Calcutta High Court (Appellete Side)
Suraj Singh vs Manoj Kumar Gupta & Ors on 24 January, 2025
1
IN THE HIGH COURT AT CALCUTTA
Civil Revisional Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Biswaroop Chowdhury
{
C.O. 3468 of 2023
Suraj Singh
VERSUS
Manoj Kumar Gupta & Ors.
For the petitioner: Mr. Animesh Paul, Adv.
Ms. Susmita Ghorai, Adv.
For the opposite party nos. 1 & 2: Mr. Rahul Karmakar, Adv.
Mr. Rajesh Upadhyay, Adv.
Mr. Akshay Jain Sukhani, Adv.
Last Heard on: December 16, 2024
Judgment on: January 24, 2025
Biswaroop Chowdhury,J:
The petitioner before this Court is a plaintiff in a Suit for declaration
cancellation of document and permanent injunction and is aggrieved by the
Order dated 04-09-2023 passed by the Learned District Judge at Howrah in
Misc Appeal No. 145 of 2023 arising out of Title Suit No. 433 of 2023 pending
before Learned Civil Judge Senior Division 2nd Court at Howrah. By Order
dated 04-09-2023, Learned District Judge rejected the prayer for ad-interim
injunction made by the plaintiff/petitioner.
2
The case of the petitioner/plaintiff in the application under Order 39
Rule-1 and 2 of the Code of Civil Procedure before Learned 2nd Civil Judge
Senior Division at Howrah in Title Suit No-433 of 2023 may be summed up
thus.
1. The plaintiffs brought the suit against the defendants for declaration
cancellation of document and permanent injunction
2. The facts stated by the plaintiff in the plaint are as follows:-
a) The subject matter of the suit is all that piece and parcel of
makorari mourasi bastu land measuring about 8 katha 5 chittak
19 sq ft. along with G+8 storied building which is standing thereon
comprised in and situated at 5/1 Rose Merry Lane Police Station-
Golabari District-Howrah. PIN-711101, within HMC ward No. 13.
b) The subject matter of the present suit is all that piece and parcel of
self contained flat being no. 3C on the 3rd floor measuring about
985 sq ft comprised in and situated at 5/1 Rose Merry Lane Police
Station - Golabari, District-Howrah PIN-711101 within HMC Ward
No-13.
c) The subject matter of the present suit is also purported agreement
for sale dated 06-05-2015 registered on 11-05-2015 which is
recorded in Book, No-I CD. Volume No-17, pages from 4860 to
4895, being no. 04942 for the year 2015 registered in the office of
District Sub-Registrar Howrah executed by plaintiff and defendant
3
no-1 in favour of the defendant no-3 and 4 where defendant no-2
is confirming party.
d) The plaintiff since long is involved in the business of real estate
and promotion of building and earned some reputation. During
this time defendant no-1 picked up acquaintance with the plaintiff
and in course of time good relationship developed between plaintiff
and defendant no-1. The defendant no-1 in course of relationship
became aware of the fact that the plaintiff is suffering from serious
physical problem and a chronic patient of neurosis. After coming to
know about the said fact, the defendant no-1 somehow convinced
the plaintiff to purchase A-schedule property in the joint name of
the plaintiff and the defendant no-1.
e) Although power of attorney was executed by the erstwhile owner in
favour of the plaintiff but the said, property was subsequently
purchased by virtue of Deed of Sale dated 03.02.2012 registered in
the office of DSR. Howrah recorded in Book No-1 Volume No.2
pages from 8490 to 8517 being no. 855 for the year 2012 in the
joint name of the plaintiff and the defendant no-1.
f) It is the plaintiff who exclusively made construction of multi
storied building by making a construction of G+8 floor at the said
property by incurring own expenses.
g) At no point of time the defendant no.2 was appointed as developer
in respect of the suit property, nor there was/is any development
4
agreement between the defendant no-2 with the plaintiff and
defendant no-1. The defendant no. 2 has never acted as developer
in respect of the suit property.
h) The defendant no-1 entered into a collusive and illegal document
with the defendant no-3 and 4 in hand in gloves in between the
parties and such agreement for sale dated 06.05.2015 registered
on 15-05-2015 in favour of the defendant no-3 and 4 and was in
facts and substances being created by the defendant no-1 inter se
in collusion and conspiracy in between them. In the said document
defendant no-2 company has been shown as developer of the A
schedule property As a matter of fact no development agreement in
any manner whatsoever was ever created in favour of the
concerned defendant no-2 and in absence of fundmental document
creating a right in favour of the defendant no. 2 the document
collusively and illegally created in favour of defendant no-3 and 4
does not create any interest inasmuch as the document being the
agreement for sale remained to be an illegal document being not
enforceable in the eye of law. The misdeed of the defendant no-1
will be established ex-facie from the contemporaneous document of
sale being Deed No. 190110010 for the year 2015 in the office of
the ADSR. Howrah where defendant no-2 has been shown as
owner of the flat and defendant no-1 represented the defendant no-
2 as director.
5
It is contended by the plaintiff that all these documents have been made
with the object to cheat and defraud the plaintiffs. A prayer was made before
the Learned Trial Court for a temporary order of injunction restraining the
defendant no-1 to 4 from claiming any right in schedule "B" flat on the basis of
agreement for sale described in schedule 'C' and from creating any third party
interest in respect of the schedule 'B' flat in any manner by an order of ad-
interim and temporary injunction. The said injunction application was moved
on the date of filing of the suit.
Learned Trial Court upon considering the prayer for ad-interim
injunction was pleased to refuse the same by observing as follows:
'Having heard the Ld. Advocate for the plaintiff and perused the materials
on record it admittedly appears to the Court that the suit has been filed with a
view to challenge the validity of an agreement for sale in which the plaintiff
himself is a party.
Whether or not the plaintiff's signature on the impugned agreement for
sale was obtained by fraud shall be decided at the time of final hearing of the
suit but it is the admitted case of the plaintiff that the defendant no. 3 and 4
being the proposed buyer of the 'B' schedule flat have already initiated a
Consumer Case against the plaintiff. This fact goes to show that the defendant
no. 3 and 4 being the proposed buyer are having some sort of grievance against
the Plaintiff and the Defendant no-1 who executed the impugned agreement for
sale.
6
It is also admitted by the plaintiff that the defendant no. 5 is in physical
possession of the 'B' schedule flat. Therefore this Court does not find any
cogent ground to pass any ex-parte ad-interim injunction against the
defendant no. 1 to 4 without giving them an opportunity of hearing.
Hence it is.
ORDERED.
That the prayer for ad-interim order of injunction is hereby refused at
this stage.'
The petitioner/plaintiff being aggrieved by the order passed by Learned
Trial Court preferred an appeal before Learned District Judge at Howrah being
Misc Appeal No. 145/2023.
Learned District Judge at Howrah by Order dated 04-09-2023 was
pleased to refuse ad-interim injunction by observing as follows:
"Heard Learned Advocate for the appellant. I have perused the injunction application and
photocopies of the documents and other materials on record.
Considered.
On consideration of the same, I find that the appellant/plaintiff has filed copy of general
power of attorney dated 03.04.2009 from which it is seen that he was granted power of
attorney by the original owner of the property from whom he and defendant
no.1/respondent no.1 later on purchased the suit property by deed of sale dated
03.02.2012. It also comes out that on 06.05.2015 he and defendant no.1/respondent
no.1 entered into an agreement for sale of ‘B’ scheduled property to
7
defendants./respondent nos. 3 and 4 who are intending purchasers. It is the case of the
plaintiff/appellant that the ‘B’ scheduled property is actually under the possession of
tenant i.e. defendant/respondent no.5 inducted by him. It comes out from the documents
filed by the plaintiff/appellant that defendant nos. 4 and 5/respondent nos. 4 and 5 have
already paid Rs. 35,90,000/- for such purchase and ultimately, filed a case before the
Consumer Forum seeking relief.
Under such attending facts and circumstances, I am of the considered opinion that
respondents should be given an opportunity of being heard before passing any order of
ad interim injunction in favour of the appellant. Accordingly, the prayer for ad interim
order of injunction is considered and rejected at this stage.
Issue notice upon the respondents asking them to show cause within fifteen days from
the date of receipt thereof as to why the prayer for temporary injunction shall not be
granted.”
The petitioner/plaintiff being aggrieved by the Order passed by the
Learned Appellate Court has come up with this application under Article 227 of
the Constitution of India.
It is the contention of the petitioner that the Learned Appellate Court
acted illegally and with material irregularity in failing to consider the
contentions put forth in the application for injunction. It is further contended
that the documents relied on by the petitioner in support of the application for
injunction would show that the agreement for sale whereof cancellation was
sought for in the suit, was executed by playing fraud upon the petitioner. It is
also contended that there has been complete non-application of judicious mind
8
by the Learned Appellate Court below on the issues and contentions put forth
by the petitioner in the application for injunction.
Pursuant to filing of this application, notice was issued upon the
opposite parties. opposite party no. 1, and 2 appeared pursuant to service of
notice. Opposite party no- 3 to 5 did not appear to contest the application.
Heard Learned Advocate for the Petitioner and Learned Advocate for the
opposite party no-1 and 2. Perused the petition filed and materials on record.
Learned Advocate for the petitioner submits that the Learned Court
below while refusing to pass ad-interim order of injunction has failed to
consider the case made out in the plaint as a whole and the urgency involved
therein and merely upon recording the facts made sole observation that the
respondents should be given opportunity of being heard. Learned Advocate
further submits that the Learned Appellate Court as well as the Learned Trial
Court below both have failed to consider the ingredients for passing and/or
refusing to pass an order of injunction ie. prima facie case, balance of
convenience and inconvenience and chances of irreparable loss and injury and
without testing the case on the same has refused to pass ad-interim order of
injunction.
Learned advocate also submits that the Learned Court below failed to
consider that even if the plaintiff was a party to the impugned Agreement for
sale he has made out a case of fraud against the defendant which would prima
facie appear from the following:
9
i) The defendant no-2 has been added as developer/confirming
party though there is no Development Agreement in its favour.
ii) the deed was presented for registration at the residence of the
defendant No. 1.
iii) another Deed of conveyance executed in respect of another flat
at the suit property whereby the defendant No-2 was shown as
vendor.
iv) Medical documents of the plaintiff since 2007 showing neurosis
problem and the medicine prescribed therein which lead
drowsiness state all throughout.
v) Filing of Vokalotnama by the defendant no-1 in Consumer case
on behalf of the plaintiff.
vi) Filing of written version by the defendant no-1 and 2 in the
consumer case admitting receipt of Rs. 35,90,000/- and readiness
to deliver the flat and register the Deed of Conveyance on payment
of the balance consideration.
Thus on the basis of these facts the plaintiff has been able to make
out a prima facie case, balance of convenience and inconvenience
in its favour and also the chances of irreparable loss and injury
and therefore the plaintiff was entitled to an ad-interim order of
injunction. A prayer was made before the Learned Trial Court for a
temporary order of injunction restraining the defendant no. 1 to 4
from claiming any right in schedule ‘B’ flat on the basis of
10
agreement for sale described in schedule ‘C’ and from creating any
third party interest in respect of the schedule ‘B’ flat in any
manner by an order of ad-interim and temporary injunction till
disposal of the suit. Learned Court failed to consider that there is
every chance of creating third party interest during pendency of
the suit which will not only frustrate the suit, but also result in
multiplicity of proceedings.
It is submitted by the Learned Advocate that the documents relied upon
by the plaintiff in support of the application for injunction would prima-facie
show the impugned Agreement for sale has been executed by playing fraud
upon the plaintiff and thus pending determination of such issue involved in the
suit there is necessity of preserving the suit flat in status-quo and as such, an
ad-interim order of injunction will be very much required to save the suit from
being frustrated and for the interest of justice.
Learned Advocate for the opposite parties submits that the suit has been
filed on August 14, 2023. The ad-interim order of injunction was refused by the
Learned Trial Court on August 14, 2023. Aggrieved by the said order, the
petitioner preferred an appeal and the same was again rejected on September
4, 2023. This revisional application was filed on September 25, 2023. Till date
the petitioner has been unable to obtain an interim order far less the same
being heard on merits. As such, the imminent exigency if any has become
redundant owing to the prolong pending of this matter and as such no
injunction in its ad-interim form can be granted as prayed for owing to such
11
delay. Learned Advocate further submits that from the plain reading of the
plaint as well as the injunction application annexed at Pages10 and 19 of the
petition respectively, there is no averment indicating any extra ordinary
urgency or eminent danger which gives rise to a requirement for issuance of an
order of injunction in its ad-interim form. Thus in absence of any specific case
made out regarding urgency of the matter the Learned Courts below cannot be
said to have perversely exercised their discretion by rejecting the ad-interim
order of injunction. Learned Advocate also submits that although the
petitioner/plaintiff has instituted the suit alleging fraud but the provisions of
Order VI Rule 4 of Code of Civil Procedure 1908 has not been complied with
and the particulars of fraud is not given. Thus petitioner is not entitled to ad-
interim injunction. It is also submitted by Learned Advocate that the suit is
undervalued and unstamped and the valuation of the suit ought to have been
at least Rs. 12,00,000/- and court fees ought to have been paid accordingly.
Learned Advocate submits that the suit is instituted after 8 years from the date
of execution of the registered agreement and it is barred under Article 59 of the
Limitation Act 1963, which provides a limitation of 3 years from the date when
the facts entitling the plaintiff to seek such cancellation is known to him.
Learned Advocate further submits that when a document is registered the date
of registration becomes the date of deemed knowledge as observed by the
Hon’ble Supreme Court in the case of Dilboo VS Dhanraji, reported in (2000)7
SCC. P-702.
12
The following decisions are relied upon by Learned Advocate for the
opposite parties.
Smt Sova Rani Dutta.
VS
Shri Ashis Kumar Dutta and Anr.
Reported in (2014) 1 CHN. 45.
Wander Ltd and Anr.
VS
Antox India P.Ltd.
Reported in (1990) SUPP SCC-727
Dilboo (Smt) (Dead) By LRS and others
VS
Dhanoaji (Smt) (Dead) and others
Reported in (2000) 7 SCC-702.
Supratik Ghosh and Anr.
VS
Pasari Housing Development Pvt Ltd.
Reported in (2000) (1) CHN 614 and
13
The Bengal Club Ltd vs. Susanta Kumar Chaudhury
Reported in (2002) 3 CHN 322
Before proceeding to decide the matter in issue it is necessary to discuss
the provisions regarding power of Court to grant injunction and the
circumstances under which ex-parte ad-interim injunctions can be passed.
Order XXXIX Rule 1 of the Code of Civil Procedure provides the cases in
which temporary injunction may be granted.
Order XXXIX Rule 1 sub-Rule-1 of the Code of Civil Procedure Provides
as follows:
1. Cases in which temporary injunction may be granted.
-1) Where in any suit it is proved by affidavit as otherwise.
a) that any property in dispute in a suit is in danger of being wasted,
damaged or alienated by any party to the suit or wrongfully sold in
execution of a decree, or
b) that the defendant threatens, or intends, to remove or dispose of
his property with a view to [defrauding] his creditors.
c) that the defendant threatens to dispossess the plaintiff or otherwise
cause injury to the plaintiff in relation to any property in dispute in
the suit.
The court may by order grant a temporary injunction to restrain such act
or make such other order for the purpose of staying and preventing the wasting
14
damaging alienation sale, removal or disposition of the property or
dispossession of the plaintiff or otherwise causing injury to the plaintiff in
relation to any property in dispute in the suit] as the court thinks fit, until the
disposal of the suit or until further orders.
Rule 3 of Order XXXIX contains the following provisions:
3) Before granting injunction Court to direct notice to opposite party
The Court shall in all cases except where it appears that the object of
granting the injunction would be defeated by the delay before granting
an injunction direct notice of the application for the same to be given
to the opposite party:
Provided that, where it is proposed to grant an injunction without giving
notice of the application to the opposite party the court shall record the
reasons for its opinion that the object of granting the injunction would be
defeated by delay and require the applicant-
a) to deliver to the opposite party or to send to him by registered post,
immediately after the order granting the injunction has been made a copy of
the application for injunction together with-
i) A copy of the affidavit filed in support of the application.
i) a copy of the plaint; and
ii) copies of documents on which the applicant relies and
15
b) to file, on the day on which such injunction is granted or on the
day immediately following that day an affidavit stating that the
copies aforesaid have been so delivered or sent.
The case of the plaintiff is based on fraud and he sought cancellation of
agreement for sale dated 06.05.2015 registered on 11.05.2015. The plaintiff in
support of his case has contended that there was no development agreement
with defendant no. 2 and defendant no 2 cannot claim himself to be developer
of suit property. It is further contended by the plaintiff that the defendant no. 2
never acted as a developer nor invested a single furthing thus no question of
development arose in the suit property in absence of primary document to
development agreement. The plaintiff petitioner has also contended about title
suit no. 503 of 2019 pending before Learned Civil Judge (Senior Division)
Second Court at Howrah where there is an Order of injunction at Schedule ‘A’
property and defendant no. 5 is in possession of B. Schedule property. It is
contention of the petitioner/plaintiff that he has not received a furthing with
regard to agreement for sale, and the agreement for sale is an Act of collusion
between defendant/opposite party no. 1 and 3 and 4. The plaintiff petitioner
also contends of a sale deed with regard to Flat 4A of Schedule A property
where defendant no. 1 is shown as director of defendant no. 2 and without the
name of the petitioner as owner. The petitioner/plaintiff has also mentioned
the consumer case from which he came to know about the acts of the
defendants.
16
At the very outset it is to be considered that this Court is not hearing
an appeal but an application under Article 227 of the Constitution of India
which is a supervisory jurisdiction and it is only necessary to consider the
reasons given by the Trial Court and Appellate Court in refusing ad-interim
injunction and thereafter decide as to whether interference is required.
Upon perusing the Order passed by the Learned Trial Court it will
appear that the Learned Trial Court observed that whether the agreement for
sale on which cancellation is sought is obtained by fraud will be decided at the
time of trial and refused to pass an ex-parte ad-interim injunction on the
ground that the defendant no. 3 and 4 being proposed buyer have initiated a
consumer case against the plaintiff/petitioner and defendant/opposite party
no. 1, which shows that there is grievance against plaintiff/petitioner and
defendant opposite party no. 1 and that the suit property is in possession of
defendant no. 5 who is a tenant. Learned appellate Court also refused to pass
an ad interim order of injunction on the ground that plaintiff/petitioner and
defendant/opposite party no. 1 entered into an agreement for sale with
defendant/opposite party no. 3 and 4, and have received consideration of Rs,
35,90,000/- and have filed a case before consumer forum seeking relief.
It is well settled that Courts while considering prayer for ad-interim
injunction is only required to confine itself to the pleadings in the plaint, treat
the same to be true and then decide as to whether an ad-interim order should
be granted or refused considering the exigency.
17
Order XXXIX Rule 1(1)(a) of the Code of Civil Procedure empowers the
Court to pass temporary injunction where it is proved by affidavit or otherwise
that any property in dispute in a suit is in danger of being wasted damaged or
alienated by any party to the suit or wrongfully sold in execution of a decree for
the purpose of staying and preventing the wasting, damaging, alienation sale
removal or disposition of property causing injury to the plaintiff till the disposal
of the suit.
Thus from reading of Order XXXIX Rule 1(1)(a) of the Code of Civil
Procedure it will appear that the Court has power to preserve a suit property
from being wrongfully alienated till the disposal of the suit. In the instant case
the plaintiff has alleged fraud with regard to the agreement made for sale of the
suit property. It is also an admitted position that possession is not with the
defendant no. 3 and 4 but with the defendant no. 5 and the plaintiff/petitioner
has not sought any relief against the opposite party/ defendant no.5.
As the Court has power to preserve the property it has the power to
direct status-quo with regard to changing the nature and character of suit
property, or from preventing the property from being alienated to any third
party or from parting possession with the said property.
In the case of Shrimati Laxmi Dey and Anr VS Shyam sundor Hans
reported in AIR-2005 Orissa page 75 the Hon’ble Court observed as follows:
‘Order 39, Rule 1, C.P.C. lays down the circumstances under which a
temporary injunction can be granted in a suit. Unless the circumstance laid
18down in this rule exists, a Court has no jurisdiction to grant temporary
injunction. Granting an order of injunction under Order 39, Rule 1, C.P.C. is
purely a discretion of the Court and law is well settled that this discretion
vested in the Court, like any of the discretionary power, can be exercised in
accordance with reason and on sound judicial principles. The settled principles
of law governing exercise of the discretion conferred by this rule are to the
effect that a person who seeks a temporary injunction must satisfy the Court
as to the existence of the following conditions :
First, that there is a prima facie case raised in the suit which is required
to be tried and that on the facts before the Court there is probability of the
petitioner being entitled to the relief asked for by him.
Secondly, that the Court’s interference is necessary to protect the
petitioner from that species of injury which the Court calls irreparable, before
the legal right of the petitioner can be established on trial, and
Thirdly, that the comparative mischief or inconvenience which is likely to
occur by withholding the injunction will be greater than that which is likely to
arise from granting it.
Thus, in other words the petitioner is to establish that he has a prima
facie case and that in the event the interim injunction is refused, he will suffer
irreparable injury and the balance of convenience is in his favour. In order to
establish a prima facie case, the plaintiff-petitioner is not required to establish
his title. It would be sufficient for him to show that he has a fair question to
19raise with regard to the existence of his right and that till such question is
decided finally it is required to preserve the property in status quo. Lack of
proof of any of the conditions will disentitle the party praying for interim
injunction from getting such an order. While deciding an application under
Order 39, Rules 1 and 2, C.P.C the Court should not express any opinion on
the merits of the case of the respective parties.’
In different judicial pronouncements it is observed that the broad
purpose of section 52 of the Transfer of Property Act is to maintain Status quo
unaffected by the act of any party to the litigation pending its determination.
Although right to property is not a fundamental Right but it is a
Constitutional Right thus every person has the Right to enjoy the property
owned by him or lawfully occupied by him. Thus when a person has reasonable
ground to apprehend that his Right to property is prejudiced or under
challenge he can seek shelter in the Court of law seeking necessary relief.
Similarly, when a person alleges that he will be wrongfully deprived of his
property on the ground of wrongful alienation by fraud he immediately can
seek relief before the Court of law praying for necessary relief. An enquiry with
regard to the fraud is to be conducted and if prima facie case of plaintiff
appears in the plaint, it is always reasonable for the Court to direct Status quo
with regard to suit property to prevent the multiplicity of litigation and further
complication.
20
As justice is not only to be done but manifestly and undoubtedly be
shown to be done the litigant approaching the Court with anxiety regarding his
immovable property being attempted to be wrongfully alienated by fraud and he
being deprived illegally of his property should be permitted to remain in
peaceful state of mind for a short period till the opposite party defendant is
heard by directing Status quo of the suit property to be maintained if there is
prima facie case. Upon hearing the defendant the Court can decide whether to
continue the Status quo Order or vacate the same. In such cases ordinarily the
balance of convenience is in favour of the plaintiff.
The Learned Court in the instant case upon considering the plaint
did not specifically address with regard to the documents relied upon by the
plaintiff about selling one of the flats by defendant no. 2 in Schedule A property
without showing plaintiff as its owner and the medical papers showing
ailments of the plaintiff/petitioner. Both the Learned Trial Court and Appellate
Court relied upon the case instituted before Consumer Forum when there is no
order of Learned Consumer Forum directing the parties to do any Act with
regard to the suit property. When it is observed by the Learned Trial Court that
defendant no. 5 is in possession of suit property passing of Order of Status quo
would not have caused prejudice to the defendant no. 5. Thus upon
considering the nature of the suit, the prima facie case, balance of convenience,
and irreparable loss this Court is of the view that the plaintiff/petitioner is able
to furnish grounds for ex-parte ad-interim injunction.
21
Now with regard to the submission of the opposite party that the suit
is not properly valued such plea can be taken at the time of trial by framing
specific issue. Again with regard to the submission that particulars of fraud not
pleaded this Court is of the view that this issue cannot be decided at this stage.
As courts have power to permit amendments of pleading in the interest of
justice, necessary steps can be taken in this regard at the subsequent stage by
making necessary amendments.
Learned Advocate for opposite party relies on the decision of Dilboo
(Supra) where the Hon’ble Supreme Court observed as follows:
‘As the title of the rank trespasser would get perfected by adverse
possession on the expiry of 12 years so also the title of such transferee would
get perfected after 12 years. The period of 12 years has to run from the date of
knowledge by the plaintiff of such transfer. It is always for the party who files
the suit to show that the suit is within time. Thus in cases where the suit is
filed beyond the period of 12 years, the plaintiff would have to aver and then
prove that the suit is within 12 years of his/her knowledge. In the absence of
any averment or proof to show that the suit is within time, it is the plaintiff
who would fail. Whenever a document is registered the date of registration
becomes the date of deemed knowledge. In other cases where a fact could be
discovered by due diligence then deemed knowledge would be attributed to the
plaintiff because a party cannot be allowed to extend the period of limitation by
merely claiming that he had no knowledge.’
22Upon considering the above decision relied upon by the learned
Advocate it appears that the same is not applicable to the facts of the case. As
submitted by the learned Advocate for the opposite party that knowledge is
deemed to be from the date of registration, same is not applicable in this case
as the dispute is not with regard to execution and registration of an agreement
in absence of petitioner and it is admitted that petitioner was present at the
time of execution and registration of a document but that fraud was played
upon the petitioner at the time of execution and registration of agreement and
the petitioner upon detecting such fraud filed the suit, which is well within the
period of limitation as pleaded in the plaint. The period of limitation in the case
relied upon was 12 years and not 3 years. Moreover these issues can be
decided at the time of trial.
Again with regard to the decision of this Hon’ble Court in the case of
Supratik Ghosh and Anr (Supra) relied upon by learned Advocate for the
opposite party it is submitted that there is no-imminent exigency but upon
considering the said decision it appears that in the said case ad-interim order
of injunction was granted in an application under section 9 of the Arbitration
and Conciliation Act. The Hon’ble Division Bench upon considering the
principles under order 39 Rule 3 of Code of Civil Procedure to be applicable in
application under section 9 of the Arbitration and Conciliation Act 1996 was
pleased to make the following observation.
‘In my view reason is the soul of an order. An order without reason is
a body without soul. It is now settled in our judicial discipline that any order
23passed by the court should ordinarily be supported by the reasons because the
reasons express the thought process of the court which weighed with the court
to pass such order. Mere quoting a few words from the statute or reiteration of
something from the pleading would not amount to reason. I am of the view that
the order which is subject matter of the present appeal did not disclose any
reason why the interim order was necessary and passed by the court. In my
opinion an order even if it is of a court is not supported by any reason that
would render the order arbitrary fanciful and vague. Even an order of a court
cannot be permitted to be arbitrary fanciful or vague.’
Hon’ble Division Bench further observed as follows:
’27 From the order itself it does not appear that the Court was
satisfied that there exists a valid arbitration agreement and the applicant
intends to take the dispute to arbitration. Such satisfaction of the Court should
be apparent from the order itself, Court should record its satisfaction in the
order itself. No such satisfaction of the court can be found out from the order
under challenge. Under these circumstances the order under challenge in this
appeal is also hit by the principles laid down in Sundaram Finance ltd.case
(Supra).’
Thus the above observations were made with regard to the ex-parte
ad-interim order of injunction passed in an application under section 9 of the
Arbitration and Conciliation Act 1996 without recording satisfaction that there
24exists a valid arbitration agreement, secondly without disclosing the reason as
to why the interim order was necessary.
In the instant case the grievance of the petitioner against the order
passed by the Learned Trial Court and Learned Appellate Court is the refusal
to pass ad-interim ex-parte order of injunction. It is true that while passing an
ex-parte order of injunction the court has to record the reasons as contained in
proviso to Rule 3 of order XXXIX of the Code of Civil Procedure that the object
of injunction would be defeated by delay and in case of refusal to pass ad-
interim injunction such reasons is not required but even while refusing to pass
ad-interim injunction court should consider all the facts and materials relied
by the plaintiff before arriving at a confusion to refuse ad-interim order of
injunction. In the event all relevant materials are not taken into consideration
and decision is taken such decision becomes arbitrary. Learned Court below
only considered the fact that defendant No. 3 and 4 instituted case against the
plaintiff and defendant no. 1 and ignoring contention of the plaintiff that
defendant no. 1 fraudulently executed a sale deed by showing defendant no. 2
as owner of the flat, and defendant no. 1 represented defendant no. 2 as
director in another sale deed. Upon perusing the contention in the plaint and
documents filed it will appear that in the agreement for sale dated 6th May,
2015 Petitioner/Plaintiff and defendant no. 1 are shown as vendors/owners of
suit property and defendant no. 2 as developer/confirming party and on the
other hand a sale deed is executed with regard to FLAT 4A at Schedule A
property by defendant no. 2 as owner of the said property and defendant no. 1
25
as director. Plaintiff/petitioner has relied upon the said sale deed and
prescription of his medical ailments for the corroborating his case with regard
to fraud committed by defendant no. 1. Moreover, the order of Consumer
Forum dated 27th July, 2023 will also go to show that no notice was issued
upon the petitioner and Learned Advocate appeared on behalf of the petitioner
without signature of petitioner thus petitioner/plaintiff was granted
opportunity to file written statement. Learned Trial Court and the Appellate
Court did not consider and address themselves on these issues. The purported
sale deed relied upon by the petitioner/plaintiff where defendant no. 2 is shown
as owner of FLAT 4A at Schedule A property along with the medical
prescription relied upon will go to show the plaintiff /petitioner has a prima-
facie case and balance of convenience is his favour. Further memo of
consideration mentioned in agreement for sale specifies the cheque number of
the cheques issued, there is no mention in whose names cheques are issued.
Thus from the facts it can be inferred that there may be irreparable loss as
there is reasonable apprehension of the object of injunction being frustrated
due to delay, and notice.
Now with regard to the decision of the Hon’ble Supreme Court in the
case of Wander ltd. and Another (supra), the Hon’ble Supreme Court in the
case Wander Ltd. (supra) made the following observation:
‘The interlocutory remedy is intended to preserve in status quo, the
rights of parties which may appear on a prima facie case. The court also in
restraining a defendant from exercising what he considered his legal rights but
26what the plaintiff would like to be prevented puts into the scales as a relevant
consideration whether the defendant has yet to commence his enterprise or
whether he has already been doing so in which latter case considerations
somewhat different from those that apply to a case where the defendant is yet
to commence his enterprise are attracted.’
The Hon’ble Court was further pleased to observe as follows:
’14 the appeals before the Division Bench were against the exercise of
discretion by the Single Judge. In such appeals the appellate court will not
interfere with the exercise of discretion of the court of first instance and
substitute its own discretion except where the discretion has been shown to
have been exercised arbitrarily or capriciously or perversely or where the court
had ignored the settled principles of law regulating grant or refusal of
interlocutory injunctions.’
Upon considering the decision relied upon it will appear that nature
of the suit in Wander Ltd. is a suit for passing of action under Trade and
Merchandise Marks Act, 1958 where defendant was sought to be restrained
from manufacturing and marketing goods under a particular trade mark and
the Hon’ble Supreme Court was pleased to direct status quo to be maintained
which was existing immediately preceding institution of the suit.
In this matter the suit filed is cancellation of agreement for sale. The
defendants/purchasers have not taken possession of suit property, moreover
the suit property is in possession of a tenant. Thus alienation and creation of
27third party interest is necessary to be prevented in order to maintain status
quo of the suit property.
It is once again reiterated that Right to Property although is not a
Fundamental Right but it is a Constitutional Right. Thus every person has
right to enjoy property owned by him or under his lawful occupation. Hence,
when a person apprehends that he will be deprived of his property by fraud
and approaches court by furnishing relevant facts and materials, he should be
relieved of his anxiety by interim order for the period till his right is decided.
Thus, in such cases ad-interim ex-parte order for a short period cannot be said
to be unreasonable. As Rule 3A of order XXXIX of the Code of Civil Procedure
puts an obligation upon the court to make an endeavour to dispose application
for injunction within thirty days in case of ex-parte ad-interim injunction, it is
just and reasonable to protect the right of plaintiff where fraud with regard to
his immoveable property is alleged, with some materials by passing ad-interim
order of injunction and then make endeavour to dispose the injunction
application within thirty days.
In the facts and circumstances discussed above, this court is of the
view that the Order No- 02 dates 04-09-2023 passed by Learned District Judge
at Howrah in Misc Appeal No 145 of 2023 arising out of title suit no- 433 of
2023 cannot be sustained and the same should be set aside.
Hence this application under Article 227 of the Constitution of India is allowed.
Order dated 04-09-2023 passed by the Learned District Judge at Howrah in
28Misc Appeal no 145 of 2023 arising out of title suit no 433 of 2023 is set aside.
Defendant no 03 and 4 are restrained by an order of injunction from claiming
any right to Schedule-B flat on the basis of agreement for sale described in
Schedule ‘C’ till the disposal of Injunction application pending before Trial
Court Defendant no-1 to 4 are restrained by an order of injunction from
creating any third party interest in respect of Schedule ‘B’ property till the
disposal of injunction application. Defendants are permitted to file affidavit in
opposition to the injunction application within 3 weeks and reply if any by the
plaintiff within one week thereafter. In the event affidavit cannot be filed within
the period as directed for some exceptional reasons necessary extension may
be obtained from the Trial Court. Learned Trial Court is requested to dispose
the application for injunction expeditiously preferably within a period of three
weeks from the date completion of affidavits. As in view of this order nothing
remains to be considered and disposed in Misc. Appeal No. 145 of 2023
pending before Learned District Judge at Howrah the same is treated to be
disposed. This revisional application is disposed of.
Urgent photostat certified copy of this order, if applied for, should be
made available to the parties upon compliance with the requisite formalities.
(Biswaroop Chowdhury,J)
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