MADAN MOHAN GUPTA Vs. MANIK LAL NANDI

JUDGEMENT

(1.) This civil revision application is directed against the order dated 6-8-96 passed by 2nd, Addl. District Judge, Jamshedpur, in Misc. Appeal No. 7/95 wherby and where under the learned District Judge dismissed the appeal preferred on behalf of the defendant petitioner and confirmed the order dated 16.5,95 passed by the Munsif, Jameshedpur, in T.S. No. 7/95 by which the Learned Munsif, Jamshedpur, granted temporary injunction on the application filed by the plaintiff O. P. under Order XXXIX, Rules 1 and 2 read with Section 151, C.P.C.

(2.) The plaintiff O.P. filed the aforesaid T.S. No. 7/95 against the defendant for a declaration that the plaintiff is entitled to restoration of the vehicle held by him uder the agreement between the plaintiff and the defendant and also for a permanent injunction restraining the defendant from taking possession or attempting to take possession of the vehicle in any manner. The plaintiff's case is that the vehicle was purchased by the defendant petitioner after taking loan from Union Bank of India and the vehicle was hypothecated with the said bank. The defendant started plying the vehicle as contract carriage but being unable to maintain the same and to repay the bank loan he approached the plaintiff for purchasing the said vehicle and both of them entered into an agreement on 4-8-92 and in part performance therof the plaintiff respondent paid a cash of Rs. 20,000/- to the defendant appellant. As per the terms of agreement the plaintiff respondent had to ply and run the vehicle and out of its income he had to pay regular instalments thereof to the bank. The defendant petitioner was required to execute a sale letter and to transfer ownership in favour of the plaintiff. The plaintiff's further case was that on the basis of the said agreement the plaintiff came in possession and control of the vehicle and started plying the same after incurring expenditure and was making regular payment of instalments to the bank. On 8-10- 94 the defendant with some ulterior motive and for wrongful gain lodged an F.I.R. at Potka P.S. making false allegation against the plaintiff of having not paid the Bank's loan and for committing breach of trust and cheating. Accordigly a criminal case was registered against the plaintiff under Section 406, 420 I.P.C. and during investigation the police seized the vehicle from the plaintiff and the same was lying in the police custody. It was further stated that after completion of the ivestigation a final report was submitted with the finding that the plaintiff had made payment of instalment of the bank. Taking advantage of the pendency of ivestigation of the criminal case, the defendant hurriedly obtained an order from the criminal court for the return of the disputed vehicle from the lawful possession of the plaintiff although such order had lost its force in view of the submission of final form by the police. The plaintiff, therefore, claimed that he is entitled to get back possession of the vehicle from the police custody but the defendant is making attempt to take possession of the said vehicle. Having reasonable apprehension the plaintiff filed the aforsaid suit for declaration and permanent injunction. A separate application for grant of temporary injunction was filed by the plaintiff under Order XXXIX, Rules 1 and 2, C.P.C. seeking an order of injunction restraining the defendant from attempting to take possession of the disputed vehicle form the police custody.

(3.) On being noticed the defendant petitioner appeared and filed his show cause to the injunction petition in which the defendant challenged the maintainability of the suit and made allegation against the plaintiff for suppressing the material facts from the court. It was stated inter alia that under the agreement there was a specific condition that in the event of default in making payment of three instalments to the bank the defendant shall be entitled to take the possession of the vehicle from the plaintiff and the plaintiff shall be liable for criminal act. It is alleged that the plaintiff was plying the vehicle without making proper instalments to the bank, a result of which the Manager of the bank issued notice to the defendant asking him to make payment to the tune of Rs. 1,83,230.60 which was lying due and also warned him of legal action in the event of non-payment of outstanding dues. The defendant repeatedly requested the plaintiff to clear the Bank dues but nothing was done and the plaintiff was keeping the vehicle in his custody illegally. The defendant thereafter approached the criminal court and lodged an F.I.R. It was further stated that the learned C.J.M. Jamshedpur, released the vehicle in favour of the defendant by order dated 29.10.94. The plaintiff thereafter challenged the order of release in the High Court under Section 482, Cr.P.C. vide Cr. Misc. No. 5976/ 94(R). During the pendency of the said Misc. case the Investigating Officer submitted a final form. This court, however, dismissed the aforesaid case and confirmed the order of release passed by the C.J.M. Jameshedpur. Even after the aforesaid order when the vehicle was not released by the police, the defendant was compelled to file Cr.-Misc. No. 721/95(R) before this court and an explanation was called for from the C.J.M., Jamshedpur, regarding non-release of the vehicle in favour of the defendant. The case therefore was that the prayer made by the plaintiff for the grant of injunction is illegal and mala fide.