Full Judgment Text
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PETITIONER:
BATE KRISHNA DAMANI (DEAD) BY HIS LRS.
Vs.
RESPONDENT:
KAILASH CHAND SRIVASTAVA & ANR.
DATE OF JUDGMENT11/11/1994
BENCH:
ACT:
HEADNOTE:
JUDGMENT:
1. Leave granted.
2. Bhagwan Das Damani, Predecessor-in-interest of the
original petitioner Bate Krishna Damani, now dead and
represented by his legal representatives, was the owner of
the premises - Suit No. 5, 19--B Bipin Behari Ganguli
Street, Calcutta and Mr. JM Solomon and has wife Ezy.
Solomon were his tenant in the said premises. A suit for
eviction of the tenant was filed, inter alia, on the ground
of subletting of the premises to respondent No. 1. Kailash
Chand Srivastava. Respondent No. 1 contested the suit
(Ejectment Suit No. 102 of 1972) on behalf of the tenant as
his constituted attorney, in the City Civil Court at
Calcutta. A decree for ejectment was passed in favour of the
landlord on 12.8.1994 by the Calcutta High Court in the
appeal arising out of that suit: and the respondents were
directed to furnish an undertaking to vacate the premises
within the specified period. The decree was put in execution
since the respondents neither gave the undertaking nor
vacated the premises. Respondent No. 1 instituted Title
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Suit No. 947 of 1985 in the City Civil Court at Calcutta for
a declaration that he was entitled to occupy the said
premises and a permanent injunction to restrain execution
proceeding for execution of the decree under Order 21, Rule
97 of the Code of Civil Procedure. The wife of respondent
No. 1 Smt. Jamuna Srivastava filed an application under
Order 21, Rule 108, C.P.C., which was rejected. Respondent
No. 1 then filed an application for temporary injunction in
the suit filed by him which was rejected by the Trial Court.
Respondent No. 1 filed an appeal against refusal of
temporary injunction. On 14.8.1992, a Division Bench of the
High Court dismissed the appeal of respondent No. 1. The
Division Bench held that in the ejectment suit, respondent
No. 1 had appeared as the constituted attorney of the
Solomons stating therein that he was a caretaker without
aggartion of any claim that he was a tenant in the said
premises. After dismissal of that appeal, respondent No. 1
filed a review application. This review application has been
allowed by the Division Bench by the impugned order dated
12.0.1993 and a temporary in.junction has been granted
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resulting in stay of execution of the decree for eviction.
Hence this appeal by special leave.
3. Having heard learned counsel for the parties, we are
satisfied that this appeal must be allowed.
4. Narration of the undisputed facts stated earlier
leaves no doubt that there is no ground for grant of
temporary injunction to restrain execution of the degree for
eviction at the instance of respondent No. 1. Unless a
strong prima facie case in favour of the plaintiff-
respondent No. 1 is made out, there is no occasion to grant
the temporary injunction which has the result of restraining
execution of a decree for eviction which has become final.
The Trial Court refused the temporary injunction and a
Division Bench of the High Court dismissed the appeal filed
by respondent No. 1 against refusal of the temporary
injunction. Indeed, it is extraordinary that thereafter the
temporary injunction was granted in a review petition on
these admitted facts, Respondents No. 1 participated in the
ejectment suit contesting the same on bhalf of the Solomons
as their constituted attorney claiming to be a mere care-
taker of the Solomons and not a tenant directly from the
landlord. Moreover, in the execution proceedings, the wife
of respondent No. 1 made an objection which too was
rejected. In an application for temporary injunction made in
the suit of respondent No. 1 thereafter, there was no basis
to grant the equitable relief of temporary injunction in
favour of the Respondent No. 1. We have no doubt that this
was sheer abuse of the process of court resulting in
thwarting execution of a valid decree during its
subsistence. In our opinion, there was no ground for grant
of temporary injunction in such a suit filed by respondent
No. 1 much less grant of the same by an order made in review
after a Division Bench of the High Court had dismissed the
appeal of respondent No. 1 against refusal of the temporary
injunction by the Trial Court. The impugned order must,
therfore, be set aside.
5. Consequently, the appeal is allowed. The impugned
order dated 12.5.1993 is set aside resulting in refusal of
the temporary injunction claimed by respondent No. 1 in his
suit. The appellant would also get Rs. 10,000/- (Rupees ten
thousand) as costs from respondent No. 1.
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The executing court must proceed to execute the decree of
eviction forthwith.