Pranab Kumar Chattopadhyay, J.
1. This revisional application under Article 227 of the Constitution of India is at the instance of the plaintiff in a suit for partition and is directed against the order dated 14th August 2002 passed by the learned Additional District Judge (1st Court), Krishnagar, Nadia in Misc. Appeal No. 16 of 1999 thereby affirming the order dated 29th January 1999 passed by the learned Assistant District Judge (1st Court), Krishnagar, Nadia in Title Suit No. 50 of 1997.
2. The plaintiff filed the suit for partition of the suit property as described in the schedule of the plaint. The plaintiff also filed an application in connection to the said suit under Order 39, Rule 1 and 2 of C.P.C. read with Section 151 of the Civil Procedure Code praying for temporary injunction restraining the defendants from alienating the suit property till the disposal of the suit.
3. From the records it appears that the suit property originally belonged to one Kunja Kamini Devi. The said Kunja Kamini Devi died in the year 1941 leaving behind her son Jyotindra Nath Mukherjee as her sole legal heir. Her other two sons namely, Satyendra Mukherjee and Haripada Mukherjee died during the life time of their mother, Kunja Kamini Devi. After the death of Jyotindra Nath Mukherjee his two sons namely, Taraprasad Mukherjee and Sachi Prasad Mukherjee inherited the property as the legal heirs of the said Jyotindra Nath Mukherjee and got 8 annas each in the suit property.
4. According to the plaintiff, Taraprasad Mukherjee used to look after the entire suit property as younger brother, Sachi Prasad Mukherjee used to live outside and taking such advantage Taraprasad Mukherjee managed to get his name recorded in the R.S. Record of rights as sole owner in respect of the entire suit property.
5. It has been alleged that the said Taraprasad Mukherjee subsequently in collusion with one Prabhabati Dasi filed suit being S.C.C. Suit No. 511 of 1953 through one Ranjit Pal Chowdhury and no notice of the said S.C.C. Suit was ever served upon Sachi Prasad Mukherjee and ultimately the said suit was decreed on 29th June 1953. The said decree was subsequently executed through Money Execution Case No. 3 of 1995.
6. During execution "of the said decree the suit property was sold in auction and Prabhabati Dasi purchased the same in auction. It has been contended by the opposite parties that Prabhabati Dasi used to possess the suit property through Taraprasad Mukherjee who was her religious brother and therefore, Prabhabati Dasi allowed recording of the suit property in the name of Taraprasad Mukherjee in R. S. Record of rights.
7. Subsequently, Prabhabati Dasi gifted her property which is the suit property herein to Smt. Indira Mukherjee, wife of Taraprasad Mukherjee by registered deed of gift on 13th January 1996 and on 14th January 1996 Taraprasad Mukherjee died. Smt. Indira Mukherjee died on November 1997 leaving behind the defendant Nos. 2 and 3 who are the opposite party Nos. 1 and 2 herein.
8. The plaintiff filed the suit for partition after the death of the said Taraprasad Mukherjee as according to the plaintiff, defendants refused to take steps for partition of the suit property amicably.
9. Learned Counsel of the plaintiff submitted before this Court that the filing of the Money Suit being S.C.C. Suit No. 511 of 1953 against Taraprasad Mukherjee, Sachi Prasad Mukherjee and Ramabati Devi before the learned First Munsif, Krishnanagar and the decree passed on the said suit on June 21, 1953 and also the auction sale of the suit property in execution of the Money Decree in connection to Money Execution Case No. 3 of 1955 were not known to the plaintiff. According to the learned counsel of the plaintiff/petitioner, the said fact was disclosed for the first time by the defendants in the written objections filed by the defendants against the plaintiffs petition for injunction under Order 39, Rules 1 and 2 read with Section 151 of C.P.C. in connection to Title Suit No. 50 of 1997 filed in the Court of the First Assistant District Judge, Krishnanagar.
10. After filing of the suit for partition, the plaintiff filed an application for temporary injunction restraining the defendants from alienating the suit property to others till the disposal of the suit. The learned Assistant District Judge initially passed an ad interim order of injunction directing both the parties to maintain status quo in respect of the suit property but ultimately the said prayer for temporary injunction was rejected by the learned Assistant District Judge on contest and the order of status quo granted earlier was also vacated.
11. While rejecting the prayer for temporary injunction of the plaintiff, learned Assistant District Judge specifically observed that there is no averment in the plaint and petition for temporary injunction to presume that the defendants are trying to alienate the suit property at all and under the aforesaid circumstances the learned Trial Judge did not find any prima facie case in favour of the plaintiff for granting an order of injunction and therefore, the prayer for temporary injunction was rejected by the said learned Assistant District Judge on contest.
12. Challenging the said order of rejection of the prayer for temporary injunction by the learned Assistant District Judge, (1st Court), Krishnanagar, Nadia plaintiff preferred an appeal before the learned District Judge, Krishnanagar, Nadia and the said appeal was registered as Misc. Appeal No. 16 of 1999.
13. During the pendency of the said appeal, the suit property was sold by the heirs of Taraprasad Mukherjee in favour of the opposite party Nos. 3 to 8. Plaintiff, Sachi Prasad Mukherjee filed an application in connection to the said Misc. Appeal No. 16 of 1999 on 1st February 2001 drawing the attention of the learned appellate Court regarding the attempts made by the heirs of Taraprasad through the alleged transferees for demolishing the suit property.
14. The learned First Additional District Judge, Krishnanagar ultimately by his order dated 14th August 2002 dismissed the said Misc. Appeal on the ground that the opposite party Nos. 1 and 2 had already sold out the suit property by executing two sale deeds in favour of the added respondent Nos. 3 to 8 herein.
15. Being aggrieved by and dissatisfied with the aforesaid order dated 14th August 2002 passed by the learned Additional District Judge (1st Court), Krishnanagar in Misc. Appeal No. 16 of 1999 the plaintiff filed the present revisional application before this Court.
16. Mr. S.P. Roychowdhury, learned senior counsel of the plaintiff/petitioner submitted that the elder brother, Taraprasad in order to grab the entire suit property and to deprive the plaintiff from his legitimate 8 annas share surreptitiously sold the suit property in auction in connection to Money Execution Case No. 393 of 1955 for executing the ex parte decree which was obtained in S.C.C. Case No. 511 of 1953 behind the back of the plaintiff and without serving any notice. It was never disputed by anybody that the plaintiff had 8 annas share in the suit property.
17. It has been submitted on behalf of the petitioner that the elder brother Taraprasad, who had also 8 annas share in the suit property although allowed the entire property to be sold in auction in connection to Money Execution Case No. 313 of 1955 for execution of an ex parte decree but did not take any step for setting aside the said ex parte decree nor any intimation was given to the plaintiff in this regard.
18. It has further been alleged on behalf of the plaintiff/petitioner herein that the aforesaid ex parte decree was obtained in S.C.C. Case No. 511 of 1953 by practicing fraud at the instance of the elder brother of the petitioner in order to deprive the plaintiff/petitioner from his legitimate share in the suit property.
19. Mr. Roychowdhury, learned senior counsel of the petitioner submits that the plaintiff was all along under the impression that his elder brother, Taraprasad is in possession of the entire property and looking after the same as one of the co-sharers. Learned counsel of the petitioner also submitted that it was never known to the plaintiff before filing of the written objections by the defendants in the trial Court that the said property was sold in auction and was purchased by one, Prabhabati Dasi who, however, allowed the elder brother of the plaintiff to remain in possession of the said suit property and to enjoy the same. Strangely enough, the said Prabhabati Dasi allowed the elder brother of the petitioner, Taraprasad to record his name in the R.S. Record of rights and ultimately just before the death of Taraprasad the said Prabhabati Dasi gifted the property by executing registered deed of gift to Smt. Indira Mukherjee, wife of Taraprasad Mukherjee.
20. The learned Judge of the lower appellate Court specifically observed in the impugned order to the following effect:
"In the instant case there is no controversy that the present plaintiff inherited some share in the suit property after the death of his mother Kunja Kamini Debi. It is also not disputed that subsequently the suit property was put in auction in connection with S.C.C. Case No. 511/1953 (vide M.Ex. Case No. 3/1955) and one Provabati Dasi purchased the suit property in auction and subsequently she gifted the same to one Indira Mukherjee who was the predecessor-in-interest of the present respondent Nos. 1 and 2."
21. From the records it appears that although the plaintiff filed an application for temporary injunction restraining the respondents from alienating the suit property but taking the advantage of the rejection of the said prayer of the plaintiff, respondents created third party interest in the suit property by transferring the same to the added respondents, namely, the respondent Nos. 3 to 8 herein. The plaintiff/petitioner admittedly filed an application on 1st. February 2001 before the learned lower appellate Court for taking note of the events but the same was altogether ignored and ultimately the prayer for temporary injunction was rejected by the learned Additional District Judge on the ground that the opposite party Nos. 1 and 2 had already sold out the suit property by executing two deeds of conveyance.
22. Mr. Roychowdhury specifically submitted that the auction sale of the suit property in connection with the Money Execution Case No. 3 of 1955 for executing the ex parte decree passed in S.C.C. Case No. 511 of 1953 is nullity as fraud has been practiced in obtaining the said ex parte decree and as such the plaintiff/petitioner herein can challenge the said ex parte decree on the ground of practicing fraud at any time before any authority wherein the said decree could be shown and/or enforced and/or acted upon.
23. Mr. Roychowdhury cited the following decisions in support of his aforesaid contentions :
1) 1922 Cal LJ 124 : AIR 1922 Cal 274, Jyoti Prakash Chattoraj v. Bagala Kanta Chowdhury.
2) , Chiranjilal Shrilal Goenka (Deceased) through L.Rs. v. Jasjit Singh.
24. Mr. Roychowdhury also referred to and relied upon the decision of the Supreme Court in the case of S. P. Chengalvaraya Naidu (Dead) by L.Rs. v. Jagannath (Dead) by L.Rs.
wherein Justice Kuldeep Singh specifically observed thus :
"1........................ It is the settled proposition of law that a judgment or decree obtained by playing fraud on the Court is a nullity and non est in the eyes of law. Such a judgment/decree -- by the first Court or by the highest Court -- has to be treated as a nullity by every Court, whether superior or inferior. It can be challenged in any Court even in collateral proceedings."
"5............................The Courts of law are meant for imparting justice between the parties. One who comes to the Court, must come with clean hands. We are constrained to say that more often than not, process of the Court is being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and others unscrupulous persons from all walks of life find the Court-process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation."
25. In order to explain the principles for grant of temporary injunction and matters to be taken into consideration at the time of deciding the interlocutory application Mr. Roychowdhury relied upon the following decisions:
1) 1914 Cal LJ 47: (AIR 1914 Cal 362), [Israil v. Samser Rahman].
2) , [Gangubai Bablya Chaudhary v. Sitaram
Bhalchandra Sukhtankar] (Paragraph 6).
26. The learned counsel of the petitioner referred to and relied upon a decision of the Supreme Court , (Rameshwar
v. Jot Ram), (Paragraph 9) in support of his contention that the lower appellate Court should have taken notice of the subsequent events as mentioned in the application filed before the lower appellate Court on 1st February 2001 while deciding the prayer for temporary injunction of the plaintiff/petitioner herein.
27. Mr. Sudhis Dasgupta, learned senior counsel of the opposite parties submitted that the plaintiff/petitioner failed to make out any prima facie case in the plaint filed before the trial Court. According to Mr. Dasgupta, plaintiff lost the title in the suit property after the auction sale and issuance of the sale certificate after confirmation of the said auction sale by the learned executing Court.
28. Mr. Dasgupta further submitted that in the present suit validity of the auction sale of the suit property has not been challenged and plaintiff failed to show his prima facie title in the suit property, Mr. Dasgupta also submitted that the plaintiff did riot make out. any substantial case for going to trial and the suit filed by the plaintiff according to Mr. Dasgupta is a speculative suit and the plaintiff did not show his prima facie title in the suit property. Referring to Order 21, Rule 90-92 of C.P.C. Mr. Dasgupta submitted that the High Court should not interfere at this stage after refusal of injunction by both the Courts-below.
29. Mr. Dasgupta referred to and relied upon the following decisions :
1) , (The Managing Director (MIG), Hindustan
Aeronautics Ltd., Balanagar, Hyderabad v. Ajit Prasad Tarway, Manager (Purchase & Stores), Hindustan Aeronautics Ltd., Balanagar, Hyderabad). (Paragraph 5)
2) , (The Municipal Corporation of Delhi v. Shri
Suresh Chandra Jaipuria. (Paragraphs 8 to 11.)
3) , (Chhagan Lal v. The Municipal Corporation,
Indore). (Paragraph 8).
30. Learned counsel of the opposite parties also raised the question regarding limitation of the power of this Court under Article 227 of the Constitution of India and relied upon a decision of the Supreme Court , (Essen Deinki v. Rajiv Kumar)
(Paragraphs 2 to 5).
31. The learned senior counsel of the opposite parties further submitted that the petitioner herein although initiated a proceeding before the trial Court for setting aside the ex parte decree passed in S.C.C. Case No. 511 of 1953 and also for setting aside the auction sale but no interim order has yet been passed in the said proceeding by the learned trial Court. Mr. Dasgupta also submitted that unless the decree passed in S.C.C. Suit No. 511 of 1953 is set aside the petitioner/plaintiff cannot claim any interest in the suit property.
32. Mr. Dasgupta specifically urged before this Court that the plaintiff/petitioner has miserably failed to make out a prima facie case for granting an interim order of injunction, in any form in favour of the said petitioner,
33. Whether the plaintiff has any right in respect of the suit property in view of the ex parte decree passed in S.C.C. Suit No. 511 of 1953 and sale of the suit property in execution of the said decree in connection to Misc. Execution Case No. 3 of 1955 is very much an issue in the pending suit for partition before the trial Court and while deciding the said partition suit learned Judge of the trial Court will have to determine the aforesaid issue considering the materials and evidence on record.
34. The partition suit filed by the plaintiff/petitioner herein necessarily involves an adjudication of the subsisting rights of the plaintiff/petitioner in the suit property.
35. Now, considering the facts of this case I am constrained to hold that the matter has been considerably complicated and third party rights have also been created in respect of the suit property due to rejection of the temporary injunction by the Courts-below.
36. It is well settled that the Court will not refuse an injunction in a case where the defendants will get an undue advantage over the plaintiff.
37. Three fundamental conditions, namely, 'Prima facie case, balance of convenience and irreparable loss' are required to be taken into consideration by the Court while exercising its judicial discretion in the matter of granting or refusing the prayer for ad interim injunction in connection with the pending suit.
38. The plaintiff admittedly, had 8 annas share in the suit property and Prabhabati Dasi although purchased the suit property in the alleged auction sale in the year 1955 but never made any attempt to record the said property in, her own name nor she possessed the said property at any point of time and on the other hand allowed Taraprasad to remain in possession of the suit property and to use the same as before. The plaintiff/petitioner therefore, had no occasion to know about the alleged transfer of the suit property in the name of Prabhabati Dasi. Furthermore, the said Prabhabati Dasi admittedly, executed registered deed of gift in the name of wife of Taraprasad in the year 1995 although the property was purchased by Prabhabati Dasi in the alleged auction sale in the year 1955.
39. So, from the aforesaid facts it is clear that Taraprasad all along remained in possession of the suit property and the plaintiff being the younger brother had no occasion to doubt regarding sale and/or transfer of the same in favour of anybody till the said fact was disclosed in the written objections by the heirs of Taraprasad before the trial Court.
40. In the aforesaid circumstances, it cannot be said without any fear of contradiction and doubt that Taraprasad acted all through with clean hands while dealing with the suit property and as such it cannot be said that the claim of the petitioner in respect of the suit property in the pending suit is devoid of any merit at this stage. I am also unable to hold at this stage that the allegation of fraud made on behalf of the plaintiff/petitioner regarding sale of the suit property with an intention to deny the legitimate share of the plaintiff is totally baseless and without any merit. As a matter of fact the plaintiff/petitioner has made out an arguable strong prima facie case for going to trial and unless an ad-interim order of injunction is granted the opposite parties may take further steps for sale and/or transfer of the suit property in favour of the third parties which will not only lead to serious complications but may cause irreparable loss and injury to the plaintiff/petitioner herein.
41. Although Mr. Dasgupta specifically urged before this Court that the plaintiff/ petitioner failed to establish the prima facie title in the suit property but at the time of considering the prayer for temporary injunction, Court should consider whether prima facie case has been made out by the petitioner which needs adjudication at the trial and prima facie case should not be confused with prima facie title.
42. Though various decisions have been cited by the learned senior counsels of both the parties but the decision cited by Mr. Roychowdhury and , Dalpat Kumar v. Prahlad Singh, is
very much applicable in the facts of the present case. Relevant observations of the Supreme Court in the aforesaid decision is quoted hereunder :
"5. Therefore, the burden is on the plaintiff by evidence aliunde by affidavit or otherwise that there is 'a prima facie case' in his favour which needs adjudication at the trial. The existence of the prima facie right and infraction of the enjoyment of his property or the right is a condition for the grant of temporary injunction. Prima facie case is not to be confused with prima facie title, which has to be established, on evidence at the trial. Only prima facie case is a substantial question raised, bona fide, which needs investigation and a decision of merits........................ The Court further has to satisfy that non-interference by the Court would result in 'irreparable injury' to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages. The third condition also is that 'the balance of convenience' must be in favour of granting
43. Even though Mr. Dasgupta submitted that this Hon'ble Court should net interfere in the matter at this stage in view of refusal of the prayer for grant of injunction by both the Courts-below but I am unable to accept the aforesaid contention of the opposite parties in the facts of the present case as the learned counsel for the opposite parties never raised any question regarding want of jurisdiction of this Hon'ble Court to decide the points raised in the present revisional application.
44. Having heard the learned counsels of the respective parties and considering the materials on record, I have no hesitation to hold that the learned Judges of the Courts-below committed serious error by refusing the prayer of the plain tiff/petitioner for grant of ad-interim order of injunction in the matter during the pendency of the suit and both the Courts-below particularly the first Appellate Court exercised its jurisdiction with material irregularity by not taking note for the subsequent events as mentioned in the application filed by the plaintiff/petitioner herein before the said First Appellate Court on 1st February 2001.
45. The decisions cited by Mr. Dasgupta in this regard are not at all applicable in the facts of the present case.
46. In spite of limited jurisdiction under Article 227 of the Constitution of India this Court is bound to entertain the present revisional application and exercise its jurisdiction in view of the material irregularities committed by the Courts-below in deciding the interlocutory applications filed by the plaintiff/petitioner for grant of ad-interim order of injunction. The First Appellate Court, in my view, has committed a manifest error in ignoring the application filed by the plaintiff/petitioner on 1st February 2001 for taking note of the subsequent events, which warrants interference by this Court in the present revisional application. The decision cited by Mr. Dasgupta, learned Counsel of the opposite parties in the case of Essen Deinki v. Rajiv Kumar has no manner of application
in the facts of the present case.
47. For the reasons mentioned hereinbefore, I am of the opinion that both the learned Additional District Judge, (1st Court), Krishnagar and also the learned Assistant District Judge, (1st Court), Krishnagar had failed to consider the matter in its correct perspective and committed serious error in rejecting the prayer of the plaintiff for grant of temporary injunction.
48. Accordingly, the impugned order passed by the learned Additional District Judge on 14th August 2002 in Misc. Appeal No. 16 of 1999 affirming the order dated 29th January 1999 passed by the learned Assistant District Judge, (1st Court), Krishnagar in Title Suit No. 15 of 1997 stands quashed. The parties herein are directed to maintain status quo as regards possession in respect of the suit property and they are also restrained from changing the nature and character of the suit property under any circumstances.
49. The learned trial Judge is directed to expedite the hearing of the suit filed by the plaintiff/petitioner herein and dispose of the same at an early date but positively within 31st December 2003.
50. This revisional application is thus allowed. There will be, however, No order as to costs.
51. Urgent xerox certified copy of this judgment be handed over to the learned Advocates of the parties, if applied for.