2005 (12) TMI 604 - HC - Indian Laws

Summary

Issues Involved:
1. Competence of the Trial Judge to dispose of the application for temporary injunction in the absence of the plaintiff.
2. Legality of restraining the defendant from transferring property situated beyond the territorial limits of the Court.
3. Validity of the injunction granted under Order 39 Rules 1 and 2 of the Code of Civil Procedure.
4. Scope of granting injunction under Section 151 of the Code of Civil Procedure.

Issue-wise Detailed Analysis:

1. Competence of the Trial Judge to Dispose of the Application for Temporary Injunction in the Absence of the Plaintiff:

The appellant argued that the Trial Judge should have dismissed the application for temporary injunction for default as the plaintiff was not present on the date of hearing. The appellant contended that the principles of Order 9 Rule 8 of the Code should apply by virtue of Section 141 of the Code of Civil Procedure. However, the Court held that the principles of Order 17 Rule 2 of the Code were applicable and that the affidavit filed by the plaintiff should be treated as evidence already on record. The Court concluded that the Trial Judge was competent to dispose of the application for temporary injunction on merit, even in the absence of the plaintiff, based on the affidavit and written objection provided by the defendant.

2. Legality of Restraining the Defendant from Transferring Property Situated Beyond the Territorial Limits of the Court:

The appellant argued that the Trial Judge erred in restraining the defendant from transferring property situated beyond the territorial limits of the Court. The Court referred to the decision in Balai Kumar Sarkar v. Bimal Chandra Sarkar and Ors., which held that a Court could attach property situated beyond its territorial limits by sending the order to the appropriate Court for implementation. Therefore, the Court found no substance in the appellant's contention and held that there was no bar in restraining the defendant from transferring property situated beyond the territorial limits of the Court.

3. Validity of the Injunction Granted Under Order 39 Rules 1 and 2 of the Code of Civil Procedure:

The appellant contended that the plaintiff failed to make out a case for attachment before judgment as provided in Order 38 of the Code, and thus, no order of attachment could be passed. The Court agreed that the plaintiff did not meet the requirements for attachment before judgment under Order 38. However, the plaintiff argued that the injunction was justified under Order 39 Rule 1(a) as the appellant was going to alienate the subject matter of the suit. The Court held that the property of the appellant was not the subject matter of the suit within the meaning of Order 39 Rule 1, as the suit was essentially for recovery of money and a declaration that the plaintiff was a secured creditor. Consequently, the Court found that the plaintiff was not entitled to the order of temporary injunction granted by the Trial Court.

4. Scope of Granting Injunction Under Section 151 of the Code of Civil Procedure:

The plaintiff argued that even if the case did not fall under Order 39, the Court could grant an injunction under Section 151 of the Code to protect the plaintiff's rights. The Court acknowledged that while it had inherent power to grant injunctions under Section 151, such power could not be exercised in situations where Order 39 explicitly prohibited the grant of injunctions. The Court noted that Order 39 Rule 1(b) allowed for injunctions only if the defendant intended to transfer property with the intent to defraud creditors, which was not alleged in this case. Therefore, the Court concluded that there was no scope for granting the injunction under Section 151 in the absence of any fraudulent intention by the defendant.

Conclusion:

The Court set aside the order of temporary injunction passed by the Trial Judge, finding that the injunction did not fall within the purview of Order 39 and could not be supported under Section 151 of the Code. The appeal was allowed, and the application for temporary injunction filed by the plaintiff was dismissed. There was no order as to costs.