Birendra Chandra Das Vs. Samir Ghosh and others, 59 DLR (2007) 545

Case No: Civil Revision No. 2951 of 2006

Judge: Md. Abdur Rashid ,

Court: High Court Division,,

Advocate: Md. Khurshid Alam Khan,Mr. AY Ahmed Ali,,

Citation: 59 DLR (2007) 545

Case Year: 2007

Appellant: Birendra Chandra Das

Respondent: Samir Ghosh and others

Subject: Injunction,

Delivery Date: 2007-02-14

Supreme Court
High Court Division
(Civil Revisional Jurisdiction)
 
Present:
Md. Abdur Rashid J
 
Birendra Chandra Das
…………….Petitioner
Vs.
Samir Ghosh and others
…………..Opposite-Parties
 
Judgment
February 14, 2007.
 
Code of Civil Procedure (V of 1908)
Order XXXIX, Rules 1 & 2
Trial Court erred in granting prayer for ad-interim injunction without notice to the plaintiff after a period of seven months of making the application for temporary injunction. Appellate Court below has therefore, rightly set aside such order of ad-interim injunction which resulted in no failure of justice.
 
Lawyers involved:
AY Ahmed Ali and ATM Mizanur Rahman, Advocates—For the Petitioner.
Md. Khurshid Alam Khan, Advocate—For the Opposite Parties.
 
Civil Revision No. 2951 of 2006.
 
JUDGMENT
 
Md Abdur Rashid J.
 
1. Defendant No. 6 obtained the Rule upon making a revision application made under section 115( 1) of the Code of Civil Procedure against an order dated 21-6-2006 passed by Joint District Judge, Court No. 2 at Kishoreganj in Miscellaneous Appeal No. 38 of 2005, which reversed the order dated 28-9-05 of the Senior Assistant Judge of Kishoreganj passed in Other Class Suit No. 236 of 2002 and set aside the order of ad-interim injunction.
 
2. On or about 25-6-02 opposite party No. 1 as plaintiff instituted the suit against the petitioner and others for a decree declaring the memo 19-6-02 issued by defendant No. 1 canceling the licence for exhibition of cinema in the Universal Talkies Cinema Hall illegal, collusive, fraudulent, inoperative and without jurisdiction and not binding upon the plaintiff.
 
3. The petitioner got him added in the suit as defendant No. 6 by an order dated 31-1-05. Then, the petitioner on 26-2-05 made an application under Order XXXIX, rules 1 and 2 read with section 151 of the Code of Civil Procedure for temporary injunction for restraining the plaintiff from exhibiting cinema in the said cinema hall.
 
4. His grievance was mainly that the plaintiff was a tenant under him and stopped paying rents since 1999 and cancellation of the licence exhibiting cinema on 19-6-02 was therefore not illegal.
 
5. Upon the application, it appears, by an order dated 28-9-05 the trial Court issued a notice asking the plaintiff to show cause within seven days as to why such injunction would not be granted and also granted an ad-interim injunction restraining the plaintiff from exhibiting cinema until hearing of the application for temporary injunction.
 
6. Plaintiff challenged the order by presenting aforesaid appeal. On consideration of the pleadings of the parties and the materials produced, the Court of appeal below was of the view that said petitioner had got no scope of achieving any relief in the suit.
 
7. Upon the application, it appears, by an order dated 28-9-05 the trial Court issued a notice asking the plaintiff to show cause within seven days as to why such injunction would not be granted and also granted an ad-interim injunction restraining the plaintiff from exhibiting cinema until hearing of the application for temporary injunction.
 
8. Plaintiff challenged the order by presenting aforesaid appeal. On consideration of the pleadings of the parties and the materials produced, the Court of appeal below was of the view that said petitioner had got no scope achieving any relief in the suit.
 
9. It found that the plaintiff had got a prima facie and arguable case and the defendant had no chance of loss if the prayer for temporary injunction was refused. Upon such view, it allowed the appeal and set aside the order of the trial Court granting ad-interim injunction.
 
10. I have perused the revision application along with the affidavit-in-opposition and supplementary affidavit.
 
11. As stated hereinbefore that the suit was brought mainly against the letter dated 25-6-02 of the Deputy Commissioner and other Government functionaries cancelling the licence for exhibiting cinema.
 
12. Only grievance as appears from the case of the petitioner is, that the plaintiff was his tenant and stopped paying rents since 1999. Upon such grievance, the defendant has got no right to prevent the plaintiff from exhibiting cinema in exercise of right under the licence. Trial Court no doubt, erred in granting such prayer for ad interim injunction without notice to the plaintiff after a period of seven months of making the application for temporary injunction. Appellate Court below has therefore, rightly set aside such order of ad-interim injunction which resulted in no failure of justice.
 
13. In the result, the Rule is discharged with cost. The cost is assessed at Taka 5,000,00.
 
14. Order of stay granted at the time of issue of the Rule is hereby recalled and vacated.
Communicate at once.
 
Ed.