UMA SHANKAR SHA Vs. ADDYA PROSAD PATHAK

JUDGEMENT

(1.) The facts need not be elaborated upon or dealt with in any great detail in view of the order proposed to be passed. The grievance of the petitioning defendants is that despite the suit being found to be not maintainable by the trial Court, in the appeal arising from such order an interlocutory injunction has been issued without the appellate Court recording even a prima facie finding as to the maintainability of the suit or the error that may have been committed by the trial Court in finding the suit to be not maintainable.

(2.) The petitioners urge several grounds, including that a previous suit of the year 1996 on the same cause of action had been dismissed for default and the application for revival thereof was also dismissed. The petitioners say that a compromise decree of the year 1996 in a suit to which the plaintiffs we not parties has been sought to be assailed in the year 2014 without any or adequate explanation for the inordinate delay. The petitioners suggest that on a meaningful reading of the plaint relating to the present suit, it would be evident that the plaint relating to the suit of the year 1996 has been regurgitated with the addition of a belated challenge to the compromise decree.

(3.) Without going into the several issues raised, it appears that the appellate Court entered into the merits of the plaintiffs' claim without expressing any opinion--even prima facie--as to the maintainability of the suit. If an injunction is to be granted upon prima facie consideration of the claim, the issue of maintainability has to be assessed as part of the same consideration. This is even more important when one Court has found the suit to be not maintainable and an injunction application on merits is considered by the appellate Court. It would not do for the appellate Court to gloss over the aspect of maintainability and adjudicate upon the material disputes between the parties without rendering any opinion on the issue of maintainability.