After Earlier Suit Was Withdrawn, Calcutta HC Bars Both Sides From Transferring Partition Property Pending Injunction Rehearing

The plaintiff-appellant brought a partition suit and sought an injunction restraining the defendants from creating third-party interests in, or changing the nature and character of, the suit property.

After initially granting an ad-interim injunction, the Trial Court dismissed the injunction application, relying on the plaintiff’s earlier partition suit, which had been pending when the present suit was filed.

The plaintiff contended that he had applied to withdraw the earlier suit on the same day the present suit was instituted, and that the earlier suit was subsequently dismissed as withdrawn before the injunction application was finally heard.

The respondents also alleged that the plaintiff had omitted necessary parties from the earlier suit and had transferred portions of the property in breach of an injunction.

The plaintiff appealed the dismissal.

The court applied the equitable principles governing temporary injunctions: a party seeking equitable relief must approach the court with fair and honest conduct and must not be responsible for the state of affairs complained of.

It relied on Gujarat Bottling Co. Ltd. v. Coca Cola Co., (1995) 5 SCC 545, which recognises that a court exercising jurisdiction over interlocutory injunctions may consider the applicant’s conduct and refuse relief where the applicant is at fault or has acted inequitably.

The court also observed that suppression may be relevant to an application under Order XXXIX Rule 4 of the Code of Civil Procedure to vacate an ad-interim injunction, while distinguishing that inquiry from the final hearing of the injunction application.

The earlier suit had been withdrawn before the injunction application was finally heard. By then, there was no subsisting earlier suit, and the plaintiff could have brought a fresh partition suit with the omitted parties joined.

The Trial Court therefore erred in refusing the injunction solely because of the earlier suit’s pendency, which had become academic by the time of the final hearing.

However, the allegations that the plaintiff transferred property in breach of an injunction raised a separate question concerning his entitlement to equitable relief.

Because the Trial Court had not addressed that issue or the other merits, the appellate court declined to decide them as the first forum and remitted the application for fresh adjudication.

Pending fresh adjudication, both parties were restrained from selling, transferring, alienating, or creating third-party interests in the suit property, or changing its nature and character.

The injunction application was remanded for fresh determination on its merits, with all questions left open; the Trial Court was asked to decide it at the earliest, preferably within one working month of receiving the order.

The connected application was disposed of, with no order as to costs.