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Sachindra Lal Mitter Vs. Panchanon Mitter and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1926Cal604,94Ind.Cas.871
AppellantSachindra Lal Mitter
RespondentPanchanon Mitter and ors.
Excerpt:
civil procedure code (act v of 1908), section 94, order xxxix, rule 1 - suit for declaration--temporary injunction, whether can be granted. - .....a temporary injunction would defeat the ends of justice. whatever other remedies he may have in the matter, injunction in the present suit is not his remedy. in this view of the matter, i am of opinion that the order that has been passed restraining the defendants from interfering with the plaintiffs' possession till the decision of the suit has been passed without jurisdiction. i would, therefore, make the rule absolute and set aside the order passed by the court below with coats to the petitioners, the hearing-fee being assessed at two gold mohurs.walmsley, j.2. i agree.
Judgment:

Mukerji, J.

1. It is unnecessary to set out the facts connected with the litigation out of which this application-arises as they have been set out in detail in the judgments of the two lower Courts. The application arises out of an order issuing a temporary injunction restraining the defendants, one of whom the defendant No. 2 is the petitioner before us, from interfering with the possession of the plaintiffs. The sole question before us now is whether the Courts below had jurisdiction to pass the order of temporary injunction complained of in this case. The order has been made in connection with a suit which is now pending in the second Court of the Subordinate Judge of the 24 Perganas. The prayers in the plaint in that suit are substantially as follows: (a) that the right of the plaintiffs who are three in number, as shebaits of certain deities may be declared; (b) that it may be declared that the three plaintiffs are entitled to the management of the debutter properties for a period of three years commencing from the 1st Magh 1331, B. S., each of the plaintiffs being entitled to such management for a period of one year; (c) that the defendants be restrained from interfering with the possession of the plaintiff No. 1 till the decision of the suit; the prayers (d), (e) and (f), that if necessary a scheme may be framed, need not be referred to as they relate to certain consequential reliefs. It is clear, therefore, that the suit is not for recovery of possession against the defendants. In Clause (c) to which I have already referred, the plaintiffs pray for an injunction restraining the defendants from interfering with their possession only till the decision of the suit. There is, therefore, no prayer for any injunction which may last after the disposal of the suit. The question is whether, upon prayers such as these, a temporary injunction may be issued by the Court in connection with the suit. In order to determine this question, we have to refer to the application upon which this injunction has been granted. The application filed by the plaintiffs supported by the affidavit of the plaintiff No. 1 states, first of all, the facts relating to the suit that is now pending. In para. 2 of the application, it is distinctly stated that the plaintiff No. 1 is now in possession of the properties which form the subject-matter of the suit, having been put in possession thereof by the last manager Kanailal Hitter. In para. 3, it is stated that, if the defendants be not restrained from interfering with the possession of the plaintiff No. 1, there will be a serious dislocation of business, the properties will be wasted, the sheba and puja of the deities will suffer as there will be no realization from the debutter properties and there will be breaches of the peace. Upon these allegations, it is difficult to say how a case justifying an injunction either under the provisions of Order XXXIX or Section 94 of the C.P.C. has been made out. Indeed, the learned Vakil appearing on behalf of the opposite party does not profess to contend that the case comes within the purview of Order XXXIX, C.P.C., but he urges that the injunction granted should not be disturbed inasmuch as it was really issued in accordance with the terms of Section 94, C.P.C., to prevent the ends of justice from being defeated. The allegations taken at their highest amount to this that, if an injunction is not granted, there will be interference in the plaintiffs' collection of rents, that there may be apprehension of a breach of the peace and that there may be disturbances of the plaintiff No. 1's, peaceful possession of the properties to which he has been put in possession. These allegations even if established would not, having regard to the nature of the suit and the reliefs prayed for, bring the case within the scope of Section 94, C. P. C, and it cannot be said that, even if these allegations be true, the refusal to grant a temporary injunction would defeat the ends of justice. Whatever other remedies he may have in the matter, injunction in the present suit is not his remedy. In this view of the matter, I am of opinion that the order that has been passed restraining the defendants from interfering with the plaintiffs' possession till the decision of the suit has been passed without jurisdiction. I would, therefore, make the Rule absolute and set aside the order passed by the Court below with coats to the petitioners, the hearing-fee being assessed at two gold mohurs.

Walmsley, J.

2. I agree.


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