BISWAJIT DUTTA vs MALATI DUTTA AND ORS

Form No.J(2)
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present : The Hon’ble Mr. Justice Sabyasachi Bhattacharyya
&
The Hon’ble Mr. Justice Md. Shabbar Rashidi

FMA 920 of 2026
with
CAN 1 of 2026
Biswajit Dutta
Vs.
Malati Dutta and Ors.
For the appellant : Ms. Manali Biswas, Adv.
For the respondent nos.
1, 2 and 3 : Mr. Shounak Mukhopadhyay,
Ms. Rumki Guha, Advs.
Heard on : November 12, 2026.
Judgment on : November 12, 2026.
Sabyasachi Bhattacharyya , J. :
1. Affidavit of service filed today be kept on record.

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2.
The appeal is admitted, to be heard on the grounds taken in the
memorandum, and is taken up for hearing on consent of both
parties.
3. The appellant, being the plaintiff, filed a suit for partition, in
connection with which an injunction application was also filed for
restraining the defendants/respondents from creating any third party
interest as well as from changing the nature and character of the
suit property.
4. Initially, an ad-interim injunction was granted. Subsequently,
however, upon the defendants filing their written objection and
disclosing certain facts, the injunction application was dismissed by
the impugned order, giving rise to the present appeal.
5.
Learned counsel for the appellant argues that the premise on
which the prayer for injunction was refused by the learned Trial
Judge was that an earlier suit had been filed for the self-same relief
of partition by the plaintiff, during the subsistence of which the
present suit was filed. However, on August 2, 2024, the date on
which the present suit was filed, an application had already been
filed before the court where the previous suit was pending, seeking
withdrawal of the said suit. The said application for withdrawal, it is

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submitted, was filed at 10.30 a.m and was fixed for hearing at 2.00
p.m. the same date.
6. In such circumstances, the ad-interim order was passed in the
present suit.
7. However, subsequently, such withdrawal application has been
allowed and the earlier suit has been dismissed as withdrawn.
Thus, it is submitted that when the temporary injunction application
was taken up for hearing and the present impugned order was
passed, there was no subsisting previous suit at all.
8.
Hence, it is argued that the learned Trial Judge erred in law in
dismissing the injunction application merely on the ground of such
so-called suppression.
9.
Learned counsel for the defendants/respondents argues that
injunction is an equitable relief and since the plaintiff did not come
with clean hands, the learned Trial Judge was justified in refusing
injunction.
10. Learned counsel places reliance on Gujarat Bottling Co. Ltd.
and Ors. vs. Coca Cola Co. and Ors. reported at (1995) 5 SCC 545
where the Hon’ble Supreme Court recorded that the jurisdiction of
the court to interfere with an order of interlocutory or temporary
injunction is purely equitable and therefore, the court, on being

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approached, will, apart from other considerations, also look to the
conduct of the party invoking the jurisdiction of the court and may
refuse to interfere unless his conduct was free from blame. It was
further observed that since the relief is wholly equitable in nature,
the party invoking the jurisdiction of the court has to show that he
himself was not at fault and that he himself was not responsible for
bringing about the state of things complained of and that he was not
unfair or inequitable in his dealings with the party against whom he
was seeking relief. His conduct should be fair and honest.
11.
Thus, it is argued that the present plaintiff, having approached
the court by filing the present suit on suppression of the earlier suit,
ought to have been refused injunction.
12.
Secondly, learned counsel for the respondents argues that the
earlier suit was also bad for non-joinder of necessary parties, upon
which facet of the case being pointed out in the written objection
filed by the defendants in the earlier suit, the plaintiff grew wiser and
surreptitiously filed the present suit and obtained an ex parte order
of injunction. Although the left-out parties have been added to the
present suit, such conduct is contrary to equity.
13.
Thirdly, it is contended that the plaintiff himself transferred
portions of the suit property in favour of the newly added parties

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during subsistence of an injunction order, thus being also guilty of
coming with unclean hands and of mala fides .
14.
It is submitted that such a party ought not to be favoured with
an order of injunction by a court of equity.
15. Insofar as the question of suppression is concerned, the same
could, in the circumstances of the present case, be a relevant factor
if an application was filed by the defendants under Order XXXIX
Rule 4 of the Code of Civil Procedure, for vacating the ad-interim
order of injunction on the ground of suppression of material facts.
However, the considerations are different between the ad-interim
stage of an injunction application and the final hearing stage. On
the date when the temporary injunction application was taken up for
final hearing, fact remained that the earlier suit had already been
withdrawn by the plaintiff.
16. The cause of action is continuing insofar as partition is
concerned. Thus, the plaintiff could very well have filed a new suit
on the date when the present impugned order was passed, upon
impleading the parties omitted in the earlier suit. Hence, it would
only be an exercise in futility if the plaintiff was forced to file a
different suit unnecessarily whereas the present suit was already
pending. Hence, since there was no subsisting earlier suit on the

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date when the present impugned order was passed, the learned
Trial Judge erred in law in taking into consideration such apparent
suppression of the pendency of the earlier suit, which had been
rendered academic in the meantime, in refusing injunction on such
sole ground.
17. However, insofar as the alleged transfer of portions of the suit
property by the plaintiff in contravention of a subsisting injunction
order is concerned, as alleged by learned counsel for the
respondents, the same also gives rise to the question as to whether
the plaintiff came with clean hands, and, as such, was entitled to an
equitable relief like injunction. Be that as it may, since the learned
Trial Judge did not deal with such issue or the other issues between
the parties on the merits of the matter, this Court is loath to arrogate
to itself the powers of the Trial Court and become the first forum
adjudicating such issues, which would rob the parties of a further
forum of challenge.
18. Thus, the ends of justice demand that the injunction application
is relegated for a fresh adjudication to the Trial Court for
consideration of the said issue and the other issues involved.
19.
However, insofar as alleged suppression of the pendency of the
earlier suit was concerned, the same was rendered academic on

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the date when the temporary injunction application was finally taken
up for hearing, in view of the earlier suit being already withdrawn in
the meantime.
20. Accordingly, FMA 920 of 2026 is allowed on contest, thereby
setting aside the impugned order, bearing Order no. 11 dated June
23, 2026 passed by the learned Civil Judge (Senior Division), First
Court at Berhampore, District – Murshidabad in Partition Suit no.
450 of 2024, and granting an order of injunction restraining both
parties from selling, transferring, alienating and/or creating any third
party interest in respect of the suit property as well as changing the
nature and character thereof till disposal of the temporary injunction
application afresh by the Trial Court.
21.
The injunction application is hereby remanded to the Trial Court
for a fresh adjudication on merits in the light of the above
observations. It is made clear that all questions are kept open for
being decided by the learned Trial Judge on the premise of the
injunction application and the written objection filed thereto in the
Trial Court as well as all the materials placed before the Trial Court.
22. It is expected that such fresh adjudication of the injunction
application shall be concluded at the earliest, preferably within one

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working month from the date of communication of this order to the
Trial Court.
23. CAN 1 of 2026 is consequentially disposed of as well.
24. There will be no order as to costs.
25. Urgent photostat certified copies of this judgment, if applied for,
be supplied to the parties upon compliance of all requisite
formalities.
I agree. ( Sabyasachi Bhattacharyya, J .)
( Md. Shabbar Rashidi, J .)
AD-22
Ct No.16
(SSS)