Md. Saifullah Wakf Estate and Another vs Sara Devi Agarwalla alias Madhania

J.N. Sarma, J.—Injunction is not a matter of charity. A court cannot grant an injunction as and when an application before it is filed. Granting of an injunction must be in exercise of the judicial discretion of the court and in granting an injunction a Court is duty bound to find out whether the 3 (three) ingredients and golden principles for grant of injunction are present or not. These three principles are:

i) The existence of a Prima-facie case;

ii) Balance of convenience and

iii) Irreparable loss and injury.

It must exist as a chain. If there is one missing link in the chain then the injunction can be granted. Even in granting an ex-parte order of injunctionv a court is duty bound to give reasons and on this point the law has been settled by a series of decisions of the Courts. I shall only rely on a Full Bench decision reported in (1984) 1 GLR 133 Akmal Ali and Ors. v. The State of Assam and Ors. where it has been held as follows:

Any controversy as to whether reasons need be recorded while tasking an ex-parte order of ad-interim injunction has been removed by the introduction of Rule 3, which provides that the Court after recording reasons for its satisfaction that the object of granting injunction would be defeated by delay etc, may pass an order of ex-parte ad-interim injunction under Rules 1 and 2 of Order 39. It does not stand to scrutiny that an ad-interim ex-parte order devoid of reasons, rendered in violation of the well-known principles that a judicial order must contain reasons, and in violation of the mandatory provision of Rule 3 can escape the jurisdiction of the appellate Court, but the same order can be revised by the very same court. Judicial order must be reasoned order. After the amendment, it must contain reason. The trial Court must apply its mind to the materials placed before it, and, on being satisfied about the requirements of Order 39 Rules 1 and 2 make the Order. Further, Rule 3 enjoins "reasons to be recorded". Under these circumstances when the trial court is required by law to state reasons, but does not furnish them in its order, it violates the provisions of ''the Code.

The next case on this is (1989) 2 GLR 372 Smti Aparajita Mukherjee and Ors. v. Anil Kumar Mukherjee and Anr. where the Division Bench of this Court held as follows in paragraphs 5 and 6:

Paragraphs:

Injunction by the Courts is not to be a matter of course. Although an ex-parte injunction operates for a short period, that is, until the other side appears and contests the matter, if the exparte injunction is vacated afterwards, by that time irreparable damage might have been caused. There is a great risk of creating injustice while granting or refusing injunction at the inter-locutory stage. Therefore, at the stage of granting an injunction, Court should not act casually, i.e., the Court should pass an order only after considering all the facts and circumstances of the case, and while passing the order the Court is required to record reasons which weighed with the mind of the Court. More so when there is statutory provisions of appeal or revision to higher Court in order to enable the superior Court or the appellate Court to know or to be apprised of the reasons which impelled the Court to know or to pass the order in quest ion. If the reason is recorded, it enables both the Superior Court and the parties concerned to know the mind of the Court as well as the reasons for its findings and conclusions.

Paragraph 6:

A reading of the proviso to R.3 suggests that only in the exceptional cases when the Court finds very good reason it would be justified in passing an ad interim ex-parte order of a grave nature, and the Courts shall record reasons for its opinion that the object of granting the injunction would be defeated by delay.

Both these revision and appeal have been filed against the order dated 16.6.94 passed in Misc. Appeal No. 5/94 filed in the Court of Learned Asstt. District Judge Tinsukia which was later on withdrawn to the file of the learned District judge of Tinsukia by exercising his Suo Moto power u/s 24 of the CPC but no notice was given to the present Petitioner/Appellant when this appeal was withdrawn from the court of Learned A.D.J. Tinsuku to the file of the Learned District Judge. Tinsukia by him. The order of Injunction is at page 74, Annexure 14 which is quoted below:

This appeal has been transferred to this Court Vide this Court''s order dated 16.6.94 in Misc. (j) Case No. 102/94 on the grounds stated in the said order. Misc. Appeal No. 5 of 1994 is admitted.

The Appellant Smti. Saradevi Agarwalla has prayed for granting ad-interim temporary injunction as prayed for in Misc. (J) Case No. 31 of 1994. It appears that there is a caveat case No. 8/94 in respect of this matter. Learned Advocate Sri Bimal Kumar Kejriwal appealing for the Appellant/Petitioner submits that in the caveat case, the name of the present Appellant Smti. Saradevi Agarwalla has not been shown as one of the Opp. Party. He points out that the Caveat docs not affect the Appellant. He further draws the attention of the Court that the notice u/s 148A (2) CPC cannot be served on the Appellant as required. In such a situation, if the interim relief is not granted the same may be delayed for an indefinite period, as the matter can he heard only after the Appellant/Petitioner is made one of the Opp. Party in the Caveat Case and a notice is served on her. There is substance in the submission of the learned Advocate.

The Caveator in Caveat Case No. 8/94 may take steps for amendment of this petition to include the Appellant as one of the Opp. Party in order to conform to the requirement of law. In the mean time, the status quo may be maintained. In other words, the execution of the Title Execution Case No. 21/81 of the Munsiff No. 1 of Dibrugarh, which is the subject matter of Misc. (J) Case No. 31/94 shall remain stayed until further orders. Fix 21.7.94 for steps by the Caveator as stated above and for service of notice of appeal on the Respondents.

As the learned Asstt. District Judge is likely to be available by Monday next, the appeal is again transferred back to the said court for disposal.

A bare perusal of this order will show that though the Learned District Judge to do justice to the parties withdrew the case to his file he did not adhere to the basic/minimum requirement of passing an order of injunction as laid down by the Full Bench as well as by the Division Bench of this Court. There is absolutely no reason in the impugned order as to why there was the necessity to pass an order of injunction for the maintenance of status quo and for stay of the Title Execution Case No. 21/81 of the Munsiff No. 1 of Dibrugarh over which he did not exercise even territorial jurisdiction and passed the impugned order to do the justice to the parties. The District Judge after passing the order of injunction transferred the matter to the Learned Asstt. District Judge from its file as if he withdrew the case only to pass the order of injunction in favour of the Appellant. If he is so conscious to do justice between the parties by withdrawing the appeal, he could also dispose of the matter instead of transferring it to the File of Asstt. District Judge. Further, it is settled law that an appeal or a suit cannot be withdrawn Suo Moto by the District Judge to his file without some reason behind it. The order of transfer must show that he applied his mind regarding the necessity of transferring the case but in this case the only ground on which the appeal was transferred was as follows:

Seen the prayer by Smti. Sara Devi Agarwal u/s 24 CPC Call for the records in this petition. The case shall stand transferred to this Court for the disposal of the urgent matter referred to in the petition.

It is settled that u/s 24 CPC a case can be transferred by the District Judge only when the order on the face of it shows that notice to the either side is given alongwith some reason regarding the necessity of transfer. This was not done in the instant case.

Be that as it may, the facts of this case will show that the Learned District Judge was absolutely callous and cavalier in passing the impugned order for the maintenance of the Status Quo and injunction regarding the execution as the facts of this case is horrid one. It was a suit for ejectment from house under the Assam Urban Areas Rent Control Act by the present Petitioner/Appellant before this Court. That suit was decreed by the Trial Court. There was a First Appeal that was dismissed. There was a Civil Revision before this Court that was dismissed and thereafter, the matter went to the Supreme Court and the Supreme Court on 22.7.83 passed the following Order:

Upon hearing counsel, the Court dismissed the SLP but directed that the order of eviction shall not be executed on or before 31.12.1984 on condition that the Petitioner files an undertaking in this Court within two months from to day to he following effects:

That the Petitioner will handover vacant and peaceful possession of the suit premises to the Respondent landlord on or before 31.12.1984.

That the Petitioner will pay to Respondent landlord arrears of rent, if any, within one month from to-day.

That the Petitioner will pay to Respondent landlord future compensation for use and occupation of the suit premises month by month before the 10th of every month.

That the Petitioner will not induct any other person in the suit premises.

The Court further directed that in default of compliance with any one or more of these conditions or if the undertaking is not filed as required within the stipulated time the decree shall become executable forthwith.

But thereafter also the possession was not handed over as directed by the Supreme Court on or before 31.12.84 and the judgment debtor continued with round of litigations before the executing court.

Another Title suit was filed challenging the legality and validity of the decree and injunction was obtained from the Trial court to frustrate the decree. This suit which was filed in the year 1984 was dismissed for default on 11.12.85 and thereafter an application was filed for restoration of the suit, the said application for restoration was also dismissed for default on 20.6.89. Thereafter another application was filed for restoration of the Misc. Case. On the date fixed for hearing an application was filed for adjournment on ground that one of the brothers are suffering from heart trouble and other two brothers are busy in attending him. By order dated 9.11.89, the Asstt. District Judge dismissed the application for restoration of this Misc. Case. There was Revision being Revision No. 480/89 before this Court and this Court by judgment dated 18.5.94 dismissed the revision and directed the executing court to execute the decree i.e. Title Execution No. 21/81 pending in the Court of Munsiff No. 1. Dibrugarh immediately within a period of one month from the date of receipt of the record without entertaining any objection u/s 47 of the CPC in a casual manner to stall the execution.

Earlier suit which ended finally by the order of this Court in Civil Revn. No. 480/89 was filed by one Shri Binod Agarwal as the Karta of the joint family, claiming himself to be the brother and son of the Shetram Agarwalla, the original judgment debtor.

Thereafter, this round of litigation started and here the person is the wife of the brother of the judgment debtor and her plaint is at Page 39 to the Revn. Application, She filed the suit for declaration and injunction. In the plaint in paragraph 11 it is stated that she came to know of the decree only on 27.5.94 and did not know of the decree earlier though she claims that she used to live in the same house alongwith the other brothers. The decree is challenged on the ground that it was obtained fraudulently and concealing the facts and making misrepresentation but there are no particulars of fraud or misrepresentation as required by law no particulars have been furnished. Alongwith the plaint an application was filed under Order 39 Rule 1 and 2 read with Section 151 of the CPC for grant of injunction to retrain the decree holders from executing proceeding with Title Execution Case No. 21/81. The Learned Munsiff did not pass any order of injunction but ordered for issue of notice on the Opp. Parties to show cause as to why the injunction as prayed for should not be issued/granted. As against this order of the Learned Munsiff, an appeal being Misc. Appeal No. 5/94 was filed before the Ld. A.D.J. No. 1 at Tinsukia. Alongwith the appeal another application was filed under order 39 Rule 1 and 2 and Section 151 to grant the injunction which was not granted by the Learned Munsiff and it is this appeal alongwith the application for injunction which was withdrawn by the Learned District Judge to his file and passed the impugned order.

I have heard Sari D.N. Choudhury, Learned Advocate for the Petitioner/Appellant and Shri A.K. Phukan, Learned Advocate for the Respondents/Opp. Parties.

Shri Choudhury submits that there was a caveat before the Learned Asstt. District Judge and the Ld. District Judge also found he caveat but that caveat was not considered by the Learned District Judge and he passed the order directing the caveator in the Caveat Case No. 8/94 to take steps for amendment of the petition to include the Appellant as one of the Opp. parties in order to conform to the requirement of law and thereafter he passed the order for maintenance of status quo as well as for stay of the execution of the decree. The law on the point of caveat is settled by a decision of the Apex (sic) Court reported in Contemporary Target Pvt. Ltd. and Others Vs. M.B. Enterprises and Others, where this Court decided to interfere with the order of injunction under Article. 227 of the Constitution of India on the ground that inspite of lodging a caveat an order of injunction was passed without issuing notice to the caveator. In paragraph 19 and 20 of the judgment, this Court pointed out that when a caveat is filed and the order is passed without notice to the caveator or without hearing the caveator the order is without jurisdiction and it violates the basic principles of law and fair play and when it is brought to the notice of a higher court it should be interfered with. this Court further pointed out that in such a case the existence of alternative remedy shall be no bar for the court to interfere in such a matter as the court exists to do justice between the parties and not throw away the justice or to give wrong order on the basis of technicality involved in that matter.

This being the position, this order of the Learned District Judge which was passed is absolutely without authority of law and the same is liable to be set aside and quashed. This order of injunction as indicated earlier also suffers from another infirmity. The order is devoid by any reason whatsoever and on that ground also this order of injunction is liable to be quashed.

Shri Choudhury also places reliance in T. Arivandandam Vs. T.V. Satyapal and Another, where the Supreme Court was also deciding almost the same kind of the matter except the only difference being that there was also an allegation against the Judge of the High Court and the Supreme Court has pointed out as follows:

Paragraph 5:

We have not the slightest hesitation in condemning the Petitioner for the gross abuse of the process of the court repeatedly and unrepentently resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsiff''s Court, Bangalore is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsiff must remember that if on a meaningful - not formal - reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right, to sue, he should exercise his power under Order VII, Rule 11, CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order X, CPC An activist Judge is the answer to irresponsible law suits. The trial Courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal Code is also resourceful enough to meet such men, (Cr. XI) and must be triggered against them. In this case, the learned Judge to his cost realised what George Bernard Shaw remarked on the assassination of Mahatma Gandhi:

It is dangerous to be too good.

Paragraph 6:

The trial court in this case will remind itself of Section 35-A, CPC and take deterrent action if it is satisfied that the litigation was inspired by vexatious motives and altogether groundless. In any view, that suit has no survival value and should be disposed of forthwith after giving an immediate hearing to the parties concerned.

Paragraph 7:

We more than regret the circumstances that the party concerned has been able to prevail upon one lawyer or the other to present to the Court a case which was disingenuous or worse. It may be a valuable contribution to the cause of justice if counsel screen wholly fraudulent and frivolous litigation refusing to be beguiled by dubious clients. And remembering that an advocate is an officer of justice he owes it to society not to collaborate in shady actions. The Bar Council of India, we hope will activate this obligation, We are constrained to make these observations and hope that the co-operation of the Bar will be readily forthcoming to the Bench for spending judicial time on worth while disputes and avoiding the distraction of sham litigation such as the one we are disposing of. Another moral of this unrighteous chain litigation is the gullible grant of ex parte orders tempts gamblers in litigation into easy courts. A judge who succumbs to ex parte pressure in unmerited cases helps devalue the judicial process.

In AIR 1978 Gau 56 Tazmul Ali and Ors. v. Md. Ulairaja where the Full Bench of this Court consisting of 5 Judges held that a suit is maintainable to challenge the legality and validy of the decree obtained by fraud and in such a suit an injunction can be granted but the Court interalia has pointed out as follows:

i) It is true that the existence of a decree is a very important circumstance against the Plaintiff and it is more onerous for the Plaintiff to establish a prima facie case where there is a decree in existence than any other cases.

ii) If the court finds that the decree was a lawful and existing decree, in my view, the Court cannot and should not issue any injunction against the decree holder, but when grave allegations are made, such as fraud and collusion and the Court finds that an affidavit in support of the allegations are prima facie sustainable or at least should go for a trial, I am of the opinion that there cannot be any bar to exercise the jurisdiction of the Court under Order 39 against such a decree-holder.

iii) Now, it is necessary to bear in mind what is meant, and what must be meant, by fraud, when it is said that you may impeach a decree, signed and enrolled, on the ground of fraud. The principle on which a decree may be thus impeached is expressed in the case which is generally referred to on his subject. The Duches of Kingston''s case where the judges, being consulted by the House of Lords, replied to one of the questions ''Fraud is an extrinsic collateral act, which vitiates the most solemn proceeding of Courts of justice. Lord Cook says, it avoids all judicial acts, ecclesiastical or temporal. The fraud mere spoken of must clearly, as it seems to me, be actual, fraud, such that there is on the part of the person chargeable with it the malus animus, the mala mens, putting itself in motion and acting in order to take an undue advantage of other person for the purpose of actually and knowingly defrauding him.

iv) It''s true, where the application is to restrain the exercise of an alleged right, the Plaintiff should show that there are substantial grounds for doubting the existence of the right. It requires a very strong case indeed to induce the Court to interfere with an admitted right upon an alleged equity. The Plaintiff must also be able to show that an injunction until the hearing is necessary to protect him from irreparable injury.

This being the settled position of law, I have examined the plaint and the application for injunction filed in this particular case. The plaint has not described the fraud and collusion. The dale of death of the husband of the Plaintiff is not mentioned in the plaint. The amount of the rent of the suit premises has not been mentioned in the plaint. The decree is of 1983 and it is sought to be challenged in 1994. So, for all these reasons I hold that the Plaintiff has not been able to make out a prima facie case for grant of injunction. It is needless to say mat the balance of convenience and irreparable loss and injury are in favour of the Defendant/decree holder in the suit.

In that view of the matter, no case for injunction has been made out in the suit so the prayer for injunction stands rejected and this matter shall not be further agitated before the Trial Court.

I have looked to the plaint of the present case and found that it is nothing but an almost reproduction of the earlier plaint which was dismissed for default and where injunction was refused but in this case the litigant was too lucky as he has got the impugned order of the Learned District Judge and the decree of a suit filed in 1970 has been stalled which reminds the again the data of the privy council in india, it is easy to obtain a decree but difficult to reap the fruit of it.

Shri Phukan appearing for the Respondents fairly concedes that the order of the Learned District Judge may not be proper and just but he submits that the appeal even now is pending before the Learned A.D.J. and the A.D.J. may be directed to consider the prayer for granting the injunction by considering the entire materials on record. If this would have been the case of general nature, I would have granted the just prayer of Shri Phukan but in the facts and circumstances of this case I am not absolutely inclined to grant this prayer of Shri Phukan as I have indicated earlier this case as pointed out in 1977 (4) SCC (Supra) shows the horrendous enterprise of the Petitioner. The story of the long legal proceeding shows how a person have availed the mercy of the court and can make merely a mockery of the decree of the court and go on violating the undertaking given to the Apex Court.

Accordingly, this appeal is allowed. The order of the Learned District Judge shall stand quashed. The prayer for injunction made before the Learned Asstt. District Judge also stand rejected. The learned A.D.J. Tinsukia shall not call for the record of the Title Execution and/or the other connected proceeding for the disposal of the appeal. The Executing court shall proceed with the execution of the decree immediately. The Learned Asstt. District Judge, Tinsukia may dispose of the appeal in accordance with the law and observation made above. The Trial Court shall dispose of the suit in accordance with the decision in T. Arivandandam Vs. T.V. Satyapal and Another,

The first question which the court will take is the question of limitation and as to whether the case of fraud has been made out in the plaint. These two preliminary issues first shall be framed and decided without any further delay. Both the Learned Munsiff, Tinsukia as well as A.D.J. Tinsukia are directed not to interfere with the execution proceeding in this particular suit and/or other proceeding arising out of it. Send a copy of this judgment to the Learned District Judge, Tinsukia for his further guidance.

The appeal and the revision both are allowed. I assess the cost of Rs. 2,000/-.