ASHIM RANJAN DAS Vs. BIMALA GHOSH

JUDGEMENT

(1.) This revision is directed against the judgment and order passed in Misc. Appeal No. 512 of 1989 by the 10th Court of the Additional District Judge, Alipore. The plaintiffs filed a suit for injunction. The disputed property belongs to four brothers, namely, Hrishikesh, Rash Behari, Bibhuti and Nanilal. Hrishikesh purchased 1/5th share of Nanilal by virtue of a deed dated 21.1.69. Hrishikesh died on 10.4.75 leaving behind him the plaintiff's in the suit as his legal heirs and successors. Rashbebari died leaving four sons and two daughters. Bibhuti Ghosh is alive. The disputed property is an undivided family dwelling house of the plaintiffs and other co-sharers. Bibhuti transferred his interest by virtue of an Indenture of lease dated 19.6.89 in favour of the defendant - Dream Land Apartments. Similarly, the heirs of Rashbehari transferred their interest by virtue of a deed of lease on the same date in favour of the defendant. Both these deeds were intended to lease out the shares of those co-sharer for a period of 999 years. About a month before this long term lease a monthly tenancy was created in favour of the lessee and possession of the leasehold property was delivered to him. The plaintiffs in essence filed the suit under section 44 of the Transfer of Property Act seeking to restrain the lessee from interfering with the possession of the plaintiffs. The trial Court refused to grant any ad interim injunction. The court of appeal below entertained an appeal against the order of refusal of the ad interim injunction. This is the instant appeal under review. During the pendency of the appeal, the plaintiffs pled a petition before the court of appeal below for an ad interim injunction. The court of appeal below, however, disposed of the Misc. Appeal and granted ad inferior injunction restraining the defendant from entering into joint possession with the plaintiffs.

(2.) Mr. Roychowdhury, appearing for the defendant petitioner, takes a very preliminary point to impeach the judgment of the court of appeal below. His first contention is that in order to grant an ad interim injunction the court must take notice of the provision under Order 39 Rule 3 C.P. Code. No ad interim order of injunction shall be granted without assigning reasons therefor. In support of his contention, he very much relies upon the decision in M/s. Kakkad Sales Agency vs. Om Prokas Jaluka, 90 CalWN 194. The proposition laid down in paragraphs 32 and 34 can by no means be doubted. Rule 3 contemplates that the court can grant injunction only when the court is satisfied that the object of granting injunction shall be defeated by the delay unless injunction is granted. Proviso lays down that in granting injunction the court shall record reasons. We must not overlook the legislative intent behind this provision. The whole intention is that the court will not by an ex carte Order prejudice the interest of a party who is not before the court unless the Court finds that the issue of ad interim injunction is indispensible. That is all the more reason why the Legislature requires the court to record reasons for granting an ad interim injunction. In the instant case, the matter was not dealt wraith. ex parte. On the contrary, the petitioner had filed a petition of objection in the court of appeal below against the plaintiffs' petition for ad interim injunction filed in the court of appeal below. Evidently, therefore, the parties were before the court and the court had opportunity to hear both the sides to pass the order now challenged before me. This is not a case where the court was passing an ex parte order. The provision contained in Rule 3 or Order 39 C.P.C. should not bc mechanically followed. The legislative intent and purpose must be noticed. In the instant case, there is no prejudice of the defendant since he sought to make out his case by filing his objection and made all his submissions before the court of appeal below which passed a contested order. In my opinion, the argument of Mr. Roychowdhury on this score is bound to fail.

(3.) The second grievance of Mr. Roychowdhury is that there was no urgency to pass an interim order. I am unable to subscribe the view expressed by Mr. Roychowdhury, The members of an undivided family are protected under the law to maintain their privary. If a stranger seeks to interfere with the privacy the members will naturally require an urgent protection. No stranger can be permitted to pierce the veil of that protection. That is the urgency in this case.