Smt. Nalinibala Das and Another vs Smt. Geeta Bose and Others

R.N. Misra, J.—Plaintiffs of Title Suit No. 224 of 1978 pending trial in the Court of the learned Subordinate Judge of Cuttack are in appeal challenging the order of refusal of grant of temporary injunction against the principal Defendant-Respondent No. 1 in the matter of execution of a decree for eviction obtained from the House Rent Controller.

Plaintiffs have alleged that the house in question possession whereof is sought to be taken belonged to late Charu, chandra, Das, husband of Plaintiff No. 1 and has been given in mortgage to Mr. M.K.C. Rao, Respondent No. 2, as security for a loan. Charuchandra Das died while the loan remained unsatisfied. The present Appellants were obliged to sell the property for Rs. 2000/- to the creditor in January 1968 and the creditor in his turn conveyed the property for the self-same consideration in June, 1970, in favour of the present Respondent No. 1. who is no other than the sister of late Charuchandra Das. It is said that the property located within the town of Cuttack is more than three gunths in extent (130 decimals) and has pucca valuable structures standing therein. According to the Plaintiff Appellants, the sudden death of Charuchandra Das and the financial hardship with which the members of the family had then been faced anti the pressure of the creditor for satisfaction of the loan had led to an arrangement that the property would be conveyed to the creditor and he in due course would reconvey the same after the claim was satisfied. Since the Appellants were not in a position to clear up the dues and the creditor was not prepared to hold the property, under the condition of reconveyance, title had to be reconveyance favour of Defendant No. 1 for the self-same consideration. Gopalchandra Das, husband of the second Plaintiff, entered into a tenancy arrangement evidenced by a rent deed stipulating payment of Rs. 401/- as monthly rent. On the basis of the rent deed, Defendant No. 1 obtained an exparte order of eviction from the House Rent Controller and in execution thereof has asked the Plaintiffs-Appellants to be turned out of the house. Thereupon the Plaintiffs filed a suit for declaration that they were owners of the property and the conveyance in favour of the creditor was only a mortgage and, therefore, the Defendant No. 1 being a transferee from the creditor continued to be a mortgagee only. An application for injunction to restrain the Defendant No. 1 from evicting the Plaintiffs from the premises was made. That having been rejected, this appeal has been filed.

The Appellants seem to have prima facie case. The fact that title to the property had been conveyed for the mortgage amount in favour of the creditor and two years thereafter the creditor himself had reconveyed the property to a close relation of the Appellants, prima facie lends support to the case made out by the Plaintiffs. 130 decimals of homestead land in Cuttack Town with a pucca house standing thereupon would have certainly been valued at much more than Rs. 2.000/- at the date of the two conveyances. The fact that the transactions, one in 1968 and the other in 1970, were entered into between the parties in the manner indicated above, prima facie appears to suggest that the transactions were not for market value and were not intended to be conveyance of title. The rent deed appears to be a part of the arrangement for saving the property from passing on to the hands of strangers. There is no force in the contention that grant of injunction in this case would run counter to the provisions of the Specific Relief Act. Injunction has been prayed for against the Defendant No. 1 for restraining her from dispossessing the Plaintiffs in terms of the Controller''s order. It may be that the real effect of injunction as claimed is to stay further proceedings in the Court of the Munsif in the execution case. Section 37(1) of the Specific Relief Act provides for temporary injunction and says that its grant would be in terms of the Code of Civil Procedure. In the case of Narayan Misra Vs. Surendranath Das and Others, a Bench of this Court pointed out that the Court of the Munsif was not subordinate to that of the Subordinate Judge and as such a Subordinate Judge could not pass an order of injunction against the Munsif. That conclusion was reached in view of the provisions of Order 39, Rule 1 of the CPC as it then stood. With the amendment of the Code in 1976, the Patna amendment of Order 39, Rule 1 of the 1908 Code running counter to the terms of amended Code has been deleted and at present there is no impediment for the Subordinate Judge to grant injunction against the Munsif. As already pointed out, u/s 37 of the Specific Relief Act, grant of temporary injunction is to be regulated by the Code of Civil Procedure. Rule 1 of Order 39 clearly provides that where in any suit if it is proved by affidavit or otherwise that the Defendant threatens to dispossess the Plaintiff in respect of the property in dispute In the suit to, the Court may by order grant a temporary injunction to restrain dispossession of the Plaintiff as the Court thinks fit, until the disposal of the suit. The restrictions contemplated u/s 41 of the Specific Relief Act appealing In Chapter VIII dealing with perpetual injunctions have no application to the present case.

I am inclined to think that the Plaintiffs should be allowed to continue in possession until their suit is decided. Plaintiff No. 1 is a helpless widow and the second Plaintiff is also a lady. Admittedly they have been staying in the house until now and if they are thrown out of it at the instance of the Appellant No. 1''s husband''s sister, they would be put to irreparable loss. Eviction had not been claimed on the basis of any personal requirement, but only on the ground of default, in the matter of payment of rent. Balance of convenience has to be weighed and taking a broad view of the position, I am of the opinion that the Defendant No. 1 should not be permitted to evict the Plaintiffs until the disposal of the suit. Mr. Dey for the Respondents vehemently contended that grant of injunction or stay in the present case would be contrary to precedents. I am not inclined to refer to precedents and would remain content by quoting an observation from Judge Jerome Frank''s famous Book ''Courts on Trial'' where it was stated (at p 266):

...Adhere to the decisions and do not unsettle things which are established. If that were the unvarying practice, the judges would reassemble a kind of caterpillar called ''processional'' because the larvae have the instinct of moving in single file...touching one another head to tail....

Yet, I think the Defendant No. 1''s interest should also be safe-guarded. I would direct that the suit be disposed of within six months from today. If the learned Subordinate Judge is not free to take up the trial and dispose it of as directed, the suit may be transferred to a Court where this direction can be complied with. Till disposal of the suit the execution case shall not proceed and the Appellants shall be allowed to remain in possession subject to the condition that they shall pay the rent for the premises at Rs. 40/- per month as per the rent deed and the same shall be paid to the Defendant No. 1 or deposited in the trial Court by 10th of the following month. The first payment on the aforesaid terms would become due on the 10th of May, 1980. On failure to pay the rent in the manner directed on any occasion, this order shall no more be operative and the execution for eviction shall proceed.

Whatever has been observed by me above, is intended for the disposal of this appeal and I have bad no intention to embarrass the learned Trial Judge to the least extent on the occasion of disposal to the tact.

The appeal is accordingly allowed. The impugned order is vacated and the Defendant No. 1 is restrained from taking possession of the house till disposal of the suit. Parties are diverted to bear then own costs.