Kishore Kumar Prasad, J.@mdashIn this appeal, the order No. 9 dated 20.06.2005 passed by Shri N. Chatterjee, learned Judge, 11th Bench, City Civil Court, Calcutta in Title Suit No. 451 of 2005 is assailed by the appellant Smt. Ashalata Dutta. The respondent Nos. 1 & 2 viz. Smt. Gita Dutta & Shri Avik Kumar Dutta as daughter-in-law and grandson of the appellant herein had filed the aforesaid Title Suit for declaration and permanent injunction and in that suit an application under Order 39 rule 2 Rules 1 & 2 read with Section 151 of the CPC for grant of temporary injunction restraining the appellant from evicting them from the suit flat by execution of the Judgment and order passed by the learned Chief Judge, Small Causes Court, Calcutta in S.C.C. Suit No. 201 of 2001. The learned Trial Judge after hearing the parties and on consideration of the materials on record, disposed of the said application for temporary injunction in a slip shot manner directing the parties to maintain status-quo in respect of the residential portion of the plaintiffs (respondent Nos. 1 & 2 herein) out of the suit premises till disposal of the suit.
2. The plaintiffs'' case, bereft of unnecessary details and relevant for the points raised in this appeal in as follows:
3. The plaintiffs brought the aforesaid suit for declaration that Pashupati Dutta, since deceased, was the real, sole and absolute owner of the suit property which he acquired in the benam of his wife, the appellant herein; for declaration that they have one-forth undevided share in the suit property after the death of Pashupati Dutta; for declaration that plaintiff No. 1 being a widowed daughter-in-law has the right of maintenance including the right to reside in the suit premises No. 240-A, Acharya Prafulla Chandra Roy Road, Calcutta - 700 004 and for further declaration that the Judgment and order dated 30.07.2004 passed by the learned Chief Judge, Small Causes Court, Calcutta in respect of their title and status is bad, illegal and not binding upon them.
4. After entering appearance in the suit, the present appellant who is the wife of Pashupati Dutta filed Affidavit-in-Opposition contending, inter-alia, that the allegations of the plaintiffs were not only false and frivolous but also motivated. The appellant categorically denied all the material allegations of the respondent Nos. 1 & 2 herein. According to the appellant, the application for temporary injunction as also the suit was liable to be dismissed in view of the fact that the suit appears from the averments made in the plaint to be barred by Section 4(1) of the Benami Transaction (Prohibition) Act, 1988. The appellant had categorically stated that she had purchased the suit property out of her own "Stridhana"; that there was no contribution whatsoever by her deceased husband, Pashupati Dutta; that after purchase of the suit property, she as an absolute owner started residing therein along with her husband, sons and daughters; that her husband did never have any sort of right, title and interest over the suit property; that her sons and daughters including Ajit Kumar Dutta, the predecessor-in-interest of the plaintiffs had ever denied her absolute ownership over the suit property; that after the death of Ajit Kumar Dutta, she allowed the plaintiffs to reside and stay in the flat-in-question purely on permissive basis or as a licensee and the plaintiffs to avoid eviction pursuant to order of S.C.C. Suit No, 201 of 2001 have filed the aforesaid suit with an ulterior motive only to harass her and to cast cloud upon her exclusive right over the suit property. In fine, the appellant had prayed for dismissal of the application for temporary injunction.
5. The respondent Nos. 1 & 2 herein filed Affidavit-in-Reply to the purported Affidavit-in-Opposition filed on behalf of the appellant against the application for temporary injunction denying all the material allegations as made in the Affidavit-in-Opposition and contending, inter alia, that the purported averments made in the proceedings before the Small Causes Court had no bearing in connection with the instant suit and the purported order of recovery of possession passed in ignorance of the title of the respondent Nos. 1 & 2 was neither binding on the Trial Court nor upon these respondents in the instant case; that they had a fair case to go into trial and on the basis of the pleadings of the parties in connection with the application for temporary injunction; that a number of triable issues could be seen to emerge which can conclusively be determined only upon extensive trial on evidence and balance of convenience and inconvenience lies in favour of grant of the order of injunction as prayed for and if the order of injunction is refused, these respondents shall be dispossessed from the suit ,flat and shall suffer loss and injury which cannot be compensated in terms of money.
6. Elaborate arguments were advanced by the learned Counsels for the parties in support of their respective contentions on the merits of the case. It is not necessary nor is it desirable to enter into the merits of the case and express any opinion at this stage that may prejudice either of the parties at the final hearing of the suit.
7. It was strenuously submitted by the learned Counsel for the appellant that when the suit is itself is not maintainable, an order of injunction cannot follow. It was the contented of the learned Counsel for the appellant that in terms of provision of Section 4(1) of the Benami Transaction (Prohibition) Act. 1988, the plaintiffs'' case must be held to be barred and from the averments made in the plaint, the plaintiffs cannot avoid the rigour of Section 4(1) of the Act, 1988. The next contention of the learned Counsel for the appellant was that the burden is on the plaintiffs by evidence aliunde by affidavit or otherwise that there is "a prima facie case" in their favour, non-interference by the Court would result in "irreparable injury" to the party seeking relief and the "balance of convenience" must be in favour of granting injunction.'' learned Counsel for the appellant lastly contended that even assuming that the appellant had availed herself of the help rendered by her deceased husband for making up the sale consideration that would not make the Sale Deed a benami transaction in view of the word "provided" in Section 2(a) of the Benami Transaction (Prohibition) Act, 1988. learned Counsel relied on the decisions of the Hon''ble Apex Court and Patna High Court reported in
8. learned Counsel appearing for the respondent Nos. 1 & 2, on the other hand, supported the impugned order of the learned Lower Court and contended that as mentioned in Section 3 of Benami Transaction (Prohibition) Act, 1988 if a person purchases a property in the name of his wife or unmarried daughter, he can succeed in such suit or defence if he proves that the property although purchased in the name of wife or unmarried daughter, the same had not been purchased for the benefit of either of the wife or the unmarried daughter as the case may be, because of the statutory presumption contained in Sub-section (2) of Section 3 of the Benami Transaction (Prohibition) Act, 1988. In support of his contention, learned Counsel for the respondents relied on the decision of the Hon''ble Apex Court in the case of
6. Sub-section (1) of Section 3, as seen, prohibits a person from entering into any benami transaction, Sub-section (3) of Section 3, as seen, makes a person who enters into a benami transaction liable for punishment. Section 5 makes properties held benami liable for acquisition without payment of any amount. But, when Sub-section (2) of Section 3 permits a person to enter into a benami transaction of purchase of property in the name of his wife or unmarried daughter by declaring that the prohibition contained against a person in entering into a benami transaction in Sub-section (1) of Section 3, does not apply to him, question of punishing the person concerned in the transaction under Sub-section (3) thereof or the question of acquiring the property concerned in the transaction u/s 5, can never arise, as otherwise the exemption granted u/s 3(2) would become redundant. What we have said of the person and the property concerned in Sub-section (2) of Section 3 in relation to non-applicability of Section 3(3) and Section 5 shall equally hold good for non-applicability of the provisions of Sub-sections (1) and (2) of Section 4 in the matter of filing of the suit or taking up the defence for the selfsame reasons. Further, we find it difficult to hold that a person permitted to purchase a property In the name of his wife or unmarried daughter under Sub-section (2) of Section 3 notwithstanding the prohibition to enter into a benami transaction contend in Sub-section (1) of Section 3 cannot enforce his rights arising therefrom, for to hold so would amount to holding that the statute which allows creation of rights by a benami transaction also prohibits the enforcement of such rights, a contradiction which can never be attributed to a statute. If that be so, there can be no valid reason to deny to a person, enforcement of his rights validly acquired even in the past by purchase of property in the name of his wife or unmarried daughter by making applicable the prohibition contend in respect of filing of suits or taking up of defences imposed in respect of benami transactions in general by Sub-sections (1) & (2) of Section 4 of the Act. But, it has to be made clear that when a suit is filed or defence is taken in respect of such benami transaction involving purchase of property by any person in the name of his wife or unmarried daughter, he cannot succeed in such suit or defence unless he proves that the property although purchased in the name of his wife or unmarried daughter the same had not been purchased for the benefit of either the wife or the unmarried daughter, as the case may be, because of the statutory presumption contained in Sub-section (2) of Section 3 that unless a contrary is proved that the purchase of property by the person in the name of his wife or his unmarried daughter, as the case may be, was for her benefit.
7. Therefore, our answer to the question under consideration is that neither the filing of a suit not taking of a defence in respect of either the present or past benami transaction involving the purchase of property by a person in the name of his wife or unmarried daughter is prohibited under Sub-sections (1) & (2) of Section 4 of the Act.
8. Coming to the facts of the case on hand, the plaintiff had filed the suit in the High Court seeking relief in respect of properties alleged to have been purchased benami in the name of the defendant his wife. A learned single Judge rejected the application filed by the defendant in that suit seeking rejection of the plaint on the ground that the suit was barred u/s 4 of the Act. The order of rejection of that application was appealed against by the defendant in a First Appeal in the same Court. A Division Bench of the High Court reversed the order of the learned single Judge and granted the application of the defendant made in the suit seeking rejection of the plaint. It is that order which is now questioned by the plaintiff husband in this appeal. Since the plaintiff is the husband who had the right to enter into a benami transaction in the matter of purchase of property in the name of his wife or unmarried daughter, as we have held earlier, he is entitled to enforce his rights in the properties concerned if he can succeed in showing that he had purchased them benami in the name of his wife. But in view of the statutory presumption incorporated in Sub-section (2) of Section 3 of the Act, he can get relief sought in the suit only if he can prove that the properties concerned had not been purchased for the benefit of his wife, even if he succeeds in showing that the consideration for the purchases of the properties had been paid by him.
9. learned Counsel for the respondents further relied on the decision reported in
5... Even if the burden of proof does not lie on a party the Court may draw and adverse inference if he wlthholdes important documents in his possession which can throw light on the facts at issue. It is not, in our opinion a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof. In Murugesam Pillai v. Ghana Sambandha Pandora Sannadhi 44 Ind App 98 at page 103 :
''A practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing, accordingly, to furnish to the Courts the best material for its decision. With regard to third-parties, this may be right enough-they have no responsibility for the conduct of the suit, but with regard to the parties to the suit it is, in their Lordships'' opinion, and inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which would throw light upon the proposition.''
This passage was cited with approval by this Court in a recent decision - Bilto Ram v. Jainandan Prasad, Civil Appeal No. 941 of 1965, dated 15.04,1968 (SC). In that case, reliance was placed on behalf of the defendants upon the following passage from the decision of the judicial committee in Mt. Bilas Kunwar v. Desraj Ranjit Singh 42 I A 202 206 : AIR 1915 PC 96 at p. 98
But it is open to a litigant to refrain from producing any documents that he considers irrelevant; if the other litigant is dissatisfied it is for him to apply for an affidavit of documents and he can obtain inspection and production of all that appears to him in such affidavit to be relevant and proper. If he fails so to do, neither he nor the Court at his suggestion is entitled to draw any inference as to the contents of any such documents.
6. But Shah, J., speaking for the Court, stated:
The observations of the Judicial Committee do not support the proposition that unless a party is called upon expressly to make an affidavit of documents and inspection and production of documents is demanded, the Court cannot raise an adverse inference against a party withholding, evidence in his possession. Such a rule is inconsistent with illustration (g) of Section 114 of the Evidence Act, and also an impressive body of authority.
10. There is no quarrel with the proposition of law laid down in the case of
11. Placing reliance on the observation of the Hon''ble Apex Court reported in
12. Coming to the facts of the case on hand the plaintiffs had filed the suit seeking relief in respect of property alleged to have been purchased benami by Pashupati Dutta in the name of the appellant his wife. Since the appellant is the wife of deceased Pashupati Dutta who had the right to enter into a benami transaction in the matter of purchase of property in the name of his wife or unmarried daughter, the present plaintiffs as widowed daughter-in-law and grandson respectively are entitled to enforce their rights in the property concerned if they can only succeed in showing that the property had not been purchaed by deceased Pashupati Dutta in the name of his wife for her benefit in view of the statutory presumption incorporated in Sub-section (2) of Section 3 of the Act even if they succeed in showing the consideration for the purchase of property had been paid by Pashupati Dutta.
13. The pleadings in a suit cannot be compartmentalized, dissected, segregated and then read. The correct method of reading the pleadings is that they must read as a whole to ascertain their import. It is not possible to call out a sentence or passage and to read it out of context in isolation. The intention of the parties concerned is to be gathered primarily from the tenor and terms of the pleadings taken as a whole in the instant case, from the averments of the plaint as a whole and particularly on going through the specific averment as made in paragraph 3 of the plaint of the Paper Book to the effect that there was no intention on the part of Pashupati Dutta to purchase the suit property for the benefit of his wife or by way of advancement, it is undoubtedly clear that there is a prime facie fair and debatable case for the plaintiffs to go for trial which can only be determined upon extensive trial on evidence. It is no part of Court''s function at this interlocutory stage of the litigation to resolve conflicts on the evidence of affidavit as to the facts on which the claims of either party made ultimately depend not to decide difficult question of law which calls for detailed argument and mature consideration. The existence of the prima facie, right and infraction of the enjoyment of the 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. It is settled law that the grant of injunction is a discretionary relief. The exercise thereof is subject to the Court satisfying that
(1) there is serious disputed question to be tried in the suit and that an act, on the facts before the Court, there is probability of his being entitled to the relief asked for by the plaintiff/defendant;
(2) the Court''s inference is necessary to protect the party from the species of injury. In other words, irreparable injury or damage vould cause before the legal right would be established at the trial and
(3) that the comparative hardship or mischief or inconvenience which is likely to occur from withholding the injunction will be greater than that would be likely to raise from granting it.
14. It is now well settled that the Civil Court in an independent suit is entitled to go into all such questions irrespective of any order passed by a Small Causes Court because proceedings u/s 41 of the Presidency Small Causes Court Act, 1882 are not in the nature of the suit and an order passed therein does not amount to a decree as might be passed by a Civil Court. In this view of ours, we are fortified by a Division Bench Judgment of this Court in the case of
Although under the rules framed under the Act this application u/s 41 is initiated by a plaint there is no dispute that the proceeding is not a suit and the order for delivery of possession does not strictly speaking amount to a decree for recovery of possession. See Meherbai v. Phereaehaw Sarabji AIR 1927 Bom 656 (8). Indeed, Section 19 of the Act peremptorily provides, inter alia, that the Small Causes Court have no jurisdiction in suit for recovery of immovable property. The only question for consideration, therefore, is whether Section 18(1) of the Act of 1950 applies to an order for possession made u/s 43 of the Presidency Small Causes Court Act, 1882.
15. We are, therefore, of the view that the learned Counsel for the respondent Nos. 1 & 2 was perfectly right in making his submission that the order passed by the Small Causes Court does not shut out any adjudication in so far as the question of title was concerned and a defendant in proceeding u/s 41 is entitled to the suit for declaration of his title in the property inasmuch as any finding recorded u/s 41 would not be binding upon the Civil Court.
16. Coming now to other two important factors to be considered in grant of temporary injunction viz. ''balance of convenience'' and ''irreparable injury''. There is no controversy that the plaintiffs are in possession of the flat in question. After carefully considering the facts and circumstances of the case, it may be stated that at present the balance of convenience weighs in favour of the plaintiffs. If the impugned order of the learned Trial Court is. affirmed, the appellant defendant No. 1 and other defendants shall not be prejudiced in any manner whatsoever and shall continue to enjoy and occupy their respective portion of the suit premises like what they have been previously, but the plaintiffs will be greatly inconvenienced if they are dispossessed from their residential portion of the suit premises by the appellant/defendant No. 1 during the pendency of the suit. Furthermore, the mischief or inconvenience likely to arise from withholding injunction will be greater than which is likely to arise from granting it. Withholding of temporary injunction may also lead to multiplicity of the proceedings. As regards the question of irreparable loss and injury, there will be no wrong in accepting the submission of the learned Counsel for the respondent Nos. 1 & 2 that his clients will be put to irreparable loss and injury if they are dispossessed through machinery of Court pursuant to an order of the Small Cause Court before adjudication of this suit. In the circumstances, the order of injunction of the learned lower Court directing the parties to maintain status-quo in respect of the residential portion of the plaintiffs out of the suit premises till disposal of the suit should not be allowed to be disturbed.
17. In the context of what is stated above and after carefully considering the facts and circumstances of the case and the principle of law, we find no reason at this stage to differ with the ultimate conclusion of the learned lower Court. The impugned order of the learned lower Court does not suffer from any illegality or jurisdictional error which calls for interference by this Court.
18. The result is that there is no merit in the Appeal and the same is accordingly dismissed. The order under Appeal is affirmed. Any observation, made by this Court, is tentative and for the purpose of disposal of the instant appeal, and will not prejudice the interest of either party and the order passed by this Court, will not influence the learned Court below at the time of effective adjudication of the matter in dispute at the trial on merits.
19. In the facts and circumstances of the case, the parties are directed to bear their own costs.
20. Let a copy of this Judgment be sent to the learned lower Court for proceeding further with the case in accordance with law and its disposal within a period of six months from the date of communication of this order.
Urgent xerox certified copy, if applied for, be supplied to the parties expeditiously after complying with all legal formalities.
Arun Kumar Mitra, J.
21. I agree.
