In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgments apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any breach of contract or injury of a like kind arising, out of the same contract or relating to the same property or right.'

It is argued that the injury which the plaintiffs say they will suffer if the opposite party No. 1 executes his decree, is not injury within the meaning of the above provision of law. I do not see why the meaning of word 'injury' should be limited in this manner. I am inclined to think that the court should give the widest interpretation to the word, for doing justice. Supposing however that the injury which the plaintiffs may suffer in this case is not injury within the meaning of Rule 2, Order 39, it by no means follows that the court's hands are tied. It has been argued on the authority of a case decided in -- 'Varadacharlu v. Narasinha Charlu : AIR1926Mad258 that as the matter of temporary injunction has been dealt with by Civil P.C. under Order 39 there is no scops for the court to exercise its inherent jurisdiction. We are unable to accept this view. As was held by this Court in -- 'The Chinese Tannery Owners Association v. Makhan Lal Ganguli', : AIR1952Cal560 (B) (order 39 does not exhaustively deal with the matter of granting of temporary injunction) and so on the authority of the Full Bench decision in --'Abdul Karim Abu Ahmad Khan v. The Allahabad Bank Ltd.', AIR 1917 Cal 44 (C), it should be held that apart from the provisions of Order 39 the Court can grant temporary injunction in the exercise of its inherent jurisdiction.

6. It was next argued that the plaintiffs have not come with clean hands and so the court should not interfere in their favour. Stress was laid by Mr. Bose on the fact that the present plaintiffs did not themselves come forward with a prayer to be added as parties during all the time from August 1945 till September 1948. He contends that as the plaintiffs and the defendants of the suit were living in the same house they must have had full knowledge of the suit and still they stood by allowing Subodh to spend a considerable sum of money. Assuming that the present plaintiffs did know of the previous litigation, we do not think that they had any duty of coming forward to the court at the very early stage. As their claim to a share in the properties on the basis of transfer from Lalit was not being challenged by Lalit, the only question they were concerned with was the question of proper allotment. They came in and filed their application to be added as parties before the allotments had been made. It is not their fault that their application was dismissed.

7. Next, it is argued that they should have moved a higher court against the order rejecting their prayer or at least they should have brought the suit that they did ultimately bring in 1950 much earlier than that. If they had done so it may well be that Subodh would have been spared much of the expenses he has incurred. It is well to notice however that Subodh, himself did not apparently challenge the validity and truth of the story of transfer. When therefore the court refused the application of these plaintiffs to be added as parties it is difficult to say why Subodh also did not take steps to get that order set aside and to have the present petitioners added as parties. After all, Subodh was the plaintiff and should have known very well that in the absence of necessary parties -- and he obviously thought that these plaintiffs were necessary parties -- the partition would be ineffective.

8. While it may be true to say that the 'petitioners would have been better advised to bring the suit much earlier than they did, I am unable to accept Mr. Bose's contention that that is a reason why they should not get the assistance of the Court, in the form of a temporary injunction.

9. The learned Additional District Judge also thought that the provisions of Section 56 of the Specific Relief Act were a bar to the present prayer for injunction. He was obviously wrong as there is nothing in that section to prevent the court from restraining a party from proceeding with judicial proceedings.

10. We have come, to the conclusion that there is no legal bar to the success of the petitioners' present petition. On the contrary, we are clearly of opinion that the learned Judge refused to exercise his jurisdiction in the matter on a wrong view of the law. We think it proper and necessary that the opposite party No. 1 should be restrained from executing that portion of the decree he has obtained in the previous partition suit which has not yet been executed, except that the opposite party will be free to execute the decree in so far as it is for costs.

11. The Rule is made absolute in part. The parties will bear their own costs in these proceedings.

12. Let the records be sent down without delay.

Lahiri, J.

13. I agree.


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