Manbasa Devi vs Calcutta Landing and Shipping Co. Ltd. and Others

Harish Tandon, J—A little drift invited the parties to address an important legal point as to whether the Appellate Court should grant the stay of the operation of the order after admission of an appeal which virtually tantamount to allowing an appeal itself.

Order 39 Rule 1 & 2 of the Code deals with the temporary injunction that may be granted by the Court in the attending facts and circumstances. Rule 3 of Order 39 which was subsequently amended in 1976 throws light on the guiding factors both at pre and post stage of interim injunction. Ordinarily the Court should not pass an order of injunction without notice to the other side as it would offend the principle of natural justice. By an amendment having brought in the Year 1976, Rule 3 of Order 39 faced with the see change conferring power upon the Court to pass an ex parte ad interim order of injunction subject, however, to recording of the reasons. The said power was brought in the statute book as the law makers thought that in a deserving cases an immediate and prompt protection and/or preservation of the property is needed.

Despite the amendments having brought in Order 39 Rule 3 of the Code, the Division Bench of this Court in case of Muktakesi Dawn and Others Vs. Haripada Mazumdar and Another, AIR 1988 Cal 25 : 91 CWN 1094 held that recording of reasons while passing the ex parte ad interim order of injunction is not that imperative and mandatory to render the order unsustainable. The aforesaid proposition was operating in the field for a quite number of years until the Supreme Court in case of D.R. Chawla & Ors. v. Municipal Corporation of Delhi reported in (1993) 3 SCC 162 took a different view and held that non-recording of reasons makes the order fundamentally wrong, illegal and the Court cannot shirk its responsibilities and duties in providing reasons at the time of passing the ex parte ad interim order. In a later decision of the Supreme Court rendered in case of Morgan Stanley Mutual Fund Vs. Kartick Das, (1994) 81 CompCas 318 : (1994) 3 JT 654 : (1994) 2 SCALE 1121 : (1994) 4 SCC 225 : (1994) 1 SCR 136 Supp , the said principles have been reiterated and restated. The aforesaid two judgments of the Supreme Court virtually overruled the ratio laid down in case of Muktakesi Dawn (supra) which is noticed in another Division Bench judgment of this Court in case of Supratik Ghosh and Another Vs. M/s. Pasari Housing Development Pvt. Ltd., (2000) 3 CALLT 97 . In Supratik Ghosh, the Division Bench explicitly held that the ex parte ad interim order, bereft of the reasons, is null and void and cannot be allowed to occupy the space in the legal book. The proposition of law as it stands today in view of the pronouncement made in D.R. Chawla (supra) is uniform that in absence of any reasons required to be recorded by the Trial Court before passing an ex parte ad interim order of injunction, the order is unsustainable and cannot be allowed to stand. The proposition of law as emerges is so settled to further deliberate upon.

The point which cropped up subsequently is whether the Appellate Court even after noticing that the order impugned before it does not contain the reasons while passing the ex parte ad interim order is required to be set aside even, when there is a convincing materials and pleadings in this regard. In Jitesh Pandey v. Smt. Urmilata Sinha & Ors. reported in 2000 (2) CHN 856, the Co-ordinate Bench held that the remedy of the defendant who is served with the show cause notice where the Court passed an ex parte ad interim order of injunction has three fold remedies firstly; the defendant can answer to the show cause in the form of an objection to the application for injunction secondly; he can file an application under Order 39 Rule 4 of the Code praying for vacation, variation and setting aside of the ex parte ad interim order of injunction on the ground of suppression of facts or otherwise and thirdly, he can file an appeal under Order 43 Rule 1(r) of the Code before the Appellate Court. It is further held that if the third remedy is exhausted the defendant has to accept the statements made in the injunction application as sacrosanct and then to demonstrate before the Appellate Court that in spite of the aforesaid facts, the circumstances does not warrant the passing of ex parte ad interim order of injunction. The subsequent observation of the Co-ordinate Bench did not find favour to a Division Bench dealing with the case of Bengal Club Limited Vs. Susanta Kumar Chowdhury, AIR 2003 Cal 96 : 107 CWN 663 . Though the later Division Bench concurs with the remedies available to the defendant indicated in Jitesh Pandey (supra) but took a dissenting view to other observation by which the Coordinate Bench restricted the defendants who challenged the ex parte ad interim order before the Appellate Court to accept the statement made in the application as sacrosanct. What really weighed to the Appellate Court was the provision contained under Order 43 Rule 2 of the Code of Civil Procedure which postulates that the appeal under Order 43 shall be controlled and guided by the provisions of Order 41 of the Code. The Division Bench held that the defendant can place certain materials which have an impact or bearing on the statements made in an application for injunction that may not justify in passing the ex parte ad interim order of injunction.

Mr. Roy Chowdhury, the learned Senior Advocate put much emphasis on the fact that the Muktakeshi has been subsequently held to be a bad in law in view of the pronouncement rendered in case of D.R. Chawla (supra), Supati Ghosh (supra) and The Bengal Club Ltd. (supra). In Muktakeshi (supra), the Division Bench decided two principles firstly; that recording of the reasons at the time of passing ex parte ad interim order of injunction is not mandatory and secondly; the defendant who challenges the ex parte ad interim order of injunction in appeal before the Appellate Court has to accept the statements made in the plaint to be correct and sacrosanct and thereafter, if he can satisfy that in spite of those facts, the Trial Court erred in passing an ex parte ad interim order of injunction, the Appellate Court shall interfere with such order.

The point which this Court is faced with is not whether the ex parte ad interim order is passed without recording of reasons or the Appellate Court should confine its scrutiny to the statements made in the plaint, injunction application and its annexure or the documents produced along with it and not the new facts disclosed by the defendant before the Appellate Court. The point hinges on whether the Appellate Court should have passed an order of stay of the operation of the ex parte ad interim order of injunction at the initial stage of the appeal rendering the appeal merely a paper appeal. Neither in Bengal Club Ltd. nor in D.R. Chawla & Morgan Stanley, the Court had any occasion to deal with such points. In Bengal Club Ltd., a dissent was made on the proposition that the Appellate Court against an ex parte ad interim order of injunction cannot confine itself to the statements made by the plaintiff but can look into the important and relevant facts disclosed by the defendant in the appeal if an ex parte ad interim order of injunction is passed on gross suppression of the facts.

In none of these judgments, the point, which emanates from the respective submissions of the Counsels as indicated in herein below, was a matter of consideration. The point, which requires an answer in this case, is whether the Appellate Court shall pass the order of stay of the operation of the impugned order simultaneously with the admission of an appeal. First of such judgment brought before this Court is rendered in case of Sisir Kumar Arnab & Ors. v. Nitibrata Ghosh Dastider & Ors. reported in 1983 (2) CLJ 72. In the said judgment, an appeal was filed against injunction under Order 43 Rule 1(r) of the Code before the Court of appeal below and order of stay was granted at the time of admission of an appeal. It is categorically held that if the Appellate Court passes an order of stay, it tantamounts to allowing an appeal itself and, therefore, the determination in the appeal becomes otiose.

The reference can further be made to another bench decision of this Court in case of In Re: Gautam Kumar Hada, (1994) 1 ILR (Cal) 72 . On the proposition that the Appellate Court should not pass an ad interim order resulting practically allowing the appeal itself at the initial stage but should have taken utmost efforts to dispose of the appeal expeditiously. It is relevant to quote Paragraph 11 which is reproduced below:

"11. Accordingly, I hold that the order under challenge, passed by the lower appellate Court, suffers from material irregularity in the sense, that the lower appellate Court, in passing the said order, has virtually decided the appeal itself, without hearing the other side thus acting illegally in the proper exercise of jurisdiction vested in it by law, and as such, relying on the principle of law as decided in the case of Muktakeshi Dawn, I set aside the said order."

The subsequent Co-ordinate Bench in case of Mobassor Hossain and Others Vs. Manik Chandra Pal and Others, AIR 2006 Cal 195 : (2005) 4 CHN 499 held:

"2. In my view, the learned Judge in the lower appellate Court was not justified in granting stay of operation of the order granting temporary order of injunction passed by the learned trial Judge. In a miscellaneous appeal arising out of order granting temporary injunction, all efforts should be made by the learned Judge in the lower appellate Court to dispose of such appeal, but, normally, no stay of operation of the order granting temporary injunction should be granted resulting pactically allowing the appeal itself at the initial stage without hearing the other side."

The Division Bench Judgement in case of Intime Spectrum Registry Ltd. Vs. MCS Ltd., (2007) 2 CHN 109 is not directly pointer to an issue as indicated above but certain observations made therein sufficiently conveys that once an ex parte order of injunction is passed recording reasons, it would be proper for the defendant to contest the said application for temporary injunction before the Trial Court. The questions still begging an answer whether in all conceivable situations, the Appellate Court should not pass an order of stay or it depends upon the different fact situation. It is not a euclid''s theorem or a straight jacket formula to the aforesaid proposition for that an unscrupulous litigant procuring the ad interim order of injunction would be allowed to continue to reap the benefit of a palpably illegal order until the appeal is finally decided. The order per se illegal and shocking to the conscience of the Court, cannot be allowed to remain operative till the disposal of an appeal as the Court cannot pass an order of stay of its operation because it would amount to allowing an appeal itself. The order which is passed by recording of reasons and may not found ultimately to be legally sustainable on the disclosure of the facts by the defendant for the first time before the Appellate Court, it should not normally be stayed without affording an opportunity to the plaintiff to traverse and/or controvert the same. If the Court passes the order of stay on the basis of the averments made by the defendant in an application for stay before the Appellate Court, it would amount to given premium to the appellant and would act harshly on the plaintiff who succeeded in obtaining an ex parte ad interim order of injunction before the Trial Court.

The principles, which could be culled out from the above discussions, are:

"(i) After the amendment having brought in Order 39 Rule 3 of the Code, it is mandatory to record the reasons before passing the ex parte ad interim order of injunction.

(ii) The aggrieved person including the defendant have three fold remedies firstly; he can answer to a show cause and invite the Court to dispose of the temporary injunction application on merit secondly; he can file an application under Order 39 Rule 4 of the Code praying for vacation, variation and setting aside of the ex parte order on the ground of suppression of material facts or on other substantial grounds and thirdly; he can challenge the ex parte ad interim order of injunction before the Appellate Court under Order 43 Rule 1(r) of the Code.

(iii) Ordinarily the Appellate Court should restrict itself to the pleading of the plaintiffs but if it is found that there is a gross suppression of the material fact, no fetter could be put on the Appellate Court to ignore those facts."

The powers of the Appellate Court to grant stay is not a centre of debate as the said power can be traced under Order 41 Rule 5 of the Code of Civil Procedure. It is no longer res integra that if a proceeding be it an appeal or other wise is initiated before the Court guided and regulated by a procedural law, the said proceeding would likewise be regulated by such procedural law. Order 41 which is a self-contained code covers all appeals and does not make any differentiation amongst them. The appeals under Order 43 Rule 1 of the Code have also been expressly guided and regulated by the provision of Order 41 by virtue of Order 43 Rule 2 of the Code. Order 41 Rule 5 does not really restrict its applicability to an appeals against the final determination or decree but can also be extended to an appeals against an interlocutory orders under Section 104 and Order 43 Rule 1 of the Code of Civil Procedure. The order of injunction is passed in aid of the final relief and the stay is granted by the Appellate Court to protect the respective rights of the parties if necessary by putting certain conditions. If the nature of the order claimed in the appeal virtually allows the appeal itself, the Appellate Court ordinarily should not pass such order except in exceptional circumstances or in extraordinary cases. Once the rights claimed by both the parties on the strength of the documents are required to be adjudicated on the interpretation thereof, the Appellate Court should seldom stay the operation of the ex parte ad interim order of injunction passed by the Trial Court, at the initial stage of the appeal but should expedite the appeal and decide the same finally. The support can be lend in this regard to a recent decision of the Supreme Court in case of Meena Chaudhary Vs. Commissioner of Delhi Police wherein it is held:

"1. By these applications, the appellant prays for the following reliefs:

"(a) pass an urgent and interim order for a maintenance and a residence for the appellant in her suitable amount of matrimonial home;

(b) pass an order to secure the compliance by Respondent 4 by confiscating his passport and his current CPL (Commercial Pilot Licence);

(c) pass an order for sentence against Respondent 4 for contempt of this Hon''ble Court;"

We have heard the appellant, who appears in person, as also the learned counsel appearing for the contesting Respondent 4.

In our view, the present applications are utterly misconceived for more than one reason. Firstly, Prayer (a), which is sought as an interim relief, is the core issue to be determined in the main appeals, which already stands admitted. Therefore, grant of this relief at this juncture would render the main appeals as redundant. Secondly, Prayers (b) and (c) above, both these issues do not arise for consideration in the main appeals. The scope of an interim application cannot be greater in scope than the main appeal. Additionally, over and above the afore-extracted reliefs, the appellant has also prayed for certain other directions in her rejoinder-affidavit. Ex facie, the said prayers are also beyond the scope of the main appeals and, therefore, cannot be granted. Accordingly, both the applications, being bereft of any merit, are dismissed."

In view of the above proposition, let me examine whether the facts and circumstances of the instant case requires the stay of the ex parte ad interim order of injunction pending appeal.

The plaintiff/petitioner filed Title Suit No. 543 of 2015 praying for a decree for declaration of a title in respect of the suit premises described in Schedule ''A'' to the plaint and further declaration that the defendant No. 1 has no manner of right, title and interest to raise any construction at the suit premises on the basis of the purported sanctioned plan described in Schedule ''C'' to the plaint. Another declaration is sought against the Howrah Municipal Corporation and its constituents that they have no lawful right or authority to effect the mutation in favour of the defendant No. 1 by demarcating the holding and have no authority to sanction the plan. Though other declaration and permanent injunction are sought but basically this is a suit for declaration of title and protection of such right from being infringed by the defendants.

The plaintiff traced the title on the strength of a registered deed of sale dated 27.03.1955 from Rao Birendra Kumar Das Shapuri and obtained possession partly in Khas and partly through defendant No. 1 as lessee governed under the Transfer of Property Act. It is further stated that after the acquisition of the said property by the plaintiff/petitioner, the defendant No. 1/opposite party No. 1 paid rent in respect of the demise premises but subsequently stopped the same which constrained the petitioner to file Suit No. 3707 of 1984 for recovery of arrear rent. The said suit stood decreed. The opposite party No. 1 paid arrear rent in terms of the said decree to the plaintiff/petitioner. It is further averred in the plaint that after subsequent default in payment of rent, a suit for recovery of possession was filed which stood dismissed for default on 20th December, 1994 as the husband of the petitioner who was looking after the affairs as constituted attorney have seriously fallen ill and subsequently succumbed to such illness in the year 1995. The cause of action pleaded in the plaint relates to the alleged action of the defendant No. 1 in mutating the name in respect of the demised premises described in Schedule ''A'' to the plaint which comprised of 5 Bighas of land and demarcating the said land by allotting a separate premises number. The aforesaid action is stated to have been done by practicing fraud upon the petitioner and the reliefs claimed therein are based thereupon.

In the backdrop of the aforesaid facts, an application for injunction was moved before the Trial Court for an ad interim order and the Trial Court after recording the facts constituting a prima facie case and its reasons on balance of convenience and inconvenience and irreparable loss of injury passed an ad interim order of injunction ex parte directing the defendants from giving effect to the mutation as well as the sanctioned plan in respect of Schedule ''A'' property and also from exercising their activities committing waste, damage and also from changing and nature of the character of the suit premises till 6th May, 2015.

The defendant No. 1 challenged the said ad interim order of injunction before the learned District Judge, Howrah in Miscellaneous Case No. 64 of 2015 by filing an appeal on 17th April, 2015. By Order No. 1 of the said date, the learned District Judge fixed the appeal for admission on 22nd April, 2015. On 18th April, 2015, the opposite party No. 1 filed an application for stay of the operation of the ex parte ad interim order of injunction which was directed to be kept on record and to be taken up when moved.

On 22nd April, 2015, the appeal is mechanically admitted and order for bringing the Lower Court record was also passed and the factum of lodging the caveat by the plaintiff/petitioner was also recorded therein. On the said date, an application seeking dispensation to issue the notice of appeal upon the other defendants was filed which was directed to be heard along with an application for stay on 28.04.2015. On the returnable date, the plaintiff/opposite party files written objection to an application for stay as well as an application seeking dispensation of service of notice of appeal upon the other defendants. The aforesaid two applications were taken up for hearing and the next date i.e. 2nd February, 2015 was fixed for passing order. The record would reveal that on the date of the hearing of the aforesaid applications, the Lower Court record was not brought before the learned District Judge, Howrah and the matter was adjourned to 2nd February, 2015.

By the impugned order No. 6 dated 4th May, 2015, the Appellate Court stayed the operation of the order until further order and fixed the date for hearing of an appeal on 10th June, 2015. In an application for stay filed before the learned District Judge, Howrah, the opposite party No. 1 asserts that by virtue of a registered indenture dated 28th October, 1919, it becomes an exclusive owner and is occupying 4 Bighas and 5 Bighas of land described as Plot 1 and Plot 2 in the first Schedule of the said indenture and duly exercised such right by mutating their name in the concerned settlement record. It is further stated that on the strength of the said registered indenture, G+8 storied building had already been constructed in the holding No. 20, Salkia School Road, P.S.-Golabari, District- Howrah, which is known as "Swapnalok". In Paragraph 5 thereof, the opposite party No. 1 disclosed the facts relating to sanction of the plan and the payment of sanction fees and advancing the loan by the Axis Bank to the tune of 4 Crores. In Paragraph 6 thereof, the opposite party No. 1 states that a suit for eviction filed by the plaintiff/petitioner ended in dismissal for default on 20th December, 1994 after it was disclosed in the written statement that the opposite party No. 1 is a owner of the entire premises on the basis of registered indenture dated 28th October, 1919.

From the respective stands of the parties, there is no hesitation to say that both the parties founded their claim on the strength of their respective deeds and therefore, the Court has to consider and interpret the relevant terms thereof. The learned District Judge, Howrah noticed both the deeds and preferred to rely upon the deed of the opposite party No. 1 as there is a clarity in the devolution of the interest of the respective owners of the said premises.

This Court has an occasion to peruse both the deeds relied upon by the respective parties. The indenture dated 28th October, 1919 executed by and between the opposite party No. 1 and one Girdhari Lal Serowgi depicts the transfer of two plots wherein the plot one relates to an ownership right of the vendor being conveyed to the opposite party No. 1 and the Plot No. 2 which comprised of 5 Bighas of land held by the vendor as a lessee is transferred to the opposite party No. 1.

The instant dispute does not relate to plot No. 1 of the said indenture but is in respect of plot No. 2 which was lease hold right to be enjoyed upon payment of the lease rent. The deed executed in the year 1955 in favour of the plaintiff/petitioner clearly reveals the incident of ownership in respect of the said 5 Bighas of land and being in possession of the lessee i.e. the opposite party No. 1.

The learned District Judge, Howrah failed to meticulously read the recitals of the respective deeds and have abruptly jumped to the conclusion that the registered indenture dated 28th October, 1919 contains a clear recitals which is absent in the deed of the plaintiff/opposite party. This Court does not find any ambiguity in the recitals of the respective deeds. Even on a careful reading of the recitals of both the deeds, a layman can arrive at the conclusion with certainty that the Plot 2 of the deed of indenture dated 28th October, 1919 was a lease hold right and, therefore, the title to the said property was never conveyed by the vendor therein. The deed of sale executed in favour of the plaintiff/petitioner have clearly spelt out the incident of ownership and the possession of a lessee (opposite party No. 1) in respect of the demised premises. The observation of the learned District Judge, Howrah on the recitals of both the deeds is not based on a meaningful reading thereof and is factually wrong. The learned District Judge, Howrah either overlooked the relevant portions of the deeds or there may be something behind the curtain inviting such observations to be made in the impugned order.

There is another facts which the learned District Judge, Howrah did not give credence to it. Admittedly a suit for recovery of the arrears rent filed by the plaintiff/petitioner against the opposite party No. 1 stood decreed. The legal inferences, which could be drawn from the aforesaid fact, is that the status of the opposite party No. 1 was declared to be a lessee liable to pay the rent to the plaintiff/petitioner in respect of the demised premises. The documents annexed to injunction application pertain to the Year 1985-1986 evincing the payment of the arrear rent by the opposite party No. 1 to the plaintiffs/petitioners in terms of the decree and otherwise as well. If the jural relationship of lesser and lessee is admitted and evident from the relevant record which has not been denied and disputed before the Court, the learned District Judge, Howrah cannot ignore the said fact and banked upon the misreading of the recitals in the deed of 1919 and jumped to the conclusion that the opposite party No. 1 have acquired the right, title and interest in respect of the suit premises. The application for stay is salient on the aforesaid facts.

There is no doubt that the rival claims of the parties based on the documents and other materials are required to be adjudicated after full-fledged trial. It is certainly not a case where the plaintiff have suppressed the material and vital facts which if disclosed would disentitle him to get an ad interim order of injunction ex parte.

A Special Officer was appointed by this Court wherefrom it appears that the opposite party No. 1 is not making immediate construction on the premises though a G+8 residential building have been found constructed. The Special Officer further found several godowns, marriage banquet halls on the extreme eastern side of the holding No. 20/2, Salkia School Road, Howrah and the construction of two columns therein. From the report of the Special Officer as well as the statements made in the application for stay, the opposite party No. 1 have every intention to make construction in the suit premises as the plan has already been sanctioned by the Howrah Municipal Corporation.

This Court, therefore, finds that the learned District Judge, Howrah have committed grave error in staying the operation of the ex parte ad interim order of injunction holding that the opposite party No. 1 have acquired a better right, title and interest in respect of the suit premises than the plaintiff/petitioner.

The order impugned is set aside.

The opposite parties, their men, agents and servants, are restrained from making any constructions over the suit premises on the basis of the purported sanctioned plan or from claiming any right of ownership on the strength of the mutation having effected in the Municipal record and also from preventing the plaintiff/petitioner or her constituted attorney or their family member to enter into the suit premises during the reasonable hours and the defendants are further restrained from changing and nature of the character of the suit premises till the disposal of the Miscellaneous Appeal No. 64 of 2015.

Since the plaintiff/opposite party has already filed an objection to the application for injunction and the Lower Court record has arrived before the Court of appeal below, there is no impediment to decide the appeal itself.

This Court directs the learned District Judge, Howrah to fix up a date for hearing of the said Miscellaneous Appeal No. 64 of 2015 in presence of both the parties and shall dispose of the same within three weeks from the date of the communication of this order in accordance with law.

It is, however, made clear that the observations recorded herein above is restricted to an application for stay and the learned District Judge, Howrah shall decide the appeal independently without being swayed by the observations made herein above.

The revisional application succeeds.

However, there shall be no order as to costs.