Biresh Chandra Daw & Anr vs Archana Rani Daw & Ors
2022 Latest Caselaw 6772 Cal

 21.09.2022
SL No.9 wt 10
 Court No.8
     (gc)
                              FMAT 265 of 2022
                               CAN 1 of 2022

                           Biresh Chandra Daw & Anr.
                                      Vs.
                            Archana Rani Daw & Ors.

                                      With

                              FMAT 344 of 2022
                               CAN 1 of 2022

                            Archana Rani Daw & Ors.
                                      Vs.
                           Biresh Chandra Daw & Ors.


                              Mr. Aniruddha Chatterjee,
                              Mr. Chayan Gupta,
                              Mr. Anujit Mookherji,
                                  ...for the Appellants in FMAT 265 of 2022.
                              Mr. Rupak Ghosh,
                              Mr. Jayanta Sengupta,
                              Mr. Arnab Dutt,
                                ...for the Respondents in FMAT 265 of 2022

...for the Appellants in FMAT 344 of 2022. Mr. Debnath Ghosh, Mr. Sayantan Chatterjee, Mrs. Debarati Das, ...for the Respondent Nos.9,10 & 11.

By consent of the parties both the appeals and the

connected applications are taken up together and

disposed of by this common order.

The appellant in FMAT 265 of 2022 are the

respondents in a suit filed by the appellant in FMAT 344

of 2022.

The appeal being FMAT 265 of 2022 is directed

against the order dated 22nd June, 2022 passed by the

learned Judge, XIIth Bench, City Civil Court at Calcutta in

T.S. No.1265 of 2022 in connection with an application

filed under Order 39 Rule 1 & 2 read with Section 151 of

the Code of Civil Procedure filed by the

plaintiffs/respondents praying for an order of injunction

restraining the defendant No.1 from acting as sole trustee

and collecting any rent issues and profit of the Shib

Krishna Debuttar Estate and from holding seva puja of

the deities and from managing and administering the Shib

Krishna Debuttar Estate and restraining the defendant

Nos.1 to 5 from interfering with the plaintiff No.1 as

member of family of the settlers to act, administer,

manage and supervise all activities of the Debuttar Estate.

FMAT 344 of 2022 is the appeal preferred by the

plaintiffs against the judgment and order dated 10th

August, 2022 being aggrieved by the order passed by the

learned Judge in refusing to pass an order appointing

Receiver over the said Debuttar Estate.

The appellant preferred an appeal on 7th July, 2022

but the matter could not be heard as the regular Bench

had released the matter and only after assignment this

matter has appeared before this Bench for consideration.

The basis of the claim of the plaintiffs is that the

plaintiff no.1 is eligible to act as sole trustee and Shebait

as the present senior most lineal descendant/member of

the settlor's family to hold the office of Shib Krishna

Debuttar Estate and administer the said Estate in terms

of all the provisions of the deed of dedication/Arpannama

dated 28th April, 1896.

In the suit, the plaintiffs have prayed for a

declaration that senior most lineal descendant/member

irrespective of gender of the family of settlers of the said

estate is entitled to hold the office of the sole trustee of the

Shebait and administer their estate in terms of the

aforesaid deed of dedication. In the suit the plaintiffs are

alleged mismanagement and siphoning of assets by the

respondents.

The application was moved ex parte on 22nd June,

2022. It appears that the plaintiffs earlier filed a suit

under Section 34 of the Indian Trust Act inviting the

Court for a decision on the two several deeds of settlement

being ATA 8 of 2021. However, the said suit was

dismissed as withdrawn on the prayer of the plaintiffs

with liberty to file a civil suit in accordance with law. The

said order was passed on 10th February, 2022. It is not in

dispute that for all the earlier years, the arrangement that

is now sought to be disrupted by the impugned order

continued. It was towards the end of last year only

dispute started. It does not appear from the impugned

order that the learned Trial Judge had really seen the

order dated 10th February, 2022 or conscious of the

earlier litigation that has given rise to the present

litigation in which the impugned order was passed. We do

not find any reflection of the said order in the impugned

order dated 22nd June, 2022. The learned Trial Judge, in

our view, could not have passed an ex parte order having

regard to the order dated 10th February, 2022 where the

petitioners and all the respondents were represented by

their advocate. We are of the view that even if a prima

facie case would have been made out in favour of the

plaintiffs but the balance of convenience and the prejudice

that such an order is likely to cause was not well-

appreciated by the learned Trial Judge in deciding the

said matter ex parte. We assume that he was not aware

of the order dated 10th February, 2022 and proceeded on

the basis that there has been no earlier litigation between

the parties concerning the said issue.

There is no discussion in the impugned judgment

that the plaintiffs was successful in establishing a prima

facie case on the basis of the facts narrated and unless an

ad-interim order is passed it would cause serious

prejudice. It is true that the interim order was for a period

of four weeks but having regard to the nature of the order

it is having a far reaching effect.

The impugned order only narrates the submission

made on behalf of the parties and does not take a prima

facie view that on the basis of the two deeds the plaintiff

no.1 is entitled to hold the office of the sole trustee and

shebait of the said Estate.

Mr. Aniruddha Chatterjee learned Counsel

appearing on behalf of the appellants has submitted that

without a prima facie view being taken in favour of the

plaintiffs as to their rights to function as the sole trustee

the learned trial judge could not have proceed with the

matter and it is not one of such exceptional cases where

the trial court could have exercised its discretionary

power to pass such a drastic order at an ad-interim stage.

Mr. Rupak Ghosh learned Counsel representing the

plaintiffs however, submits that all necessary facts were

taken into consideration by the learned Court before

passing of an ex parte ad interim order. The learned

Counsel further submits that the defendants did not

apply under Order 39 Rule 4 of the Code of Civil

Procedure and the matter could have been disposed of in

the mean time if the defendants were willing to have the

matter disposed of at an early date.

As observed earlier the impugned order was only a

mechanical reproduction of Order 39 Rule 1 without they

are being any discussion even briefly with regard to the

fulfillment of the conditions for an ex parte ad interim

order.

We find the order to be unreasoned. Moreover, we

feel that the said order could not have been mechanically

extended once the appellants appeared before the learned

Trial Court. However, at the same time it could not be

ignored that if the plaintiffs are beneficiaries they have a

right to raise their voice for any act of mismanagement. It

is irrespective of their claim that the plaintiff no.1 is to

represent the Estate as the senior most trustee.

Considering the fact that the status quo ante

continued for several years without any disruption and

having regard to the fact that for few months from now

the Estate may require to hold various Seva pujas

commencing from Durga Puja, we modify the interim

order to the extent that defendant No.1 shall be entitled to

collect rents till the matter is taken up by the learned trial

court. The defendant no.1 shall account for all the

expenses that are likely to be incurred towards the seva

pujas and also render true and faithful account of all the

incomes and expenses of the said Estate upon furnishing

prior copies thereof to the plaintiffs in advance. The

defendants no.1 shall file accounts in the form of an

affidavit in the pending proceeding. The plaintiffs shall be

allowed to participate in the seva puja without prejudice

to their rights and contentions in the pending proceeding.

The appellants in FMAT 265 of 2022 are restrained

from alienating, encumbering and/or creating any third

party interest in respect of the properties of the Estate till

the disposal of the injunction application without the

express leave of the trial court. The appellants shall

include a list of tenants and the income and expenses of

the Estate before the learned Trial Court in the form of an

affidavit as directed on 26th September, 2022 upon prior

service.

On such considerations, we modify the interim

order to the aforesaid extent till the matter is being

considered by the learned Trial Court on the date fixed.

The learned Trial Judge is directed to consider the prayer

for appointment of receiver or a Special Officer on

consideration of the accounts to be disclosed by the

appellants. If the Trial Court is convinced upon disclosers

being made that there has been any mismanagement, it

would be free for the trial Court to pass appropriate order

ensuring that the Durga Puja and other festivals are in no

way affected and also to ensure that rights of the parties

are preserved. It may not be necessary for the trial Court

to dispose of the injunction application on merits on the

date fixed for paucity of time or the prayer for receiver on

the adjourned date but any interim order to be passed

should be a reasoned order upon consideration of the

materials on record.

We make it clear that in deciding the applications

the learned Trial Judge shall not be influenced by the

observations made by us in disposing the appeals.

We have been informed that the said Bench, i.e.

XIIth Bench, City Civil Court at Calcutta is lying vacant.

The Chief Judge, City Civil Court at Calcutta is requested

to assign these applications to a particular Bench so that

the matter can be taken up on the date fixed.

We make it clear that none of the parties shall make

any prayer for adjournment on the date fixed.

Accordingly, both the appeals and the connected

applications are disposed of.

However, there shall be no order as to costs.

A copy of this order shall be forwarded to the Chief

Judge, City Civil Court at Calcutta by the Registrar

Administration (L&OM).

Urgent Photostat certified copy of this order, if

applied for, be given to the parties on usual undertaking.

(Uday Kumar, J.)                        (Soumen Sen, J.)