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IN THE HIGH COURT AT CALCUTTA

CIVIL REVISIONAL JURISDICTION

APPELLATE SIDE

Before:

The Hon’ble Justice Hiranmay Bhattacharyya

CO 2084 of 2026

Exide Industries Ltd. & Anr.

Vs.

Dalhousie Holdings Ltd. & Ors.

with

CAN 1 of 2026

For the Petitioner no. 1 : Mr. Ratnanko Banerji, Sr. Advocate

Mr. Debnath Ghosh, Sr. Advocate

Ms. Urmila Chakraborty

….. advocates

For the Petitioner no. 2 : Mr. Soumabho Ghosh ….. advocate

For the Opposite Party no. 1 : Mr. Anirban Ray, Sr. Advocate

Mr. Debrup Bhattacharjee

Mr. Shubham Saha

Mr. Arjun Kumar Ray

Mr. Siddharth Singh

…… advocates

For the Opposite Party no. 7 : Mr. Jayanta Mitra, Sr. Advocate

Mr. Orijit Chatterjee

Ms. Swati Dalmia

Ms. Sabarni Mukherjee

Ms. Safura Ahmed …… advocates

Reserved on : 10.08.2026

Judgment on : 15.10.2026

Hiranmay Bhattacharyya, J.:-

1. This application under Article 227 of the Constitution of India is at the

instance of the defendant nos. 4 and 5 and is directed against an order

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being no. 5 dated 21.05.2026 passed by the learned District Judge 24

Parganas (S) at Alipore in Misc. Appeal No. 114 of 2026.

2. The order dated 20.04.2026 passed by the lear ned Civil Judge, Senior

Division, First Court at Alipore District 24 Parganas (S) in Title Suit no. 549

of 2026 thereby allowing the prayer for ad interim order of temporary

injunction was challenged by the petitioners in Misc. Appeal No. 114 of

2026. By the order impugned, the learned District Judge, rejected the prayer

for ad interim order of stay of operation of the ad interim order of injunction

passed by the learned Trial Judge.

3. The Opposite Party no. 1 filed a suit for declaration that the opposite party

no. 1 is sole legal owner of the suit property and for permanent injunction.

4. The case made out by the plaintiff/opposite party no. 1 in the plaint of the

said suit may be summarized hereunder as follows. For the sake of

convenience, parties are referred to according to their description in the Title

Suit.

The plaintiff became the sole legal owner of premises no. 13 Debendra

Lal Khan Road, Kolkata- 700027 by virtue of a registered deed of

conveyance dated 15.02.1962. The plaintiff holds the said property in

its capacity as trustee under a registered deed of declaration of trust

dated 15.11.1962. The lawful title in respect of the said property

vested exclusively upon the plaintiff. Plaintiff being the trustee held

the property for the benefit of the syndicate members while retaining

the exclusive legal title. As per the stipulations of the said deed of

trust any change or any transfer of the beneficial interest in any flat

could only be effected and recorded through a duly executed and

registered supplemental deed of trust with the participation of the

plaintiff as trustee. Five supplemental deeds of trust were executed

and registered from 1962 to 1982 recording its successive change in

the composition of the syndicate and the allocation of the flats. The

last of such registered supplemental deed of trust was the 5

th

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supplemental deed executed on 03.11.1982 which recorded the then -

current composition of the syndicate and the allocation of 34 specified

“Schedule B” flats among defendant nos. 1 to 7 as the then recognized

syndicate members. No registered instrument has been executed by

the plaintiff since 1982 recognizing or ratifying any change in the

composition of the syndicate or allocation of any flat. During the said

period the defendant nos. 1 to 7 have, without the knowledge, consent

or participation of the plaintiff as trustee, purported to transfer their

alleged beneficial interests in the suit flats, in favour of third parties,

through unregistered agreements which are void and legal ly

ineffective. Defendant no. 8 namely Minto Park Syndicate being an

association of such members has been an active participant in those

void transfers, collecting transfer fees from each of such transactions

while simultaneously withheld all information from the plaintiff being

the trustee. Plaintiff first became aware of the full extent of the

unauthorized transfers upon receipt of the reply dated 10.07.2025 of

the defendant no. 1 which for the first time disclosed that it had

entered into 7 unregistered agreements purpo rting to transfer its

interest in 7 flats to various third parties, in each case solely on the

basis of management committee resolutions of defendant no. 8 and

without any reference to or participation of the plaintiff as trustee. The

defendant nos. 2 to 7 have not intimated any change or transfers to

the plaintiffs in respect of the flats associated with their respective

allocations.

5. In the backdrop of such factual matrix, the plaintiff prayed for a declaration

that it is the sole legal owner of the suit property being no. 13, Debendra Lal

Khan Road, Kolkata- 700027 and for a further declaration that the

execution of a registered supplemental trust deed with the participation of

the plaintiff as trustee as the only recognized lawful mode of effecting or

recording any change in the trust structure, composition of the syndicate or

allocation or transfer of any interest in the suit flats and that any purported

arrangement, agreement or document not so executed and registered is

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incapable of creating, transferring or conferring any right, title or interest in

respect of the suit property and for a declaration that no right title or

interest of any nature whatsoever in respect of the suit flats or any portion

of the suit property subsists in the defendant nos. 1 to 7 or any person

claiming through or under them and that the plaintiff as trustee is entitled

to deal with the suit property free from any claim or interest of the

defendant nos. 1 to 7 or any person claiming through or under the syndicate

structure and for permanent injunction restraining the defendant nos. 1 to

8, the respective men agents, assigns and all persons claiming through or

under them from in any manner transferring, encumbering, alienating,

subletting, parting with possession of or creating any third party rights in

respect of the suit flats or any portion of the suit property and for other

consequential reliefs.

6. The opposite party filed an application under Order 39 Rule 1 and 2 of the

Code of Civil Procedure praying for an order of temporary injunction against

the defendant nos. 1 to 8 and/or any person claiming through them. The ad

interim order of injunction in similar terms was also prayed for in the

injunction application.

7. The case made out by the plaintiff in the injunction application is more or

less identical to the case made out in the plaint.

8. The learned Trial Judge by an order dated 20.04.2026 allowed the prayer for

ad interim injunction.

9. Being aggrieved by and dissatisfied with the aforesaid order the defendant

nos. 4 and 5/petitioners herein preferred the miscellaneous appeal. In

connection with the Miscellaneous Appeal the petitioners took out an

application for stay of operation of the ad interim order of temporary

injunction passed by the learned Trial Judge.

10. The learned District Judge, by the order impugned, rejected the prayer for

ad interim stay of operation of the order passed by the learned Trial Judge.

Being aggrieved the defendant nos. 4 and 5 have approached this Court.

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11. Mr. Banerjee, learned Senior Advocate appearing for the petitioners

contended that the Court is under a statutory obligation to direct issuance

of notice upon the opposite party before granting injunction. He further

contended that only in exceptional circumstances as contemplated under

Order 39 Rule 3 of the Code of Civil Procedure the Court can grant an

injunction without giving notice of the application to the opposite party but

in such cases the Court is duty bound to record reasons in writing for

passing an ex parte ad interim order of injunction.

12. Mr. Banerjee contended that the plaintiff has obtained the ex parte ad

interim order of injunction by suppressing the agreement dated 25.02.1961

between the plaintiff and several companies including the petitioners being

the syndicate members of Minto Park Syndicate. Mr. Banerjee contended

that the ownership of the flats allocated to the petitioners as mentioned in

the 2

nd

Schedule of the five registered supplemental agreements and more

particularly the 5

th

supplemental agreement dated 03.12.1982 stood

transferred and vested with all rights incident to ownership in favour of the

petitioners and the petitioners having been put in possession of the

respective flats and the consideration of the land and building have also

been paid by the petitioners to the original owners, the petitioners are

entitled to exercise all their rights as owners thereof and cannot be

restrained from exercising their ownership rights including dealing with the

flats in any manner whatsoever.

13. Mr. Banerjee contended that the learned Trial Judge without considering the

fact that the plaintiff failed to satisfy the urgency for passing an ex parte ad

interim order of injunction, passed a restraint order upon the defendant

nos. 1 to 8 from dealing with their property as a lawful owner thereof

without recording any reasons. Mr. Banerjee further submitted that the

learned Judge of the Appellate Court also failed to appreciate that the

learned Trial Judge passed an ex parte ad interim order of injunction

without recording any reasons as has been mandated in terms of proviso to

Order 39 Rule 3 of the Code of Civil Procedure.

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14. Mr. Banerjee submitted that an ex parte ad interim order of injunction can

be vacated by the High Court in exercise of powers under Article 227 of the

Constitution of India if the High Court finds that provisions contained in the

proviso to Order 39 Rule 3 of the Code of Civil Procedure has not been

satisfied. In support of such contention he placed reliance upon the decision

of the Hon’ble Supreme Court in the case of Time City Infrastructure &

Housing Ltd. v. State of U.P., reported at 2025 SCC OnLine SC 1674 .

15. Mr. Mitra, learned Senior advocate appearing for the opposite party no. 7

contended that there was no urgency for passing an ex parte ad interim

order of injunction by the learned Trial Judge. He contended that the 5

th

and last supplemental trust deed was executed way back in the year 1982

and the plaintiff approached the learned Trial Judge only in the year 2026

alleging that several flats are being transferred. He thus, contended that the

plaintiff was sleeping over its alleged rights from 1982 till 2026. He

contended that the plaintiff was well aware of the transfers made in the

meantime and have approached the Court at a belated stage with a frivolous

plea.

16. Mr. Mitra contended that as per the terms and conditions of the agreement

25.11.1961 each syndicate members are the beneficial owners of the

respective flats and they are in exclusive possession of such flats. He further

contended that in view of the specific dec laration made in the five

supplemental deeds of trust to which the plaintiff is a signatory, the plaintiff

do not have any right, title and interest in the suit flats. He further

contended that the members of the syndicate have paid the consideration

money for the purchase of the land and construction of the building

thereupon and are also in possession of the flats in question. He further

contended that the members of the syndicate are entitled to exercise their

rights of ownership in respect of the suit flats and the defendants cannot be

restrained from dealing with the flats in any manner whatsoever.

17. Mr. Mitra further contended that the ad interim order of injunction is liable

to be vacated for suppression of the agreement dated 25.11.1961 which is a

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relevant material. Mr. Mitra contended that the learned District Judge failed

to perform his duty as an appellate court by not staying the operation of the

ex parte ad interim order of injunction which was passed by ignoring the

mandate of the proviso to Order 39 Rule 3 of the Code of Civil Procedure.

18. Mr. Ray learned Senior Advocate appearing for the plaintiff seriously

disputed the contentions of Mr. Banerjee and Mr. Mitra. He contended that

after execution and registration of the last and 5

th

supplemental deed of

trust dated 03.11.1982 transfers were made by the defendant nos. 1 to 7

without the knowledge or participation of the plaintiff as the trustee. He

further contended that the plaintiff first became aware of the unauthorized

transfers upon receipt of the reply dated 10.07.2025 of the defendant no. 1

wherein it was disclosed that seven unregistered agreements have been

entered into purporting to transfer its interest in seven flats to various third

parties. He contended that in the plaint as well as in the injunction

application the plaintiff has narrated the facts and circumstances

necessitating passing of an ex parte ad interim order of injunction.

19. Mr. Ray contended that the learned Trial Judge after being satisfied with the

urgency involved in the matter passed an ex parte ad interim order of

injunction. He further submitted that the learned District Judge being

conscious of the scope and nature of an appeal under Order 43 Rule 1(r) of

the Code of Civil Procedure rightly refused to pass an ad interim stay of

operation of the order of injunction. He contended that in a Miscellaneous

Appeal arising out of an order granting temporary injunction, no stay of

operation of such an order should be granted by the appellate court. In

support of such contention he placed reliance upon the decision of the co-

ordinate benches in the case of In Re: Goutam Kumar Hada vs State

reported at (1994) ILR (1) Cal 72; Mobassor Hussain and ors. vs. Manik

Chandra Pal reported at (2005) 4 CHN 499; order dated 13.02.2020 passed

in CO 118 of 2014 in the case of Suman Biswas vs. Saroj Biswas and

another; order dated 06.10.2023 in CO 2890 of 2023 in Aniruddha Lahiri

and another vs. Anand Saraf and another; order dated 04.02.2026 in CO

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4350 of 2024 in the case of Smt. Rekha Bittar Hazra alias Rekha Bittar

vs. The Chairman, Bolpur Municipality.

20. Mr. Ray further contended that flats were transferred by the defendants

without the knowledge and participation of the plaintiff which amounts to

fraud being perpetuated by the defendants. He further contended that the

fraud perpetuated by the defendants were detected only upon receipt of the

reply letter dated 10.07.2025 and immediately thereafter the plaintiffs have

approached the Court by filing a suit and prayed for an order of injunction.

In support of his contention that a party should not be penalized for failing

to initiate legal proceedings when the facts and material necessary for him

to do so have been willfully concealed, Mr. Ray placed reliance upon a

decision of the Hon’ble Supreme Court in the case of Pallav Seth vs.

Custodian and Ors reported at (2001) 7 SCC 549.

21. Mr. Ray further contended that the scope of interference by the appellate

court in an appeal against an order of temporary injunction is very limited

and stringent and such interference is permissible if the order of injunction

passed by the learned Trial Judge suffers from perversity rather than a mere

error of fact or law. In support of such contention he placed reliance upon a

judgment of the Hon’ble Supreme Court delivered on 02.11.2024 in Civil

Appeal No. 13001 of 2024 in the case of Ramakant Ambalal Choksi vs.

Harish Ambalal Choksi reported at (2024) INSC 910. Mr. Ray further

contended that while exercising the supervisory jurisdiction under Article

227 of the Constitution of India the High Court has to see whether the

inferior court or Tribunal has proceeded within its parameters and not to

correct an error apparent on the face of the record, much less of an error of

law. In support of such contention he placed reliance upon a decision of the

Hon’ble Supreme Court in the case of Sadhana Lodh vs. National

Insurance Company and Another reported at (2003) 3 SCC 524.

22. Heard the learned advocates for the parties and perused the materials

placed.

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23. The question that arises for consideration is whether the learned Judge of

the Appellate Court was justified in rejecting the prayer for ad interim stay

of operation of the order of injunction passed by the learned Trial Judge.

24. The three well established principles for grant or refusal of temporary

injunction are as follows-

(i) Whether the petitioner has made out a prima facie case

(ii) Whether balance of convenience is in his favour and

(iii) Whether the petitioner would suffer irreparable loss and injury.

25. It is now judicially settled that in order to make out a prima facie case the

plaintiff need not establish his title. It is enough if the plaintiff can show

that he has raised a fair question as to the existence of a right which he

alleges. For grant of interlocutory injunction, the Court has to see that there

is a bona fide contention between the parties and then on which side, in the

event of success, lies the balance of convenience. At the interlocutory stage

the Court may only consider whether triable issues have been raised by the

plaintiff and whether substantial questions are to be investigated.

26. The Hon’ble Supreme Court in Dalpat Kumar vs. Prahlad Singh reported at

(1992) 1 SCC 719 held that existence of the prima facie right and the

infraction of the enjoyment of his property or the right is a condition

precedent 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. Prima facie case is substantial question raised, bona fide which

needs investigation and a decision on merits. The Hon’ble Supreme Court

held thus-

“5. Therefore, the burden is on the plaintiff, by evidence aliunde by

affidavit or otherwise, to prove 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 precedent 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

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substantial question raised, bona fide, which needs investigation and a

decision on merits. Satisfaction that there is a prima facie case by itself

is not sufficient to grant injunction. 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 injunction. The Court while

granting or refusing to grant injunction should exercise sound judicial

discretion to find the amount of substantial mischief or injury which is

likely to be caused to the parties, if the injunction is refused and

compare it with that which is likely to be caused to the other side if the

injunction is granted. If on weighing competing possibilities or

probabilities of likelihood of injury and if the Court considers that

pending the suit, the subject matter should be maintained in status quo,

an injunction would be issued. Thus, the Court has to exercise its sound

judicial discretion in granting or refusing the relief of ad interim

injunction pending the suit.

(emphasis supplied)

27. Ordinarily before granting injunction, court has to direct notice of the

application to be given to the opposite party. However, only in exceptional

cases where it appears to the Cour t that the object of granting the

injunction would be defeated by the delay in directing notice of the

application to be given to the opposite party before granting an injunction,

an injunction can be granted without giving notice of the application to the

opposite party. However, in such exceptional cases the proviso to Order 39

Rule 3 comes into play whereby the Court is under an obligation to record

the reasons for its opinion that the object of granting the injunction would

be defeated by the delay and require the applicant to take steps as provided

under Clause (a) and (b) to the proviso.

28. Recording of reasons as per the proviso to Order 39 Rule 3 of the Code of

Civil Procedure has been held to be mandatory by the Hon’ble Supreme

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Court in the case of Shiv Kumar Chadha v. Municipal Corpn. of Delhi,

reported at (1993) 3 SCC 161 the Hon’ble Supreme Court held thus-

“34. The imperative nature of the proviso has to be judged in the context

of Rule 3 of Order 39 of the Code. Before the proviso aforesaid was

introduced, Rule 3 said “the court shall in all cases, except where it

appears that the object of granting the injunction would be defeated by

the delay, before granting an injunction, direct notice of the application

for the same to be given to the opposite party”. The proviso was

introduced to provide a condition, where court proposes to grant an

injunction without giving notice of the application to the opposite party

being of the opinion that the subject of granting injunction itself shall be

defeated by delay. The condition so intro- duced is that the court “shall

record the reasons” why an ex parte order of injunction was being

passed in the facts and circumstances of a particular case. In this

background, the requirement for recording the reasons for grant of ex

parte injunction cannot be held to be a mere formality. This requirement

is consistent with the principle, that a party to a suit, who is being

restrained from exercising a right which such party claims to exercise

either under a statute or under the common law, must be informed why

instead of following the requirement of Rule 3 the procedure prescribed

under the proviso has been followed. The party which invokes the

jurisdiction of the court for grant of an order of restraint against a party,

without affording an opportunity to him of being heard, must satisfy the

court about the gravity of the situation and court has to consider briefly

these factors in the ex parte order. We are quite conscious of the fact

that there are other statutes which contain similar provisions requiring

the court or the authorities concerned to record reasons before

exercising power vested in them. In respect of some of such non -

compliance therewith will not vitiate the order so passed. But same

cannot be said in respect of the proviso to Rule 3 of Order 39. The

Parliament has prescribed a particular procedure for passing of an

order of injunction without notice to the other side under exceptional

circumstances. Such ex parte orders have far-reaching effect, as such a

condition has been imposed that court must record reasons before

passing such order. If it is held that the compliance with the proviso

aforesaid is optional and not obligatory, then the proviso by the

Parliament shall be a futile exercise and that part of Rule 3 will be a

surplusage for all practical purposes. Proviso to Rule 3 of Order 39 of

the Code, attracts the principle that if a statute requires a thing to be

done in a particular manner it should be done in that manner or not all.”

(emphasis supplied)

29. It, therefore, follows that recording of reasons by the Court for its opinion

that the object of granting the injunction would be defeated by the delay is

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mandatory in case the Court proposes to grant an injunction without giving

notice of the application to the opposite party. However, recording of reasons

as to the urgency is in addition to the satisfaction of the Court of the three

well settled principles for grant of injunction in case a Court is inclined to

pass an ad interim order of injunction.

30. In the case on hand the learned Trial Judge noted the case made out by the

plaintiff in the injunction application as well as the documents produced by

the plaintiff in support of the case made out in the injunction application.

After considering the registered deed of conveyance dated 15.02.1962 and

the declaration of the trust dated 15.11.1962 supported by KMC Property

Tax Receipt dated 31.03.2026 standing in the plaintiff’s name, the learned

Trial Judge arrived at a finding that the plaintiff’s title as registered owner

and trustee of the suit property has been established. The learned Trial

Judge also took note of the admission made by the defendant in the reply

letter dated 10.07.2025 that the interest of the defendants is that of “limited

beneficial interest” and upon going through the said reply letter the learned

Trial Judge returned a finding that all seven transfers were effected solely on

the basis of management committee resolution of the defendant no. 8

without any participation of the plaintiff as trustee. The learned Trial Judge

further took note of the various clauses in the unregistered agreements

dated 09.10.2015 and 21.06.2008 that were placed on record and arrived at

a finding that the said agreements expressly acknowledges that a registered

supplemental deed of trust with the participation of the trustees was

required to complete the transfer which admittedly was never executed. The

learned Trial Judge further observed that the said agreements being

unregistered and executed on a stamp paper of Rs. 100/- only renders them

void and legally ineffective in view of Section 54 of the Transfer of Property

Act, 1882 and Section 17 of the Registration Act, 1908. The learned Trial

Judge further observed that the defendant no. 8’s withdrawal of the forged

assessment form submitted to KMC is itself an admission that the said

document was not a valid document. The learned Trial Judge further

recorded a prima facie view that the persons in occupation through

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unregistered instrument cannot be said to have any recognized right and

title to resist the claim of the plaintiff as sole registered owner and trustee

and the balance of convenience favours protection of the plaintiff’s title

during the pendency of the suit.

31. The learned Trial Judge in details have recorded as to how the plaintiffs

have established their prima facie case. The learned Trial Judge further held

that the balance of convenience and inconvenience is entirely with the

plaintiff. The learned Trial Judge further held that any further dealing,

encumbrance or creation of third party interests in respect of the “Schedule

B” flats will give rise to complications incapable of being undone by a money

decree alone. The learned Trial Judge further noted that the plaintiff has

already submitted a chain of at least seven disclosed unregistered transfers

in respect of the flats of defendant no. 1 alone. The learned Trial Judge

ultimately held that the plaintiff will suffer irreparable loss and injury if

injunction is not granted.

32. The learned Trial Judge after recording in details that the three well settled

principles for grant of injunction namely prima facie case to go for trial;

balance of convenience and inconvenience and irreparable loss and injury

has been satisfied in the instant case proceeded to consider the aspect of

urgency. The learned Trial Judge held that if the notice is given of the

present suit to the defendants, it may further accelerate the dealings and

transfers in respect of the suit flats, create additional third party interest

and introduce further complication that would defeat the very relief sought

for in the said suit. The learned Trial Judge after recording that there is

sufficient cause for the plaintiff to move ex parte and after noting that the

title of the plaintiff is clear and the admission of the defendants is on record,

delay will defeat justice unless an immediate ad interim injunction is

passed.

33. Thus, the learned Trial Judge considered all the aspects including urgency

that are necessary for passing an ad interim order of injunction.

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34. This Court shall now consider whether the learned District Judge exercised

its appellate powers in accordance with law or not. Before answering the

said question it would be apt to take note of the scope of an appeal against

grant or non-grant of interim injunction.

35. The Hon’ble Supreme Court in Wander Limited vs. Antox India Pvt. Ltd.

reported at 1990 Supp SCC 727 held that in an appeal against an order of

interim injunction the appellate court will not interfere with the exercise of

discretion of the Court of the first instance and substitute its own

discretion, except where the discretion has been shown to have been

exercised arbitrarily or capriciously or perversely or where the Court has

ignored the settled principles of law regulating grant or refusal of

interlocutory injunctions. The appellate Court will not reassess the material

and seek to reach a conclusion different from the one reached by the Court

below. If the discretion has been exercised by the appellate court reasonably

and in a judicial manner, the fact that the appellate court would have taken

a different view may not justify interference with the trial courts exercise of

discretion.

36. The Hon’ble Supreme Court in Ramakant Ambala Choksi (supra) after

noticing the decision in Wanders Limited (supra) and various other

subsequent decisions held that with the passage of time the test laid down

in Wanders Limited (supra) as regards the scope of interference has been

more stringent over a period of time. The Hon’ble Supreme Court held that

the emphasis is now more on perversity rather than a mere error of fact or

law in the order granting injunction pending the final adjudication of the

suit. The Hon’ble Supreme Court held thus-

“32. The appellate court in an appeal from an interlocutory order

granting or declining to grant interim injunction is only required to

adjudicate the validity of such order applying the well settled principles

governing the scope of jurisdiction of appellate court under Order 43 of

the CPC which have been reiterated in various other decisions of this

Court. The appellate court should not assume unlimited jurisdiction and

should guide its powers within the contours laid down in the Wander

(supra) case.”

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37. The co-ordinate bench in Goutam Kumar Hada (supra) after noticing that

the scope of a Miscellaneous Appeal arising out of an order granting or

refusing to pass an ad interim order of injunction in the suit is whether the

order granting ad interim injunction passed by the learned Trial Judge is

legal or not, held that such an appeal should be heard expeditiously by the

lower appellate court but the lower appellate court should not pass any ad

interim order resulting practically allowing the appeal itself at the initial

stage without hearing the other side. The aforesaid proposition of law has

been reiterated in Mobasser Hussain (supra), Suman Biswas (supra),

Aniruddha Lahiri (supra) and Rekha Bitter Hazra (supra).

38. It logically follows from the aforesaid discussion that a Miscellaneous Appeal

arising out of order granting ad interim order of injunction should be

disposed of expeditiously but normally no stay of operation of the order

granting temporary injunction should be passed resulting practically

allowing the appeal itself at the initial stage.

39. Turning back to the impugned order this Court finds that the learned Judge

of the appellate court specifically noted that the learned Trial Judge

considered the documents that were placed on record and after perusing the

order of the learned Trial Judge held that the learned Trial Judge have

considered materials in its entirety with reference to urgency pleaded in the

injunction application and passed an ad interim injunction considering the

basic parameters namely prima facie case, balance of convenience and

inconvenience and irreparable loss and injury.

40. After going through the impugned order this Court is of the considered view

that the learned Judge of the appellate court was prima facie satisfied that

the learned trial judge passed the ad interim order of injunction keeping in

mind the proviso to Order 39 Rule 3 of the Code of Civil Procedure and the

settled principles of grant of injunction.

41. To the mind of this Court, the refusal to pass an ad interim order of stay of

operation of the order of injunction passed by the learned Trial Judge is in

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consonance with the proposition of law laid down in Goutam Kumar Hada

(supra).

42. At this stage it would be relevant to take note of the submission of the

learned senior counsels for the petitioners and the opposite party no. 7 that

the ad interim order of injunction was obtained by the plaintiffs by

suppressing a material document. Order 39 Rule 4 of the Code of Civil

Procedure provides for a remedy to a person dissatisfied with an order of

injunction in case a party has knowingly made a false and misleading

statement in relation to a material particular and the injunction was granted

without giving notice to the opposite party. In such a case upon an approach

being made by a party dissatisfied with the order of injunction, the Court in

exercise of its powers under Order 39 Rule 4 of the Code can vacate,

discharge, vary or set aside such order of injunction.

43. In the case on hand, the petitioners instead of approaching the learned Trial

Judge with an application under Order 39 Rule 4 of the Code alleging

suppression of material facts, made out a case of suppression in an

application for stay in the Miscellaneous Appeal.

44. As to whether the issue of alleged suppression of certain material

documents can be allowed to be raised in a Miscellaneous Appeal from an

ad interim order of injunction passed by the learned Trial Judge, this Court

refrains from making any observation on such issue at this stage. However,

since an allegation of suppression of material fact has been made out in the

stay application, an opportunity should be afforded to the plaintiff to deal

with such allegation.

45. This Court finds that the learned District Judge afforded an opportunity to

the respondents in the Miscellaneous Appeal to file written objection to the

stay application and fixed a date for hearing of the stay application and the

hearing of the appeal.

46. In Sadhana Lodh (supra), the Hon’ble Supreme Court held that the

supervisory jurisdiction of the High Courts under Article 227 of the

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Constitution of India is confined only to see whether the inferior court or

tribunal has proceeded within its parameters and not to correct an error

apparent on the face of the record, much less of an error of law.

47. In the case on hand the Miscellaneous Appeal and the stay application are

pending. Only the prayer for ad interim stay of operation of the order of

injunction was refused by the impugned order. To the mind of this Court,

the learned Judge of the Appellate Court proceeded within its parameters.

48. In Time City Infrastructure and Housing (supra), the Hon’ble Supreme

Court noted that the Hon’ble High Court under Article 227 of the

Constitution interfered with an order of injunction on the ground that the

Trial Court has passed the order in a cursory manner and has not recorded

any existence of a prima facie case, the balance of convenience or irreparable

hardship. No reasoning as has been mandated in terms of proviso to Order

39 Rule 3 of the Code of Civil Procedure has been recorded. The Hon’ble

Supreme Court after reiterating the proposition of law laid down in Shiv

Kumar Chadha (supra) that the proviso to Order 39 Rule 3 is mandatory,

held that if the Court is satisfied of non-compliance with the provisions

contained in the proviso, the ex parte order of injunction can be vacated.

The said decision is distinguishable on facts as this Court has already

observed that the learned Trial Judge has recorded reasons as to the

satisfaction of the tests laid down for grant of ad interim injunction. Thus,

the said reported decision cannot come to the aid of the petitioner.

49. In view of the aforesaid discussion this Court holds that the learned Judge

of the appellate court was right in rejecting the prayer for ad interim order of

stay of the order of injunction passed by the learned trial Judge.

50. For all the aforesaid reasons C.O. No. 2084 of 2026 stands dismissed. There

shall be, however, no order as to costs.

51. The learned Judge of the appellate court is requested to make an endeavor

to dispose of the Misc. Appeal along with connected applications strictly in

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accordance with law and as expeditiously as possible without granting

unnecessary adjournments to either of the parties.

52. Before parting, it is clarified that the finding recorded hereinbefore are only

to support the ultimate conclusions in this order and the learned Judge of

the Appellate Court shall proceed to decide the Miscellaneous Appeal and

the connected application in accordance with law and without being

influenced by the aforesaid observations.

53. Urgent photostat certified copies, if applied for, be supplied to the parties

upon compliance of all formalities.

(HIRANMAY BHATTACHARYYA, J.)