Gauhati High Court
Page No.# 1/13 vs Pawan Agarwalla (Kanoi) And 6 Ors B on 24 February, 2025
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/13
GAHC010062162024
2025:GAU-AS:1942
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : FAO/52/2024
SITA DEVI KANOI AND ANR
W/O SRI SHYAMLAL AGARWALLA (KANOI) RESIDENT OF NEW MARKET,
NEAR ASSAM SALOON, PO AND DIST DIBRUGARH, ASSAM
2: SRI RAJESH KUMAR KANOI
S/O SRI SHYAMLAL AGARWALLA (KANOI)
RESIDENT OF NEW MARKET
NEAR ASSAM SALOON
PO AND DIST DIBRUGARH
ASSA
VERSUS
PAWAN AGARWALLA (KANOI) AND 6 ORS B
S/O LATE JAGADISH PRASAD AGARWALLA RESIDENT OF NEW MARKET,
NEAR ASSAM SALOON, PO AND DIST DIBRUGARH, ASSAM
2:SRI BIKASH AGARWALLA (KANOI )
S/O LATE JAGADISH PRASAD AGARWALLA (KANOI)
RESIDENT OF NEW MARKET
NEAR ASSAM SALOON
PO AND DIST DIBRUGARH
ASSAM
3:SRI AMIT AGARWALLA (KANOI )
S/O LATE JAGADISH PRASAD AGARWALLA (KANOI)
RESIDENT OF NEW MARKET
NEAR ASSAM SALOON
PO AND DIST DIBRUGARH
ASSAM
4:SRI SHYAMLAL AGARWALLA (KANOI )
S/O LATE JOHARMAL PRASAD AGARWALLA (KANOI)
RESIDENT OF NEW MARKET
Page No.# 2/13
NEAR ASSAM SALOON
PO AND DIST DIBRUGARH
ASSAM
5:MS. SANGITA KANOI
D/O SHYAMLAL PRASAD AGARWALLA (KANOI)
RESIDENT OF NEW MARKET
NEAR ASSAM SALOON
PO AND DIST DIBRUGARH
ASSAM
6:SRI SANJAY KANOI
S/O SHYAMLAL PRASAD AGARWALLA (KANOI)
RESIDENT OF NEW MARKET
NEAR ASSAM SALOON
PO AND DIST DIBRUGARH
ASSAM
7:MS. SEEMA KANOI
D/O SHYAMLAL PRASAD AGARWALLA (KANOI)
RESIDENT OF NEW MARKET
NEAR ASSAM SALOON
PO AND DIST DIBRUGARH
ASSA
Advocate for the Petitioners : Mr. S. K. Goswami, Advocate
Advocate for the Respondents : Mr. S. C. Keyal, Advocate
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
Date of Hearing : 24.02.2025
Date of Judgment : 24.02.2025
JUDGMENT AND ORDER (ORAL)
Heard Mr. S. K. Goswami, the learned counsel appearing on
behalf of the appellants in FAO No.52/2024 and the petitioners in
Page No.# 3/13
CRP(IO) No.118/2024. Mr. S. C. Keyal, the learned counsel
appears on behalf of the respondents in both the proceedings.
2. Both the matters are interconnected and as such taken up
together for disposal.
3. The respondents herein had filed a suit being Title Suit
No.58/2023 seeking a declaration that the defendant No.1 is the
owner of the premises as described in Schedule-A which includes
the suit land and described in Schedule-B to the plaint;
declaration that the plaintiffs are the coparceners of the
defendant No.1 along with the defendant Nos.3 to 7 having right,
title and interest with respect to the properties of the defendant
No.1; declaration that forming of a partnership vide the Deed of
Partnership dated 15.12.2003 and Deed of Dissolution of the
Partnership firm dated 05.01.2004 under the name and style of
Bhadridas Pannalal by the defendant Nos.9 & 11 are illegal,
inoperative and liable to be cancelled; declaration that the
defendant Nos.9 & 11 were never the owners of the premises as
described in Schedule-A which includes the suit land as described
in Schedule-B and they have no right, title and interest over the
same and further, the defendants have no right to make
construction over the suit land and construction made so far is
illegal and needs to be demolished; declaration that the
recording of the name of the defendant No.1 as partnership firm
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and thereafter recording the names of the defendant Nos.9 & 11
in the revenue records and in the municipal record with respect
to the suit land and the premises of Schedule-A are illegal,
unlawful, unconstitutional, and as such, liable to be cancelled
and the insertion of the defendant No.1 in the revenue records
and the municipal records as owner of the suit land and premises
of Schedule-A; declaration that the defendant Nos.9 & 11 or their
legal heirs have no right and authority to enter into and
negotiate for the sale and/or transfer the suit land as described
in Schedule-B and the illegal construction standing thereon or
any part thereof and/or doing any act prejudicial to the interest
of the plaintiffs over in respect of the same and/or part thereof ;
preliminary decree for partition; appointment of receiver;
permanent injunction restraining the dependents, their heirs,
representatives, attorneys, workers, agents including persons
working under them from making any construction of the suit
land and prohibiting them from
transferring/alienating/mortgaging/leasing etc. of the suit land as
described in Schedule-B thereto or the illegal construction raised
thereon or any part thereof and doing any act prejudicial to the
interest of the plaintiffs; permanent mandatory injunction to
dismantle the legal construction made over the suit premises etc.
The said suit was registered and numbered as Title Suit
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No.58/2023.
4. Along with the said suit, the plaintiffs also filed an
application seeking ad-interim temporary injunction restraining
the opposite parties, their representatives, attorneys, workers
etc. from making any construction over the suit land and further
prohibiting them from transferring/alienating/mortgaging/ leasing
etc. of the suit land as described in Schedule-B or the illegal
construction raised thereon or any part thereof and doing any act
prejudicial to the interest of the petitioners/plaintiffs and also
temporary mandatory injunction to dismantle the illegal
construction made over the suit premises. The said injunction
application was registered and numbered as Misc.(J) Case
No.64/2023.
5. Pursuant to the filing of the suit as well as the injunction
application, the learned Trial Court vide an order dated
09.05.2023 passed an ex-parte injunction order thereby directing
the parties to maintain status-quo till the next date with
reference to the construction over the suit land, i.e. Schedule-B
land thereby fixing 07.06.2023 for SR/written objection.
6. On the next date, i.e on 07.06.2023, the defendants in the
suit had filed their written objection to the injunction application.
By an order dated 07.06.2023, the status-quo order dated
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09.05.2023 was extended and fixed 19.06.2023 for hearing. It is
further seen that on 19.06.2023, the plaintiffs filed certain
applications for requisitioning of certain records. On the very
date, the defendants who are the petitioners herein had also
filed an application under Order XXXIX Rule 4 of the Code of Civil
Procedure, 1908 (for short, 'the Code') for vacating the status-
quo order passed on 09.05.2023.
7. The learned Trial Court vide an order dated 13.10.2023
instead of disposing of the injunction proceedings, rejected the
application filed by the petitioners herein for vacating the status-
quo order dated 09.05.2023 on the ground that the said
application cannot be decided without hearing the final argument
in the injunction proceedings. It is further seen that the learned
Trial Court vide another order dated 20.12.2023 directed the
District Commissioner, Dibrugarh for production of various
documents, i.e. the application, affidavit, permission
No.DRS.1/2000/1291 dated 06.11.2003 from the Office of the
District Commissioner, Dibrugarh and further extended the
status-quo order passed on 09.05.2023 and fixed 02.01.2024 for
report.
8. Mr. S. K. Goswami, the learned counsel appearing on behalf
of the appellants in FAO No.52/2024 and the petitioners in
CRP(IO) No.118/2024 submitted that when there is an ex-parte
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injunction is passed, the statutory mandate imposes an
obligation that the said injunction application ought to have been
disposed of within a period of 30 days. The learned counsel
submitted that the learned Trial Court, on the other hand,
against the well settled principles of law had in fact converted
the injunction proceedings into a mini-trial. The learned counsel
submitted that for grant of an injunction, the plaintiff/the
petitioner has to show on the basis of affidavit or otherwise that
the plaintiff/petitioner has been successful in satisfying the three
cardinal principles for grant of an injunction. It is the submission
of the learned counsel for the Appellants that the learned Trial
Court instead of deciding the injunction proceedings has
converted the injunction proceedings to a mini-trial by calling for
certain documents. The learned counsel for the Appellants
further submitted that the very calling for the documents by the
plaintiffs/the petitioners would show that sans those documents
there is no ground should be sufficient enough for grant of an
injunction.
9. Per contra, Mr. S. C. Keyal, the learned counsel appearing on
behalf of the respondents submitted that the respondents herein
have made certain transfers which were absolutely illegal. These
transfers should not have been made taking into account that
the defendant No.1 is an HUF entity and by converting it into a
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partnership, the defendant Nos.9 & 11 had transferred the same
without having any right. He submitted that these very
documents are necessary for a proper adjudication of the
injunction application, and as such, the Trial Court was justified
in calling for those documents and extending the status-quo
order dated 09.05.2023. He further submitted that the learned
Trial Court is still in session of the injunction proceedings and as
such it would not be proper at this stage for this Court to
continue with a parallel injunction proceedings.
10. I have heard the learned counsels appearing on behalf of
the parties. From a perusal of the materials on record, it
transpires that the injunction application being Misc.(J) Case
No.64/2023 is still pending disposal before the learned Trial
Court. Under such circumstances, it would not be proper on the
part of this Court to decide on the competing claims in respect to
whether the respondents herein who are the petitioners in the
injunction proceedings have made out a case for grant of an
injunction.
11. Be that as it may, it is also well settled proposition of law
that while deciding an injunction application, the learned Trial
Court ought to have decided the same on the basis of materials
which is already available on record. If such materials are not
available and sans those materials a case for grant of an
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injunction is not made out, the learned Trial Court cannot convert
the injunction proceedings to a mini-trial. In that respect, it
would be profitable to refer the judgment of the Supreme Court
in the case of Anand Prasad Agarwala vs. Tarkeswar Prasad &
Others, reported in (2001) 5 SCC 568. Paragraph No. 6 of the
said judgment is reproduced below:-
"6. It may not be appropriate for any court to hold a mini-trial at
the stage of grant of temporary injunction. As noticed by the
Division Bench that there are two documents which indicated that
there was prima facie case to be investigated. Unless the sale
certificate is set aside or declared to be a nullity, the same has
legal validity and force. It cannot be said that no right could be
derived from such certificate. Secondly, when the contesting
respondents were in possession as evidenced by the record of
rights, it cannot be said that such possession is by a trespasser.
The claim of the contesting respondents is in their own right. The
decisions referred to by the learned counsel for the appellant are
in the context of there being no dispute as to ownership of the
land and the possession was admittedly with a stranger and
hence temporary injunction is not permissible. Therefore, we are
of the view that the Division Bench has very correctly appreciated
the matter and come to the conclusion in favour of the
respondents. In these circumstances, we dismiss these appeals.
We may notice that the time-bound directions issued by the
Division Bench will have to be adhered to strictly by the parties
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concerned and the suits should be disposed of at an early date
but not later than six months from the date of the communication
of this order."
The above quoted judgment clearly shows that an
injunction proceedings cannot be converted into a mini-trial. In
the present proceedings, the learned Trial Court in connection
with the injunction proceedings and further while disposing of
the application filed under Order XXXIX Rule 4 of the Code vide
order dated 13.10.2023 observed that application is premature
on the ground that the injunction proceedings can only be
disposed of after hearing final arguments. It is difficult to
comprehend as to why the injunction proceedings could not be
heard and disposed off, that too when the statutory mandate is
to dispose of injunction proceedings when an ad-interim ex-parte
injunction is passed within 30 days.
12. It is further relevant to observe that the learned Trial Court
vide the order dated 20.12.2023 called for certain documents
and further extended the order of status-quo dated 09.05.2023.
The calling of the documents at the stage of an injunction
proceedings, more particularly for the purpose of deciding an
injunction proceedings in the opinion of this Court amounts to an
exercise of powers in terms with Order XIII Rule 10 of the Code
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which is at the stage of trial depending upon issues being
framed, whether it is required or not. At the cost of repetition,
the learned Trial Court was required to decide the injunction
proceedings on the basis of the materials before it.
13. Be that as it may, this Court would not like to interfere with
the order dated 20.12.2023 for calling of the documents, but it is
the opinion of this Court that the learned Trial Court ought to
decide the injunction application on merits on the basis of the
documents which are already available on record.
14. This Court is further of the opinion that taking into account
that there is an ex-parte injunction which was passed on
09.05.2023, it is the bounded duty of the learned Trial Court to
dispose of the same at the earliest and preferably within 30 days.
Further to that, for the reasons above mentioned, the order
dated 13.10.2023 passed in disposing of the application under
Order XXXIX Rule 4 of the Code is interfered with and the said
application is restored to the file of the learned Trial Court.
15. Considering the above, this Court disposes of the instant
Appeal as well as the Revision Application with the following
observations and directions:-
(i) The order dated 20.12.2023 passed in Petition
No.7504/2023 is not interfered with in so far as calling for
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the documents as sought for by the plaintiffs. Be that as it
may, this Court directs the learned Trial Court to decide the
injunction proceedings on the basis of the materials
available on records.
(ii) This Court directs the learned Trial Court to dispose of
the injunction application being Misc.(J) Case No.64/2023 at
the earliest. It is seen from the records that this Court had
stayed the further proceedings of Misc.(J) Case No.64/2023.
The said order stands vacated and the parties herein are
directed to appear before the learned Trial Court on
05.03.2025.
(iii) The learned Trial Court is further directed to dispose of
the said injunction proceeding taking into account the
business of the Court and fix a date for hearing. This Court
further directs that the learned Trial Court shall make all
endeavors to dispose of the said injunction application by
01.04.2025.
(iii) This Court further observes that the order dated
13.10.2023 by which the application filed under Order
XXXIX Rule 4 of the Code is interfered with and the learned
Trial Court is directed to take into consideration the said
application filed by the defendants under Order XXXIX Rule
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4 of the Code while disposing of the injunction proceedings
being Misc.(J) Case No.64/2023.
JUDGE
Comparing Assistant
