BECHNI MAHALI Vs. SHEIKH GAFOOR
HIGH COURT OF CALCUTTA
Referred Judgements :-
SHEIKH JAHARUDDI V. HARI CHARAN PODDAR
<RC>LAWSUIT(CAL) 1960 0 316;ILR(CAL) 1961 2 437;</RC>
HIGH COURT OF CALCUTTA
<AT>CIVIL RULE 3947 OF 1958</AT>
CODE OF CIVIL PROCEDURE,1908 OR 39R 2(3);CODE OF CIVIL PROCEDURE,1908 OR 39R 2;
<ACT>CODE OF CIVIL PROCEDURE,1908</ACT> <S>OR.39R.2(3)</S><ACT>CODE OF CIVIL PROCEDURE,1908</ACT> <S>OR.39R.2</S>
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(1.)The Defendant of the trial court is Petitioner in this Rule. The Plaintiff is the opposite, party. The suit was instituted in the Second Court of the Munsif at Sealdah as early as on October 3, 1953. On October 6, 1953 the Plaintiff obtained an order of temporary injunction against the Defendant restraining her from making any constructions on the disputed land until further orders of the court. This order was made absolute on July 20, 1954 on the. Defendant's giving an undertaking that she would not make any construction on the disputed land during the pendency of the suit. The suit was transferred to the Additional Court of the Munsif at Sealdah on March 30, 1955, by the order of the District Judge, Thereafter, the Plaintiff put in a petition under Order XXXIX, Rule 2 (sub-Rule 3) of the Code of Civil Procedure alleging that the order of injunction which had been passed on October 6, 1953 had been violated by the Defendant by making unauthorised and illegal constructions on the disputed land in violation of the order of injunction. This application was heard by the learned Munsif of the First Additional Court of Sealdah on September 17, 1955 and on that date he passed an order upon the Defendant to demolish the pucca constructions of walls and rooms within two months from the date of the order. There was a further direction that if the Defendant failed to carry out this order, then the provisions of Order XXXIX, Rule 2 (sub-Rule 3) of the Code will come into operation. No demolition was made by the Defendant and the structures of the Defendant standing on the disputed lands were later on attached and advertised for sale.
(2.)After the property of the Defendant had been advertised for sale, she applied to the Munsif for withdrawing that order. The learned Munsif thereupon passed an order on November 19, 1957 directing the Defendant to pay a sum of Rs. 40 to the Plaintiff by way of compensation for breach of the order of' injunction. It was further ordered by the Munsif that if this amount wag paid, then the property of the Defendant will not be sold. The amount in question was deposited by the Defendant within the time fixed by the Munsif.
After the above order was passed by the Munsif, two appeals were preferred by the Plaintiff, one against the order fixing the compensation and the other against the order by which the order for sale of Defendant's property was cancelled. The appeals were heard together and were disposed of by the appellate Court by one judgment. That Court allowed the appeals and set aside the orders passed by the learned Munsif and directed that the? Defendant's property, should be sold in accordance with thai provisions of Order XXXIX, Rule 2(4), of the Code of Civil Procedure. This Rule is directed against the order passed by the appellate court.
After hearing Mr. Ghose on behalf of the Defendant Petitioner and Mr. Roychoudhury on behalf of the Plaintiff opposite party. I am of opinion that this Rule must be made absolute on one short ground. The order of temporary injunction for violation of which complicated proceedings took place in the courts of the learned Munsif, was issued as early as on October 6, 1953 by the learned Munif of the Second Court at Sealdah before whom the plain had been filed. The order of temporary injunction was also made absolute by the court. Thereafter, the whole suit was transferred to the Court of the First Additional Munsif at Sealdah on March. 30, 1955, by the order of the District Judge. The Plaintiff opposite party applied to the latter Court under Order XXXIX, Rule 2 (sub-Rule 3) of the Code for taking suitable steps against the Defendant Petitioner for wilful violation of the order of injunction. The last mentioned Court dealt with this matter and passed an order oh September 17, 1955 under Order XXXIX, Rule 2 (sub-Rule 3) of the Code as already stated by me. Mr. Ghose argued that the transferee court had no jurisdiction to take steps against the Petitioner under Order XXXIX, Rule 2 (sub-Rule 3) of the Code. In support of his contention he referred me to a decision of a Division Bench of this Court in Sheikh Jaharuddi v. Hari Charan Poddar,1913 18 CalWN 470. It has been held in that case that a Court to which a suit may be transferred cannot exercise the special jurisdiction under Order XXXIX, Rule 2 (sub-Rule 3) where the order of injunction has been passed by a different Court. The view taken by the learned Judges in that case is supported by the very language of Order XXXIX, Rule 2(3) which says that for disobedience or breach of an order of injunction the property of the delinquent can be attached by the court granting the injunction. In the present case the order of injunction, as I have already stated, had been passed by a different Court. That being the case, the transferee Court, which was the Court of the First Additional Munsif at Sealdah, had no jurisdiction to entertain the application filed by the Plaintiff opposite party on May 3, 1955. All proceedings which followed in the court of the First Additional Munsif were irregular. The order by which the learned Munsif fixed the amount of compensation at Rs. 40 was also passed in that irregular proceeding and that order was also without jurisdiction. This being the legal position, the learned Subordinate Judge, who disposed of the appeals of the Plaintiff had no jurisdiction to direct the sale of the property of the Defendant Petitioner. The present Rule must, therefore, be made absolute.
(3.)I, accordingly, make the Rule absolute and set aside not only the order of the appellate court but also the order of the Munsif by which he fixed the compensation to be paid to the Plaintiff opposite party.
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