MD. SAIFULLAH WAKF ESTATE AND ANR. Vs. SARA DEVI AGARWALLA ALIAS MADHANIA
LAWS(GAU)-1994-7-23
HIGH COURT OF GAUHATI
Decided on July 18,1994

Md. Saifullah Wakf Estate And Anr. Appellant
VERSUS
Sara Devi Agarwalla Alias Madhania Respondents





Cited Judgements :-

DIPAK CHANDRA RUHI DAS VS. PRADIP KUMAR SARKAR AND 14 ORS. [LAWS(GAU)-2021-3-130] [REFERRED TO]


JUDGEMENT

J.N. Sarma, J. - (1.)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 injunction 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.

(2.)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 interlocutory 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 under Section 24 of the Civil Procedure Code 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 Under Section 148A(2) Code of Civil Procedure 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.

(3.)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 Under Section 24 Code of Civil Procedure 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.



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