Bishnudas Babaji and Others vs Sri Sri Netai Gouranga Trust and Another

Harish Tandon, J.—This revisional application is directed against Order dated 3rd February, 2014, passed by the Additional District Judge, 1st Court, Barasat, in Miscellaneous Appeal No. 3 of 2014 reversing the Order No. 4 dated 19th December 2013, passed by the learned Civil Judge (Senior Division), 1st Court, Barasat in Title Suit No. 832 of 2013.

The defendants assailed the said order on multiple grounds, including the ground relating to suppression of material facts.

Before proceeding to deal with the submissions advanced by the respective advocates, it would be profitable to narrate the salient features of the case.

The plaintiffs/opposite parties filed the instant suit, i.e. Title Suit No. 832 of 2013, seeking a decree for declaration as Trustee of Sri Sri Netai Gauranga Trust on the basis of the Deed of Trust dated 20th February 2009 having individual right to look after the day to day affairs of the Ashram with the assistance of one Raghunathdas Babaji.

A further declaration is sought relating to the Meeting dated 16th November 2013 to be illegal, ultra vires, bad in law and without jurisdiction.

The plaintiffs/opposite parties further prayed for permanent injunction against the defendant no. 1 from causing any disturbances or hindrance in peaceful running of the said Ashram in terms of the said Trust Deed as well as the Power of Attorney dated 17th April 2009.

The plaintiffs/opposite parties claimed to be the Managing Trustee of the aforesaid Trust along with other defendants who are also the trustees.

Sri Sri Netai Gouranga Trust was created upon execution and registration of a Deed of Trust dated 18th April 1949; executed by one Ramandas Babaji as settler.

By virtue of a will and testament, the said Ramandas Babaji appointed several persons as trustees and shebaits for administration and management of the Trust dedicated to the deities. A Letter of Administration was granted in a Matter No. 234 of 1980 by this Court in its Testamentary jurisdiction. Subsequently, appointment was given by the Administrator to one of the trustees/shebaits, namely Shyamanandadas Babaji, who was discharging his duties as trustee and/or shebait until 28th of February 1993 when he left for heavenly abode.

Thereafter, Netaipadadas Babaji was discharging his duties as trustee/shebait till he breathed his last on 2nd October 1995. Subsequently, Lalbeharidas Babaji was appointed as one of the trustees/shebaits but unfortunately he expired on 20th of November 1997.

It is further averred that Madhusudandas Babaji stepped into the shoes of the deceased trustee and was entrusted to discharge the duties till the time of his death, i.e. 17th December 2007.

It is a specific case of the plaintiffs that they became the trustees/shebaits in terms of the original Deed which was subsequently ratified and affirmed by a Deed of Appointment of Trustee dated 20th November 2009.

The allegations, which runs into several pages of the plaint, proceed on the basis that an attempt is made to take away the administration and management of the said Ashram by the defendants which is per se illegal and they have no power to do so.

In the backdrop of the alleged assertion, an application for injunction was taken out which was moved for an ad interim order.

It appears that one of the defendants, who appeared at the time of moving the application for injunction, prayed for filing written objection to contest the same.

The trial Court basically rejects the prayer for ad interim order of injunction on the ground that there is no document forthcoming before the Court in relation to the alleged statement of cancellation of the Trusteeship by 2/3rd majority of the existing trustees on the ground of misconduct.

The said order is assailed before the appellate Court who reversed the said order and passed an order of injunction restraining Bishnudas Babaji, the petitioner no. 1 herein, from causing any disturbances and hindrance in peaceful running of the Ashram by the appellants/opposite parties till disposal of the suit.

It is manifest from the order, passed by the appellate Court, that despite liberty given to the respondents therein to file objection to the application for injunction, no written objection was filed. Moreover, the petitioner no. 1 did neither participate in the hearing of the appeal nor in the hearing of the application for temporary injunction.

Mr. Kashi Kanta Maitra, learned senior advocate appearing for the petitioners, at the very outset submits that the Court failed to take note of the earlier suit, i.e. Title Suit No. 325 of 2013 filed by the plaintiffs/opposite parties in the 3rd Court of Civil Judge (Junior Division), Sealdah on the self same cause of action wherein the prayer for ad interim order of injunction was refused.

It is strenuously submitted by Mr. Maitra that suppressing the said suit as well as the order refusing to pass an ad interim order of injunction, the subsequent suit is filed by the plaintiffs/opposite parties and, therefore, the Court should have declined to pass the order of injunction on such ground.

In support of his contention that suppression of fact is one of the relevant factors in refusing to pass an order of injunction, he relies upon the judgments of the Apex Court in the case of S.J.S. Business Enterprises (P) Ltd. Vs. State of Bihar and Others, , in the case of Mayar (H.K.) Ltd. and Others Vs. Owners and Parties, Vessel M.V. Fortune Express and Others, , and a Division Bench judgment rendered in the case of Andhra Bank Vs. Official Liquidator and Another, .

He strenuously submits that once an issue is heard and finally decided in an earlier proceedings, the party shall be estopped from raising the said issue in a later proceeding and places reliance on the judgments of the Supreme Court in the case of Bhanu Kumar Jain Vs. Archana Kumar and Another, and in the case of Ajay Mohan and Others Vs. H.N. Rai and Others, .

He audaciously submits that there is a distinction between withdrawal of a suit and a suit having disposed of on compromise, as held by the Supreme Court in the case of Mahalaxmi Co-operative Housing Society Ltd. and etc. Vs. Ashabhai Atmaram Patel (D) Th. L.Rs. and Others, .

Mr. Maitra, thus, concludes that injunction being discretionary and equitable relief, suppression of material facts is an important factor which may disentitle the person to have the order of injunction in his favour.

The opposite parties say that both the suits are based upon distinct cause of action though some of the cause of actions are over-lapping for which the suit cannot be said to be not maintainable. It is further submitted that the later suit was filed upon disclosure of certain or other subsequent facts and is more comprehensive in nature.

It is vehemently submitted that the earlier suit have been withdrawn and, therefore, the plea, that two suits based on identical cause of action cannot run simultaneously have perished and/or evaporated.

By taking a plea that in absence of any perversity in the pleadings and/or averments in the plaint or in the injunction application, the Court shall presume the statements, made therein, to be correct and there is no infirmity and/or illegality committed by the trial Court in passing an order of injunction, reliance is placed upon the judgment of the Supreme court delivered in the case of M. Venkataramana Hebbar (D) by L.Rs. Vs. M. Rajagopal Hebbar and Others, .

It is lastly submitted that the appellate Court, upon consideration of the facts as well as the law applicable in the context, have exercised its discretion in passing the order of injunction which should not be interfered with unless it is unreasonable, irrational, improbable and de hors the legal parameters.

Having heard the respective submissions made in this regard it is not in dispute that the plaintiffs/opposite parties filed the earlier Title Suit 325 of 2013 praying for a decree for declaration that the defendant, i.e. petitioner no. 1, has no right, title or interest as a trustee on the basis of the purported notice dated 16th November 2013. The second suit is basically on somehow similar cause of action, though appears to be too comprehensive, and if allowed would grant complete relief to the parties.

The appellate Court has proceeded to record existence of a prima facie case and the following observations can be aptly quoted as under:

I have gone through the copies of the Trust deed dated 28.04.1949, Appointment Deed dated 19.03.09. Those two documents prima facie show the constitution of Sri Sri Netai Gouranga Trust and appointment of the Plaintiff as one of the trustees by other four trustees of the said Trust. Xerox copy of general Power of Attorney dated 17.04.09 also reveals about the appointment of the Plaintiff as one of he constituted attorney for management of Pathbari Asram, Baranagar. The annexure C, D support the contention of the Appellant for his remaining present at Brindaban on 16.11.13.

The appellate Court did not pass an order of injunction against all the petitioners except the petitioner no. 1 who was found by the appellate Court to have interfered with the day to day discharge of the duties in relation with the administration and management of the Ashram.

There is no quarrel to the settled proposition of law that suppression of facts is one of the paramount factors in declining to pass an order of injunction which is equitable and discretionary in nature. The Apex Court in the case of S.J.S. Business Enterprises (P) Limited (supra) held that the suppression of material fact disqualifies a litigant from obtaining discretionary relief. In the said report, prior to filing of the writ petition a suit was filed before the Civil Court. Since there was no reflection of the fact relating to the institution of the suit, the High Court rejected the writ application on the ground of suppression of fact. Later on the writ petitioner therein withdrew the said suit before the matter was finally heard, the Apex Court held that since the suit has already been withdrawn and the writ petitioner elected to pursue its remedies in the writ petition, it does not preclude him for proceeding as such in the following words:

In this case, admittedly, the appellant has withdrawn the suit two weeks after the suit had been filed. In other words, the appellant elected to pursue its remedies only under Article 226. The pleadings were also complete before the High Court. No doubt, the interim order which was passed by the High Court was obtained when the suit was pending. But by the time the writ petition was heard the suit had already been withdrawn a year earlier. Although the appellant could not, on the High Court''s reasoning, take advantage of the interim order, it was not correct in rejecting the writ petition itself when the suit had admittedly been withdrawn, especially when the matter was ripe for hearing and all the facts necessary for determining the writ petition on merits were before the Court, and when the Court was not of the view that the writ petition was otherwise not maintainable.

In the case of Mayar (H.K.) Limited (supra) the Court reiterated the principle laid down in S.J.S. Business Enterprises (P) Limited that suppression of material facts certainly disentitles the litigant to have equitable relief in his favour.

In the case of Sukhendu Maity (supra), the Division Bench of this Court held that Court shall not only refuse to pass an order of injunction on the suppression of material fact but shall also take into consideration the conduct of the parties in the proceedings in following words:

To get the order of stay of a suit on the ground of abuse of process, the applicant must show that the plaintiff would not succeed but that he could not possibly succeed on the basis of the pleadings and in the circumstances of the case. In other words, the defendant would be required to show very strong case in his favour. The power would be exercised by the court if the defendant could show to the court that the action impugned is frivolous, vexatious or is taken simply to harass the defendant or where there is no cause of action in law or in equity. The power of the court restraining proceedings is to be exercised sparingly or only in exceptional cases. The stay of proceedings is a serious interruption in the right that a party has to proceed with the trial to get it to its legitimate end according to substantive merit of his case. The court to exercise the power to stay the proceedings has to keep in mind that the positive case has been made out by the defendant whereby the court can reach to the conclusion that proceedings, however, indicate an abuse of the process of court. The High Court has granted stay of proceedings as it found the plaintiffs guilty of suppression of jurisdictional clause of BOL and on the finding that the plaintiffs have no case on merits, and thus it would be abuse of process of the Court if the plaintiffs are permitted to go ahead with the trial in the Calcutta Court. We are not satisfied that the defendants have made out the case on any of the counts.

A line of distinction is to be drawn between suppression of facts and suppression of material facts. The facts which do not have nexus or germane to the cause of action, if not disclosed, does not disentitle a litigant to get an order of injunction provided a prima facie case is made out and balance of convenience and inconvenience and irreparable loss and injury lies in his favour. It would be a totally different thing when a fact, which is material and relevant in the context of the cause of action, pleaded in the suit having suppressed, the Court shall certainly deny the discretion to be exercised in refusing to pass an order of injunction.

Undisputedly, the petitioners, despite having been offered with opportunity to file written objection, chose not to file the same before the appellate Court nor they were represented when the appeal, as well as the application for temporary injunction, was taken up.

The appellate Court in categorical terms records the aforesaid facts and it is for the first time before the revisional Court the factum of filing of the earlier suit is brought by the petitioners. Before the revisional application can be disposed of finally, the plaintiffs/opposite parties withdrew the earlier suit and intended to pursue his remedy in the later suit. The later suit appears to be more comprehensive and shall determine the rights of the parties completely and effectively.

Before the Court of appeal below, there was no material produced by the petitioners, as has been produced before this Court, relating to institution of the earlier suit and, therefore, the appellate Court had no occasion to go into the intricate points raised before this Court by the petitioners. The fact remains that the earlier suit has been withdrawn and the suit which is surviving is the present suit in which an order of injunction is passed by the appellate Court.

The Apex Court in the case of M. Venkataramana Hebbar (supra) held that the doctrine of non-traverse has its applicability because of existence of Order 8 Rule 3 and Rule 5 of the Code of Civil Procedure. The averments made by the plaintiffs/opposite parties has not been controverted by the petitioners even after an opportunity to file objection was given by the appellate Court. The statement goes unchallenged.

The appellate Court, therefore, did not commit any illegality in proceeding on the basis of the statements made in the application for temporary injunction and after recording existence of the prima facie case, passed an order of injunction.

The second limb of argument advanced by Mr. Maitra, the learned senior advocate, is that the party chose to file a suit based on particular cause of action and later on files another suit on the self same cause of action, the principle of res judicata has its fullest applicability.

The principle of res judicata can be applied when an issue is directly and substantially an issue in an earlier suit, which has been decided finally, is directly and substantially an issue in the later proceedings.

I am not oblivion of the proposition of law that the principle of res judicata should not be restricted to apply between two proceedings only but equally applies at different stages of the same proceedings. The earlier suit was not decided finally and was pending when the later suit came to be filed. Withdrawal of the earlier suit, during pendency of the later suit, cannot put a fetter and/or stand as and by way of estoppels and the judgment, relied upon by Mr. Maitra, the learned advocate, on the principle of res judicata is too settled a proposition to be debated upon. Each judgment is to be read in the context it is decided. An additional or little difference in the fact may alter the decision diametrically. In substance, this Court did not find any infirmity in the order passed by the appellate Court except to the extent that the appellate Court has directed the operation of the order to continue till disposal of the suit.

The appellate Court was in seisin of the appeal filed against the order refusing to pass an ad interim order of injunction. An application for temporary injunction is still pending before the trial Court which has not been disposed of finally. There is a distinction between an ad interim order of injunction and an order of temporary injunction as in case of former it is to operate till disposal of an application for temporary injunction whereas in the case of later it is to continue till disposal of the suit.

The temporary injunction is passed in aid of the final relief. Since the fact which is sought to be brought for the first time before this Court was neither brought before the trial Court nor before the Court of appeal below, this Court modifies the order of the appellate Court to the extent that the order of injunction shall operate till disposal of the application for temporary injunction.

The trial Court is directed to give opportunity to the petitioners to file their written objection to the application for injunction and thereafter shall decide the application for temporary injunction on its merit.

It is needless to say that the findings of the trial Court, Court of appeal below or this Court are confined to the prayer for ad interim order of injunction which is different than the order of temporary injunction and, therefore, the trial Court shall not be swayed by the observations made in this regard.

The trial Court is, thus, requested to make all efforts to dispose of the application for temporary injunction as expeditiously as possible, preferably within four weeks from the date of communication of this order.

With these observations, the revisional application is disposed of.

There shall, however, be no order as to costs Urgent photostat certified copy be supplied to the parties, if applied for, on priority basis.