Page No.# 1/6 vs Raj Sekhar Saha And 3 Ors
2022 Latest Caselaw 3339 Gua

                                                                  Page No.# 1/6

GAHC010084032022




                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                            Case No. : CRP/52/2022

         DIPAK ROY AND 6 ORS
         S/O LATE HARIPADA ROY, C/O NILIMA KAR OF LANE NO. 12, 2ND LINK
         ROAD, SILCHAR, P.O. AND P.S.-SILCHAR, DIST-CACHAR, ASSAM

         2: TINKU MAZUMDER
          S/O LATE HABIBUR RAHMAN MAZUMDER
          R/O GHANIALAL NEAR SAMAYIK PRASANGA NEWS PAPER OFFICE
          SILCHAR
          P.O. AND P.S.-SILCHAR
          DIST-CACHAR
         ASSAM

         3: MUMINUR RAHMAN MAZUMDER @ SANKU MAZUMDER
          S/O LATE HABIBUR RAHMAN MAZUMDER
          R/O GHANIALAL NEAR SAMAYIK PRASANGA NEWS PAPER OFFICE
          SILCHAR
          P.O. AND P.S.-SILCHAR
          DIST-CACHAR
         ASSAM

         4: MANSOOR ALAM MAZUMDER @ MINTU MAZUMDER
          S/O LATE HABIBUR RAHMAN MAZUMDER
          R/O GHANIALAL NEAR SAMAYIK PRASANGA NEWS PAPER OFFICE
          SILCHAR
          P.O. AND P.S.-SILCHAR
          DIST-CACHAR
         ASSAM

         5: MUSTT. SAHANAJ MAZUMDER @ SUSHMITA MAZUMDER
          D/O LATE HABIBUR RAHMAN MAZUMDER
         W/O SUBRATA BHATTACHARJEE
          R/O C/O MR. GURUMUKH SINGH
          17/1A
          MIDDLE ROAD
                                                        Page No.# 2/6

KOLKATA-14
WEST BENGAL

6: ALBERT SAHA @ BISWAJIT SAHA
 S/O LATE NARAYAN CHANDRA SAHA
 R/O HOUSE NO. 6
 SADHANA MANSION
 LANE NO. 5
 2ND LINK ROAD
 P.O. AND P.S.-SILCHAR
 DIST-CACHAR
ASSAM

7: SMTI. JHUMA SAHA @ POMPA SAHA
 D/O LATE NARAYAN CHANDRA SAHA
 R/O HOUSE NO. 6
 SADHANA MANSION
 LANE NO. 5
 2ND LINK ROAD
 P.O. AND P.S.-SILCHAR
 DIST-CACHAR
ASSA

VERSUS

RAJ SEKHAR SAHA AND 3 ORS
S/O SRI SWAPAN SAHA, C/O SWAPAN SHOE HOUSE, CENTRAL ROAD, P.O.
AND P.S.-SILCHAR, DIST-CACHAR, ASSAM, PIN-788001

2:ANABIK GUPTA
 S/O LATE ARUNENDU KISHORE GUPTA @ ARUN KUMAR GUPTA
 R/O PATHERKANDI
VILL-DUHALIA-5
 P.O. AND P.S.-PATHERKANDI
 DIST-KARIMGANJ
ASSAM
 PIN-788724

3:AMIT GUPTA
 S/O LATE ARUNENDU KISHORE GUPTA @ ARUN KUMAR GUPTA
 R/O PATHERKANDI
VILL-DUHALIA-5
 P.O. AND P.S.-PATHERKANDI
 DIST-KARIMGANJ
ASSAM
 PIN-788724

4:ASISH GUPTA
                                                                       Page No.# 3/6

             S/O LATE ARUNENDU KISHORE GUPTA @ ARUN KUMAR GUPTA
             R/O PATHERKANDI
             VILL-DUHALIA-5
             P.O. AND P.S.-PATHERKANDI
             DIST-KARIMGANJ
             ASSAM
             PIN-78872

Advocate for the Petitioner   : MR. D CHAKRABARTY

Advocate for the Respondent : MR. S D PURKAYASTHA (r-2)




                                  BEFORE
                 HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY

                                        ORDER

05.09.2022 Heard Mr. D. Chakrabarty, learned counsel for the petitioners. Also heard Mr. T. J. Mahanta, learned Senior Counsel assisted by Mr. R. Chakravorty, learned counsel for the respondent No. 1 and Mr. S. D. Purkayastha, learned counsel for the respondent No. 2.

2. By this revision petition, the petitioners have assailing the impugned judgment and order dated 14.03.2022, passed by the learned Additional District Judge, FTC, Cachar, Silcahr in Misc. Appeal No. 8 of 2015, whereby the learned Appellate Court dismissed the appeal preferred under Order 43 Rule 1(r) of the Civil Procedure Code, 1908 against the order dated 13.07.2015, passed by the learned Civil Judge No. 2, Cachar, Silchar, in Misc. (J) Case No. 47/2014 arising out of Title Suit No. 85/2014. By the order dated 13.07.2015, the learned trial Court rejected the petition filed under Order 39 Rule 1 and 2, read with Sections 94 and 151 CPC for grant of temporary injunction.

3. The petitioners filed Title Suit No. 85/2014 along with Misc. Case as stated Page No.# 4/6

hereinabove being Misc. Case No. 39/2014 (subsequently renumbered as Misc. Case No. 47/2014). The said suit was for declaration of right, title and interest over the suit premises as a derivative tenant and for permanent injunction. A further declaration was sought in the aforesaid suit to the effect that the plaintiffs/present petitioners are not bound by the judgment and decree passed in Title Suit No. 128/2012 and that decreetal property in Title Suit No. 128/2012 do not cover the Schedule-1 property of the T.S. No. 85/2014.

4. Title Suit No. 128/2012 was preferred by the present respondent No. 1 for declaration of right, title and interest and recovery of possession from proforma defendant No. 7 in Title Suit No. 85/2014.

5. The learned Courts below has declined to pass any injunction order taking note of the fact that by virtue of the Judgment and Decree passed in Title Suit No. 128/2012, the present respondent No. 1 got a registered sale deed executed and got the title transferred on 17.05.2014. The learned Court declined to pass any injunction order on the further ground that a lawful decree has been passed in favour of the present respondent No. 1 and such decree has got executed and therefore, no prima facie case was made in favour of the present petitioners.

6. Dealing with the balance of convenience, both the Courts below came to a finding that as there is already a decree if injunction is passed that will amount to stalling the execution of a decree and therefore, balance of convenience is not in favour of the plaintiffs/present petitioners. Regarding irreparable loss and injury, both the Courts came to a conclusion that it is also goes against the plaintiff/present petitioners inasmuch as the plaintiffs/present petitioners are having efficacious alternative remedy under Order 21 Rule 97 Page No.# 5/6

and 103 of the CPC to resist the decree.

7. The Hon'ble Apex Court in the case of Wander Ltd. Anr. -Vs- Antox India Pvt. Limited reported in 1990 Supp (1) SCC 727 at paragraph 9 held that Usually, the prayer for grant of an interlocutory injunction is considered at a stage when the existence of the legal right asserted by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. The court, at this stage, acts on certain well settled principles of administration of this form of interlocutory remedy which is both temporary and discretionary. The object of the interlocutory injunction, it is to protect the plaintiff against injury by violation of his rights for which he could not adequately be compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The court must weigh one need against another and determine where the "balance of convenience lies".

8. In the case in hand, the right of respondent No. 1 has been crystallized by virtue of a decree by a competent Court and one part of the said decree was also executed by execution of a sale deed and symbolic possessions were also given. Thus prima facie, the right of the respondent No. 1 was crystallized by virtue of the Judgment and Decree passed in Title Suit No. 128/2012. So far relating to the present petitioners, though they claim to be derivative tenants under the tenant of defendant in T.S. No. 128/2012 and they are having efficacious remedy under Order 21 Rule 97 to 103 of CPC to resist or obstruct the decree passed in T.S. No. 128/2012. Rule 101 of Order 21 provides that all Page No.# 6/6

questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives, can be adjudicated by the executing Court itself.

9. In that view of the matter, this Court is of the considered opinion that the learned trial Court has not committed any error not to say any jurisdictional error while passing the impugned order.

9. Taking note of the entire facts, this Court is of the opinion that this is not a fit case, where this Court shall entertain the present petition in exercise of its revisional jurisdiction. Accordingly, the revision petition is dismissed more particularly in view of settle position of law laid down in Antox (supra). Interim order passed earlier stands vacated.

10. Though the learned counsel for the respondents has raised the maintainability of the T.S. No. 85/2014, placing reliance on the provision of Order 21 Rule 101 of the CPC, this Court is not inclined to go into that aspect of the matter inasmuch as the issue whether the suit filed by the present petitioner is maintainable or not, is not before this Court and the same can be decided by the learned trial Court in the suit itself.

With the aforesaid observation, this revision petition is dismissed.

JUDGE

Comparing Assistant