SUBODH KUMAR BANERJEE Vs. SOSHI KUMAR BANERJEE

JUDGEMENT

(1.) On 14-2-1950, an application was made by the plaintiff in his partition suit against his brothers and sons of deceased brothers praying for issue of an order of temporary injunction restraining his brothers, defendants Nos. 1, 2 and 3 from building or raising any structure or construction on any part of premises Nos. 16, 17 and 15 with their sub-numbers 15A, 15B and 15C. Hazra Road or otherwise altering the character or features of the land comprised in the said premises. An interim order of injunction as prayed for was granted by the Court on that very date, 14-2-1950. Ultimately, on 14-9-1950, after hearing both parties and after consideration of the affidavits filed on their behalf and several documents, The Court came to the conclusion that the matters in dispute were matters which concerned a vital question, namely, whether the leases and kabalas of defendants 1 to 3 were genuine and valid documents, that it was neither desirable nor possible to decide such a vital matter then even though indirectly and that

(2.) The application of any penal provision of the nature of Section 95 of the Civil Procedure Code has to be considered by the Court with very great care and anxiety. On the one hand, the Court is bound to give the party asking for relief the full benefit of the provisions made by the Legislature but, on the other hand, the Court has to take care not to do anything which would put unnecessary and avoidable obstacles in the way of litigants. Section 95 of the Civil Procedure Code provides that

(3.) Taking everything into consideration. I have come to the conclusion that in the present case, the defendants Nos. 1 to 3 have failed to show that the plaintiff knew or had reason to believe that the grounds on which the application for temporary injunction was made were insufficient. It seems to me that he and his advisers thought them to be sufficient grounds and that it would be unfair to make him pay compensation merely because this Court in appeal held that these grounds were insufficient.