Nawal Kishore Khowala vs Kalyan Kumar Khowala
2023 Latest Caselaw 4450 Jhar

Jharkhand High Court

Nawal Kishore Khowala vs Kalyan Kumar Khowala on 7 December, 2023

   IN THE HIGH COURT OF JHARKHAND AT RANCHI
                       M.A. No.268 of 2023
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1. Nawal Kishore Khowala, S/o Late Murlidhar Khowala, R/o Nearby F-52/7, Karunamoyee Housing Estate, Tank No. 10, Salt Lake City, Bidhannagar, P.O. & P.S. - Bidhannagar, Kolkata- 700091 (West Bengal).

2. Dr. Avinash Kumar, S/o Jayshankar Prasad Singh, R/o Present Care Diagnostics, Castair's Town, Deoghar, P.O., P.S., Subdivision and District - Deoghar (Jharkhand).

3. Dr. Sugandha Priyadarshi, W/o Dr. Avinash Kumar, R/o Present Care Diagnostics, Castair's Town, Deoghar, P.O., P.S., Subdivision and District - Deoghar (Jharkhand).

4. Shrabhan Kumar Roy, S/o Yogendra Nath Ray, Sakin Karnibagh, Mahalakshmi Nagar, Deoghar, P.O., P.S., Subdivision and District

- Deoghar (Jharkhand).

.... .... .... Appellants Versus Kalyan Kumar Khowala, S/o Late Murlidhar Khowala, R/o CJ-246, Salt Lake City, Sector-2, P.O. & P.S. - Bidhannagar, Kolkata, West Bengal-700091 (West Bengal).

.... .... .... Respondent(s)

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Coram :HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA

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For the Appellants : Mr. Prashant Pallav, Advocate.

Ms. Tauseef Jawed, Advocate For the Respondent(s) : Mr. Ajit Kumar, Sr. Advocate Mr. Ankit Kumar, Advocate

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Judgment

C.A.V. On : 29th November 2023 Pronounced On : 7th December 2023

The present miscellaneous appeal has been preferred under Order XLIII Rule 1(r) read with Section 104 of the Code of Civil Procedure, 1908 for setting aside the order dated 08.05.2023 passed by learned court of Civil Judge (Senior Division)-VII, Deoghar in Original Suit No. 03/2022, whereby and whereunder the court below has dismissed the petition filed by the appellants under Order XXXIX Rule 4 C.P.C. for quashing the order of status quo earlier passed in the above captioned suit on 18.07.2022.

2. The above original suit was instituted by the plaintiff / respondent seeking following reliefs:-

(i) For a decree of declaration that the registered agreements for Sale Deeds No. 175, 176, 177 executed by the defendant no. 1 in favour of Sarban Kumar Ray, Dr. Avinash

Kumar and Dr. Sugandha Priyadarshi all are illegal fraudulent void, ab-initio and inoperative under the law.

(ii) For a decree of permanent mandatory injunction restraining the defendants from going over the suit property and illegally executing any sale deed with respect to the suit property.

(iii) For the cost of the suit.

(iv) For any other relief and reliefs for which the plaintiff may be deemed entitled to.

3. The plaintiff / respondent has filed an application under Order XXXIX Rule 1 & 2 read with Section 151 of C.P.C. before the learned trial court on 03.01.2022. The defendants / appellants also filed their respective reply and after hearing both the parties at length, the learned trial court vide order dated 18.07.2022 directed both the parties to maintain status quo in respect of suit property.

4. The order was not challenged by filing an appeal before the competent court, rather a petition under Order XXXIX Rule 4 C.P.C. was filed on 15.02.2023 before the learned trial court for setting aside the order of status quo passed earlier, which was disposed off as dismissed with direction to the plaintiff to conclude his evidence within six months from the date of framing of issues otherwise the status quo order automatically vacated and case was fixed for settlement of issues, which has been assailed in this miscellaneous appeal.

5. Learned counsel for the appellants has vehemently argued that the mere agreement to sale of immovable property does not confer any right to the transferee and cannot be challenged. The appellants are the co-sharers of the suit property, which was duly partitioned by metes and bounds through a deed of voluntarily settlement between the parties dated 02.11.2001, which was notorized at Kolkata (Annexure-2 to the memo of appeal). Therefore, the plaintiff has no right to challenge the agreement to sale or even execution of sale deed by the appellants to any person whatsoever.

6. It is further submitted that while deciding the original application under Order XXXIX Rule 1 & 2 read with Section 151

of C.P.C. all materials were brought on record by the appellants and the concerned trial court has also recorded findings in the order dated 18.07.2022 that there is nothing on record to prima facie establish the case of the plaintiff that defendant no. 1 has desired to execute the sale deed and register the same. The balance of convenience and irreparable loss to the plaintiff were also negated. The order of status quo has been passed simply on the inadvertent submission of the defendants /appellants that they are not intended to execute the sale deed of the suit property. Thereafter, a petition under Order XXXIX Rule 4 C.P.C. was filed on 15.02.2023 to set aside the order dated 18.07.2022 and vacate the order of status quo, which was passed in mechanical manner, but the same has been illegally dismissed causing prejudice to the appellants. The impugned order is absolutely illegal and passed in contravention of golden principles established for granting or rejecting the interim injunction. Hence, the impugned order is fit to be set aside and appeal may be allowed.

7. Per contra, learned counsel for the respondent / plaintiff has argued that the order of "status quo" is in the ends of justice for preserving the suit property from wastage and alienation at the hands of appellants without any partition. The learned court below with a view to prevent the multiplicity of proceedings and expedite the trial of the case, has passed the impugned order, which is not prejudicial to the interest of the appellants. Moreover, the impugned order itself reflects that the learned trial court is conscious to decide the rights and dispute between the parties within stipulated time. The appellants are adamant to dispose of the suit properties and when they asserted before the concerned trial court that they are not intending to sell the suit property then order of status quo was passed. No appeal under Order XLIII Rule 1 (r) C.P.C. was filed till the lapse of one year by the present appellants rather they have filed a petition under Order XXXIX Rule 4 C.P.C. to set aside the earlier order of status quo without satisfying the grounds mentioned in the said rule. In this view of the matter also the present appeal is not maintainable and is fit to be dismissed.

8. The relevant provisions of the Code of Civil Procedure, 1908 is reproduced below:-

Order 39 Rule 1 & 2 C.P.C. reads as follows:-

Order-XXXIX, Rule-1. Cases in which temporary injunction may be granted.- Where in any Suit it is proved by affidavit or otherwise--

(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or

(b) that the defendant threatens, or intends, to remove or dispose of his property with a view to defraud his creditors,

(c) that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit as the court thinks fit, until the disposal of the suit or until further orders.

Order-XXXIX, Rule-2. Injunction to restrain repetition or continuance of breach.- (1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right.

(2) The court may by order grant such injunction, on such terms, as to the duration of the injunction, keeping an account, giving security, or otherwise, as the court thinks fit.

Order XXXIX Rule 4 C.P.C. reads as follows:-

Order XXXIX Rule 4. Order for injunction may be discharged, varied or set aside.- Any order for an injunction may be discharged, or varied, or set aside by the court, on application made thereto by any party dissatisfied with such order:

Provided that if in an application for temporary injunction or in any affidavit supporting such application, a party has knowingly made a false or misleading statement in relation to a material particular arid the injunction was granted without giving notice to the opposite party, the court shall vacate the injunction unless, for reasons to be recorded, it considers that it is not necessary so to do in the interests of justice:

Provided further that where an order for injunction has been passed after giving to a party an opportunity of being heard, the Order shall not be discharged, varied or set aside on the application of that party except where such discharge, variation or setting aside has been necessitated by a change in the circumstances, or unless the court is satisfied that the order has caused undue hardship to that party.

9. From the aforesaid provisions of Order XXXIX Rule 4 C.P.C., it is crystal clear that the order for injunction may be discharged, varied or set aside, if the parties seeking such relief satisfies the court that the other party is knowingly made a false and misleading statement in relation to a material particularly arid the injunction was granted without giving notice to the opposite party or where an order for injunction has been passed after hearing both the parties, the injunction order shall not be discharged, varied or set aside unless the court is satisfied about the change of the circumstances are undue hardship to that property.

10. In the instant case, in strict sense, injunction order has not been passed, but in order to preserve the suit property from alienation during pendency of the litigation, order of status quo has been passed, which is not likely to prejudice the interest of any of the parties to the suit, especially when the court itself has put a restriction of six months for taking the evidence of plaintiff from the date of settlement of issues and the case is running at the stage of settlement of issues.

11. It is needless to say that at the time of passing any order of injunction, the court is not oblige to go into the merits of the case, which shall be determined after the conclusion of the trial.

12. In view of the above discussion and reasons, I do not find any valid reason to interfere with the impugned order and no merits in this appeal, which stands dismissed.

(Pradeep Kumar Srivastava, J.)

High Court of Jharkhand at Ranchi Dated : 07/12/2023 Sunil/NAFR