Gauhati High Court
Bhaskar Baishya vs South Guwahati Consumers Co ... on 25 October, 2021
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GAHC010017942021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP(IO)/27/2021
BHASKAR BAISHYA
S/O SRI HANGSHA NATH BAISHYA, R/O UDAYACHAL, CHRISTIANBASTI,
GUWAHATI 781005, DIST. KAMRUP (M), ASSAM.
VERSUS
SOUTH GUWAHATI CONSUMERS CO OPERATIVE STORES LTD
HAVING ITS REGISTERED OFFICE AT G.S. ROAD, A.B.C. (CITY BUS
STOPPAGE), DISPUR, GUWAHATI 5, DIST. KAMRUP (M), ASSAM,
REPRESENTED BY THE SECY. OF THE SOCIETY.
Advocate for the Petitioner : MR. R K BHUYAN
Advocate for the Respondent : MR H K SARMA
BEFORE
HON'BLE MR. JUSTICE DEVASHIS BARUAH
25.10.2021
Heard Mr. R.K. Bhuyan, the learned counsel appearing for the petitioner as well as Mr.
H. Sarma, the learned counsel appearing for the respondents.
By way of the instant Revision application, the petitioner have challenged the order
dated 10.12.2020 passed by the Civil Judge No. 2, Kamrup (M) at Guwahati in Misc (J) Case
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No. 364/2020, arising out of Title Appeal No. 29/2015.
For the purpose of disposal of the instant proceedings, it is relevant to take note of the
following material facts. The respondent as plaintiff had instituted the suit against the
petitioner for ejectment. The said suit was registered and number as Title Suit No. 549/2012.
The petitioner as defendant filed his written statement. The Court of the Munsiff No. 2
at Guwahati vide a judgment and decree dated 17.04.2015 had dismissed the suit of the
plaintiff. Being aggrieved the respondent as appellant preferred an appeal being Title Appeal
No. 29/2015 challenging the judgment and decree dated 17.04.2015. The said appeal was
registered numbered as Title Appeal No. 29/2015.
During the pendency of the said appeal, it is the case of the petitioner that the
respondent herein is disturbing the possession of the petitioner as well as have put a lock on
the entrance of the tenanted premises for which the petitioner filed an application under
Order XXXIX Rule 1 and 2 read with Section 151 of the Court of Civil Procedure, 1908 as well
as Section 39 of the Specific Relief Act, 1969 for grant of both prohibitory as well as
mandatory injunction till the disposal of the appeal. The said application was registered
numbered as Misc (J) Case No. 364/2020. The respondent herein filed its written objection,
objecting to the prayer made by the petitioner in its application seeking injunction.
It has been brought to the notice of this Court that 10.12.2020 was the date fixed for
hearing of the injunction application and on the said date, the counsel for the respondent
while submitting the hazira had mentioned in the hazira itself that the respondent who is the
opposite party in the injunction application would like to adduce evidence in Misc (J) Case No.
364/2020. The First Appellate Court vide an order dated 10.12.2020 permitted the
respondent to adduce evidence on the ground that as the injunction application is for
mandatory injunction the opposite party (respondent herein) should be given an opportunity
by way of adducing evidence etc and thereby permitted the respondent herein to adduce
evidence.
The petitioner being aggrieved by the said order dated 10.12.2020 has approached
this Court by filing the instant application under Article 227 of the Constitution of India.
I have heard the counsel for the parties as well as also the perused the materials on
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record including the impugned order dated 10.12.2020, whereby the First Appellate Court
granted an opportunity to the respondent to adduce evidence.
The power to grant injunction flows from the provision of Specific Relief Act, 1963 and
is regulated by the provision of the Court of Civil Procedure, 1908 and more particularly
section 94(c) read with Section XXXIX of the Code of Civil Procedure.
For the purpose of deciding the instant dispute it may be relevant to take note of that
Section 37 of the Specific Relief Act, 1963 stipulates that temporary injunction are such which
are to continue until a specific time or until further orders of the Court and they may be
granted at any stage of the suit and is regulated by the Court of Civil Procedure. Section
94(c) stipulates that the Court in order to prevent the ends of justice from being defeated is
empowered to grant temporary injunction in the manner prescribed. The prescription in terms
of Section 94(c) can be seen from the provision of Order XXXIX which stipulates the manner
in which a temporary injunction and interlocutory Orders is to be granted.
It is trite principle of law that while granting of a temporary injunction the enquiry
which is required to be made by the Court is on a very limited sphere i.e. to see as to
whether the parties seeking the injunction has a prima facie case; in whose favour the
balance of convenience is and whether the granting or non-granting of injunction would
cause an irreparable injury. It must not also be lost sight of that for granting temporary
mandatory injunction it is the requirement of law that satisfaction of the Court has to be more
than a prima facie unlike what is required for prohibitory injunction.
Be that as it may, it is no longer res-integra that the Court while deciding on injunction
proceedings should not covert the proceeding to a mini trial. It is also necessary that the
temporary injunction application needs to be disposed of as expeditiously as possible
inasmuch as delay in disposal of the temporary injunction application may result irreparably
effacing the requests of the party seeking injunction.
Under such circumstances, temporary injunction application are normally decided on
the basis of affidavits and it is only in exceptional cases when on causes shown and reasons
recorded that a permission to adduce evidence in an injunction proceedings can be permitted.
In the instant case a perusal of the hazira enclosed in Annexure-11 to the petition would go
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to show that on the date of hearing of the injunction application the counsel for the
respondents without assigning any ground reason sought the permission to adduce evidence
in the injunction proceedings. The further perusal of the impugned order would also go to
show that the First Appellate Court without assigning any reason permitted the respondents
to adduce evidence without taking into consideration that the injunction proceedings are
required to be expeditiously disposed of and it is only in exceptional cases and that too far
reasons to be recorded, parties may be permitted to be adduce evidence.
In that view of the matter, the impugned order clearly is unreasonable, irrational as
well as in violation to the norms of adjudication of an injunction proceedings. Consequently,
the said impugned order is set aside. The Revision Petition accordingly stands disposed of
and the interim order passed earlier if any stands vacated.
As the matter pertaining to the injunction proceedings is pending since also a year, it
would be in the interest of justice if the First Appellate Court would decide the said injunction
application expeditiously within a period of 30(thirty) days from the date of appearance for
the parties before the Court. The parties are directed to appear before the Court on
15.11.2021. It is needless to mention that the respondent is always liberty to adduce
evidence before the Appellate Court provided its meets the parameters as stipulated in Order
XLI Rule 27 of the CPC.
JUDGE
Comparing Assistant
