D.K.Seth, J. - (1.) The wife-appellant has preferred this appeal against order No. 19 dated 22nd of December, 1999 passed by the learned Additional District Judge, First Court, Alipore, in Matrimonial Suit No. 22 of 1999 granting an injunction restraining the wife-appellant from making any attempt of forceful entry in her matrimonial house till the disposal of the matrimonial suit. Submission on behalf of the Appellant:
(2.) Mr. Sahu, learned counsel for the appellant, submits that there cannot be an injunction restraining one of the spouse from entering into the matrimonial house of which she becomes a part, relying on paragraph 31 of the decision in Valsamma Paul (Mrs.) v. Cochin University & Ors., reported in (1996)3 SCC 545. He had also relied on Pinckney v. Pinckney, reported in (1966)1 All ER 121 in order to contend that one of the spouse cannot be ousted from the house. Therefore, the impugned order appealed against cannot be sustained. Relying on the decision in Chitra Sen Gupta v. Dhruba Jyoti Sen Gupta, reported in 1987(1) CHN 450, he pointed out that Order 39 Rules 1 and 2 of the Code of Civil Procedure (Code) has no manner of application in respect of a matrimonial proceeding where property is not involved. Though, however, section 151 could be resorted to for the purpose of granting injunction in appropriate cases. He had further contended that in the present case, the allegation that has been sought to be made does not make out sufficient cause for grant of injunction. He also contended that the injunction has been granted on the basis of the allegations made in paragraph 27 of the application under Order 39 Rules 1 and 2 of the Code of Civil Procedure. This was sought to be affirmed as true to the knowledge while the statement runs that the incident happened when the deponent was not at home. Relying on the decision in A.K.K. Nambiar v. Union of India & Anr., reported in AIR 1970 SC 652, he contends that the said statement made in paragraph 27 cannot be accepted as supported by affidavit. Therefore, no reliance can be placed thereon for the purpose of granting injunction. Submission on behalf of the respondent:
(3.) The learned counsel for the respondent, on the other hand, contends that Order 19 Rule 3 of the Code provides for the manner in which the affidavit is to be affirmed. According to him, the statements, which are true to the knowledge, are to be stated clearly and properly and those, which are based on belief, are to be supported by grounds on which they are based. Relying on the affidavit affirming the objection to the application under Order 39 Rule 1 and 2 of the Code filed by the appellant, he points out that it has not been properly affirmed. As such, no reliance can be placed thereon. Therefore, on the basis of the statements made in paragraph 27 of the application for injunction, the Court had rightly granted injunction. He relied on the decision in Shivajirao Nilangekar Patil v. Dr. Mahesh Madhav Gosavi and Ors., reported in (1987)1 SCC 227 (paragraph 33). He contended that unless the belief is properly grounded, the same is not admissible, as was held in the said decision. Relying on the decision in Chitra Sen Gupta (supra), he pointed out that even if Order 39 Rule 1 and 2 of the Code cannot be resorted to, still injunction can be granted in an appropriate case under section 151 of the Code as was held in the said decision. He relied further on the decision in Smt. Pratiksha v. Parvin, reported in 2002 Matrimonial Law Reporter 282. He contended that the facts involved in the said case are identical with the one involved in the present case and as such the ratio decided therein squarely applies to the present case. According to him, where even in a matrimonial suit, the property is involved, Order 39 Rule 1 and 2 of the Code can be resorted to. Alternatively, even if Order 30 Rule 1 and 2 of the Code cannot be resorted to, still injunction could be granted under section 151 of the Code. Therefore, according to him, the injunction was rightly granted and the appeal should be dismissed. The learned counsel for the respondent had also relied on section 38 of the Specific Relief Act to contend that if there is an obligation and in discharge of such obligation, a party is bound to do something and if he fails to discharge such obligation, the breach of obligation can be prevented by an order of injunction. He had referred to the definition of "obligation" as provided in section 2 clause (1) of the Specific Relief Act.;