Bate Krishna Damani Vs. Kailash Chand Srivastava
& Anr  INSC 576 (11 November 1994)
Das Damani, Predecessor-in-interest of the original petitioner Bate Krishna Damani,
now dead and represented by his legal representatives, was the owner of the
premises - Suit No. 5, 19--B Bipin Behari Ganguli Street, Calcutta and Mr. JM
Solomon and has wife Ezy.
were his tenant in the said premises. A suit for eviction of the tenant was
filed, inter alia, on the ground of subletting of the premises to respondent
No. 1. Kailash Chand Srivastava. Respondent No. 1 contested the suit (Ejectment
Suit No. 102 of 1972) on behalf of the tenant as his constituted attorney, in
the City Civil Court at Calcutta. A decree for ejectment was passed in favour of the
landlord on 12.8.1994 by the Calcutta High Court in the appeal arising out of
that suit: and the respondents were directed to furnish an undertaking to
vacate the premises within the specified period. The decree was put in
execution since the respondents neither gave the undertaking nor vacated the
premises. Respondent No. 1 instituted Title 133 Suit No. 947 of 1985 in the City Civil Court at Calcutta for a declaration that he was entitled to occupy the said
premises and a permanent injunction to restrain execution proceeding for
execution of the decree under Order 21, Rule 97 of the Code of Civil Procedure.
The wife of respondent No. 1 Smt. Jamuna Srivastava filed an application under
Order 21, Rule 108, C.P.C., which was rejected. Respondent No. 1 then filed an
application for temporary injunction in the suit filed by him which was
rejected by the Trial Court.
No. 1 filed an appeal against refusal of temporary injunction. On 14.8.1992, a
Division Bench of the High Court dismissed the appeal of respondent No. 1. The
Division Bench held that in the ejectment suit, respondent No. 1 had appeared
as the constituted attorney of the Solomons stating therein that he was a
caretaker without aggartion of any claim that he was a tenant in the said
premises. After dismissal of that appeal, respondent No. 1 filed a review
application. This review application has been allowed by the Division Bench by
the impugned order dated 12.0.1993 and a temporary in.junction has been granted
resulting in stay of execution of the decree for eviction.
appeal by special leave.
Having heard learned counsel for the parties, we are satisfied that this appeal
must be allowed.
Narration of the undisputed facts stated earlier leaves no doubt that there is
no ground for grant of temporary injunction to restrain execution of the degree
for eviction at the instance of respondent No. 1. Unless a strong prima facie
case in favour of the plaintiff- respondent No. 1 is made out, there is no
occasion to grant the temporary injunction which has the result of restraining
execution of a decree for eviction which has become final.
Trial Court refused the temporary injunction and a Division Bench of the High
Court dismissed the appeal filed by respondent No. 1 against refusal of the
temporary injunction. Indeed, it is extraordinary that thereafter the temporary
injunction was granted in a review petition on these admitted facts,
Respondents No. 1 participated in the ejectment suit contesting the same on bhalf
of the Solomons as their constituted attorney claiming to be a mere care- taker
of the Solomons and not a tenant directly from the landlord. Moreover, in the
execution proceedings, the wife of respondent No. 1 made an objection which too
was rejected. In an application for temporary injunction made in the suit of
respondent No. 1 thereafter, there was no basis to grant the equitable relief
of temporary injunction in favour of the Respondent No. 1. We have no doubt
that this was sheer abuse of the process of court resulting in thwarting
execution of a valid decree during its subsistence. In our opinion, there was
no ground for grant of temporary injunction in such a suit filed by respondent
No. 1 much less grant of the same by an order made in review after a Division
Bench of the High Court had dismissed the appeal of respondent No. 1 against
refusal of the temporary injunction by the Trial Court. The impugned order
must, therfore, be set aside.
Consequently, the appeal is allowed. The impugned order dated 12.5.1993 is set
aside resulting in refusal of the temporary injunction claimed by respondent
No. 1 in his suit. The appellant would also get Rs. 10,000/- (Rupees ten
thousand) as costs from respondent No. 1.
The executing court must proceed to execute the decree of eviction forthwith.