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Friday, April 21, 2017

Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure, 1908(hereinafter referred to as “the Code”) and sought temporary injunction against the defendants (appellant, respondent Nos. 2 and 3) restraining them from interfering in respondent No. 1’s possession over the suit property etc.= TRAIL COURT GRANTED STATUS QUO - The High Court, by impugned judgment, dismissed the appeals filed by defendant Nos. 1 and 2 whereas allowed in part the appeal filed by the plaintiff and accordingly modified the order of the Trial Court to the effect that the special officer be appointed to take possession of the suit property which would remain in his possession till the disposal of the Suit. It was also directed that this direction would be subject to the result of the Civil Suit.-The High Court then also invoked powers under Section 340 of the Code of Criminal Procedure, 1973 (in short, “Cr.P.C.) and directed the Registrar General of the High Court to lodge a complaint against the appellant and respondent No. 2 for their prosecution for having allegedly committed offence punishable under Section 196 of the Indian Penal Code, 1860 by fabricating some documents filed by them in the suit to secure the orders in their favour. -On 05.12.2005, this Court issued notice to the respondents only qua direction given by the High Court to the Registrar General of the High Court to lodge a complaint under Section 340 of the Crl.P.C. During the pendency of the S.L.P., this Court stayed the implementation of the impugned directions. In other words, this Court dismissed the special leave petition insofar as it relates to the main controversy decided by the High Court in relation to the grant of injunction and confined this appeal to examine the legality and correctness of the impugned directions quoted supra. -Needless to say, the Trial Court would decide the suit uninfluenced by any of the findings recorded and observations made by the Trial Court in its order dated 06.04.2005 and also by the High Court in the impugned order.

                                                                  Reportable

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL No.5655 OF 2007


Ayan Chatterjee                    ….Appellant(s)

                                   VERSUS

Future Technology Foundation
Inc. & Ors.                          …Respondent(s)



                               J U D G M E N T
Abhay Manohar Sapre, J.
1)    This appeal is filed by defendant No.2 against the final judgment  and
order dated 21.07.2005 passed by the High Court of Calcutta in F.M.A.T.  No.
1335 of 2005 whereby the High  Court  dismissed  the  appeal  filed  by  the
appellant herein against the order dated  06.04.2005  passed  by  the  Civil
Judge(Sr.Div.), IXth Court at Alipore in T.S. No.3 of 2005.
2)    We need not burden the order  by  setting  out  the  facts  in  detail
except to the extent necessary to appreciate the short controversy  involved
in the appeal.
3)    The appellant is defendant  No.2  whereas  respondent  No.  1  is  the
plaintiff, respondent No. 2 is defendant No.  1  and  respondent  No.  3  is
defendant No. 3 in the Civil Suit out of which this appeal arises.
4)    Respondent No. 1 has filed a Civil Suit being  Title  Suit  No.  3  of
2005 in the Court of IXth Civil Judge  (Senior  Division),  Alipore  against
the appellant and respondent Nos. 2 and 3. The suit  is  for  a  declaration
that respondent No. 1 was and continues to be a tenant under respondent  No.
2 in relation to the suit property.  Respondent No. 1 has  also  prayed  for
grant  of  permanent  injunction  restraining  respondent  No.  2  and   the
appellant, their servants and the  agents  from  interfering  with  peaceful
possession of respondent No. 1 in the suit property.  A  further  prayer  is
made that the appellant be also restrained from operating the  Bank  Account
of  respondent  No.  1  bearing  current  account  No.0029-136274-050   with
respondent No. 3.
5)    During the pendency of  the  suit,  respondent  No.  1,  in  order  to
protect their rights, which are subject matter of the civil suit,  filed  an
application under Order 39 Rules 1 and 2 read with Section 151 of  the  Code
of Civil Procedure, 1908(hereinafter referred to as “the Code”)  and  sought
temporary injunction against the defendants (appellant,  respondent  Nos.  2
and 3) restraining them from interfering in respondent  No.  1’s  possession
over the suit property etc.
6)    Respondent No. 2 and the appellant, who were the contesting  defendant
Nos. 1 and 2 respectively filed their  reply  and  opposed  the  prayer  for
grant of temporary injunction made by respondent No.1.
7)    The Trial Court, by order  dated  6.4.2005,  while  disposing  of  the
injunction application directed the parties to maintain status-quo over  the
suit property. It recorded a finding  that  the  plaintiff  is  prima  facie
found to be in possession of the suit property  and  that  defendant  No.  2
could not prove his possession prima facie over the suit property.
8)    Felt aggrieved, defendant Nos. 1 and 2 filed  separate  Misc.  Appeals
before the High Court whereas the plaintiff also filed Misc. Appeal  against
the aforesaid order of  the  Trial  Court.   The  High  Court,  by  impugned
judgment, dismissed the appeals filed by defendant  Nos.  1  and  2  whereas
allowed in part the appeal filed by the plaintiff and  accordingly  modified
the order of the Trial Court to the  effect  that  the  special  officer  be
appointed to take possession of the suit property which would remain in  his
possession till the disposal of the Suit. It was  also  directed  that  this
direction would be subject to the result of the Civil Suit.
9)    While disposing of the three appeals, the  High  Court  also  directed
the Trial Court to decide the Civil Suit on or before 31.12.2005 on  merits.
 The High Court then also invoked powers under Section 340 of  the  Code  of
Criminal Procedure, 1973 (in short, “Cr.P.C.)  and  directed  the  Registrar
General of the High Court to lodge a complaint  against  the  appellant  and
respondent No. 2  for  their  prosecution  for  having  allegedly  committed
offence punishable under Section 196 of  the  Indian  Penal  Code,  1860  by
fabricating some documents filed by them in the suit to  secure  the  orders
in their favour. The directions read as under:
       “After careful scrutiny of the Xerox copies  of  the  two  agreements
and the receipt granted by defendant No.1 in favour of  the  defendant  no.2
for Rs.72000/-, we are prima facie convinced that those are fabricated  ones
and were relied upon by the  defendant  nos.1  and  2  with  the  object  of
defrauding the Court with an eye to obtain favourable order in their  favour
and as such, they have prima facie committed an offence  under  Section  196
of the Indian Penal Code; it is, therefore, expedient  in  the  interest  of
justice that an enquiry should be made to ascertain whether those  documents
included in the paper book between pages 107 and 123 are  really  fabricated
ones.  We accordingly in exercise of our power conferred under  Section  340
of the Code of Criminal Procedure direct the learned  Registrar  General  of
this Court to lodge a complaint before the  appropriate  court  against  the
defendant nos. 1 and 2 alleging offence under  Section  196  of  the  Indian
Penal Code on the aforesaid facts.”
10)   Felt aggrieved, defendant No. 2  has  filed  this  appeal  by  way  of
special leave before this Court.
11)   On 05.12.2005,  this Court issued notice to the respondents  only  qua
direction given by the High Court to  the  Registrar  General  of  the  High
Court to lodge a complaint under Section 340  of  the  Crl.P.C.  During  the
pendency of  the  S.L.P.,  this  Court  stayed  the  implementation  of  the
impugned directions. In other words, this Court dismissed the special  leave
petition insofar as it relates to the main controversy decided by  the  High
Court in relation to the grant of injunction and  confined  this  appeal  to
examine the legality and  correctness  of  the  impugned  directions  quoted
supra.
12)   Even on second call, none appeared for  the  appellant.   Mr.  D.N.Ray
appeared for respondent No. 1.
13)   In the interest of justice, we permitted the appellant to  submit  the
written submissions within three days. The appellant has filed  the  written
submissions.
14)   Having perused the record of the case, the written  submissions  filed
by the appellant and on hearing  the  submissions  of  learned  counsel  for
respondent  No.  1,  we  are  inclined  to  dispose  of  the   appeal   with
observations made infra.
15)   In our considered opinion, having regard to the nature of  controversy
involved in the pending Civil Suit and the one which has  traveled  to  this
Court out of interlocutory proceedings, it would be in the interest  of  all
the parties that the Civil Suit out of which this appeal  arises  itself  is
disposed of on its merits in accordance with law uninfluenced by any of  the
observations made by the Trial Court and the High Court while  deciding  the
injunction application which is the subject matter of this appeal.
16)    In our considered view, even otherwise, the findings  recorded  while
deciding interlocutory proceedings such as the one in this case  (injunction
proceedings) are prima facie in nature and their effect remains confined  to
the disposal of the interlocutory proceedings only. Such  findings,  in  our
view, do not, in any manner, affect and come in the way of disposal  of  the
Civil Suit on merits which is decided on the  basis  of  the  pleadings  and
evidence adduced by the parties in the suit.
17)   It is for this reason, we are of the view that since the  parties  are
yet to adduce the evidence on merits in support of  their  respective  stand
taken in the pleadings in the Civil Suit, it would be  in  the  interest  of
all the parties concerned, that they  adduce  evidence  so  that  the  Trial
Court is able to decide the Civil Suit on merits  in  accordance  with  law.
Needless to say, the Trial Court would decide the suit uninfluenced  by  any
of the findings recorded and observations made by the  Trial  Court  in  its
order dated 06.04.2005 and also by the High Court in the impugned order.
18)   Depending upon the outcome of the  suit,  appropriate  directions,  as
the case may be, can always be given including the one  given  by  the  High
Court, if occasion so arises and if need be. We, therefore, at  this  stage,
refrain from making any observation in the order.
19)   Let the Civil Suit be decided by the Trial Court, as  directed  above,
within one year as an outer limit strictly  in  accordance  with  law.  Till
then, the interim order dated 05.12.2005  of  this  Court  would  remain  in
operation so also the impugned order passed by the  High  Court  which  this
Court has  affirmed  in  relation  to  the  grant  of  injunction  regarding
preservation of suit property.
20)    Parties to appear before the Trial Court on  02.05.2017  and  produce
the copy of this order to enable the Trial Court to proceed with  the  trial
of the suit.     Since none had  appeared  for  the  appellant  before  this
Court for prosecuting the appeal, the Trial Court shall issue notice to  all
the parties (if nobody appears on 02.05.2017 on behalf of  the  parties)  in
the suit for their appearance on the date to be fixed  by  the  Trial  Court
for proceedings further in the trial, as directed above.
21)   In  view  of  foregoing  discussion,  the  appeal  stands  accordingly
disposed of.
                        ……...................................J.
                                  [R.K. AGRAWAL]

…...……..................................J.
                                [ABHAY MANOHAR SAPRE]
      New Delhi;
April 18, 2017
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