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Appeal from Order No. 53 of 1953, decided on 19th Novem ber 1953.
Perpetual, temporary or interlocutory‑Relief by speck performance or by injunction‑Distinction‑Civil Proce dure Code (V of 1908), O. XXXIX, rr. 1 & 2‑Speck Relief Act (1 of 1877) Ss. 54 & 55.
The law relating to injunctions is contained in the Civil Procedure Code, 1908 and the Specific Relief Act, 1877. The law as to perpetual injunctions is regulated by the Specific Relief Act, 1877, and as to temporary or interlocutory injunctions it is regulated by the Civil Procedure Code, 1908.
The Sharnnugger Jute Factory Co., Ltd., and another v. Rain Narain Chatterjee and others I L R 14 Cal. 189 ref.
Although the Specific Relief Act deals with perpetual injunc tions leaving temporary injunctions to be regulated by the Civil Procedure Code, 1908, the same principles in the Specific Relief Act, 1877 must equally apply to the granting of temporary injunctions and these are to be sought in the Specific Relief Act, 1877.
Nusserwanji Merwanji Panday and others v. Gordon and others I L R 6 Bom. 266 (279) ref.
Granting of temporary injunctions is a matter of judicial discretion, and if a Court which grants injunction rightly appreciates the facts and applies the true principles, there is a sound judicial discretion.
Issue of temporary or perpetual injunction is a form of specific relief. When a specific relief is granted by preventing a party from doing that which he is under an obligation (which includes every duty enforceable by law, vide section 3 of the Specific Relief Act) not to do, it is called preventive relief. This relief is to continue until the specified time named in the order. It is merely provisional in its nature and does not conclude a right. Its sole object is to preserve the subject in controversy without determining any question of right and to prevent further perpetra tion of wrong or the doing of any act whereby the right in controversy may be materially injured or endangered. In order to sustain an action for the preservation of a property or a right in issue in status quo, it is not necessary to decide in favour of the plaintiff upon the merits nor is it necessary that he should preset such a case as will certainly entitle him to a decree upon the final hearing, since he may be entitled to a temporary injunc tion although his right to relief prayed for may ultimately fail. In other words, in a case where a plaintiff prays for an injunction to be issued temporarily, it would be sufficient if it be shown that in the suit he has a fair question to raise as to the existence of the right alleged.
Though reliefs by specific performance and by injunction belong to the same branch of law, yet there is a distinction between the remedies, in that specific performance is directed to compel the performance of an active duty while an injunction is generally directed to prevent the violation of a negative duty.
The Court by an injunction ties up the hands of the defendant and preserves unchanged not only the property itself but also the relation of all the parties thereto. Again relief by way of issue of an injunction is granted by the principle of quia timet, and if the Court finds that there is a substantial question to be investigated and the matter to be preserved in status quo till the final determination of that question, it is a sufficient ground for granting an injunction.
Krishna Chandra Saha Sardar and others v. Hem Chandra Rai Choudhury 21 C L J 469 ref.
‑Grant matter of judicial discretion‑Civil Pro cedure Code (V of 1908), O. XXXIX, rr. 1 & 2.
The exercise of jurisdiction to grant relief by issue of an injunction is not a matter ex debito justitiae, but one which is purely within the discretion of the Court, and the latter is not bound to grant such relief merely because it is lawful to do so. The discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a Court of law. The question of discretion is usually a question of degree, and, when the Court is to exercise a dis cretion, it is to look to all the circumstances of the case.
Wilke's case 4 Burrough's Report 2539 and Harbans Sahai and others v. Bhairo Pershad Singh and others I L R 5 Cal. 259 (264‑265) ref.
Temporary‑Principles to be kept in view‑Civil Procedure Code (V of 1908), O. XXXIX, r. 1.
In the case of a temporary injunction (a) an applicant must show a fair prima facie case in support of the right claimed ; (b) an actual or threatened violation of the right ; (c) productive of irreparable or at least serious damage; (d) applicant's conduct must be such as not to disentitle him to assistance but it should be fair and honest and in particular there must be no acquiescence or delay ; (e) there must be a greater convenience in granting than refusing the injunction, and (f ) equally efficacious relief must not be obtainable by any other usual mode or proceeding.
S 43‑Recitals of admissions in judgment of Criminal Court‑Relevance‑Judgment of acquittal- How far relevant in subsequent civil suit.
Recitals of admissions in judgment in criminal cases are admissible in evidence in a subsequent civil suit between the parties in certain circumstances only but are otherwise inadmissible.
A judgment of acquittal in a criminal case only decides that the accused had not been proved guilty of the offence with which he had been charged and to this extent only and no more is it to be taken as correct and conclusive in a subsequent civil suit between the parties, the opinion and conclusions expressed in judgment being otherwise irrelevant and inadmissible in such proceeding.
Shaikh Barkat Ali v. Basant Nunia 21 C W N 175 ; Kashinath Pal v. Jagat Kishore Acharyya Chowdhury 20 C W N 643 ; Seethapati Rao Dora v. Venkata Dora I L R 45 Mad. 332 (F B) ; Gopikaraman Roy v. Atal Singh L R 56 I A 119 (125) ; Govinda Narayan Singh v. Sham Lai Singh L R 58 I A 125 (135 136) ; Pedda Venkatapathi v. Ganagunta Balappa L R 56 Mad. 641 ; Donald Weston v. Peary Mohan Das 18 C W N 185 (S B) and Ram Prakash Das v. Anand Das (1916) L R 43 I A 73 ref.
S. 144‑Decision regarding question of possession‑Not final.
Under section 144 of the Criminal Procedure Code, 1898 a summary power is given to Court to prevent a breach of peace and it is never meant to give jurisdiction to a Criminal Court to decide finally the question of possession and an order under section 144, cannot be treated as substantive evidence of possession.
Indrasan Rai v. Enayat Khan A I R 1952 Pat. 316 and Gita Prasad Singh v. King‑Emperor A I R 1925 Pat. 17 ref.
Can be granted to person out of possession.
An injunction can be granted at the instance of a complainant out of possession when irreparable injury is proved.
‑Delay in asking for, not fatal so long as matters remain in status quo.
Hamoodur Rahman, Maksumul Hakim and K. Hossain for Appellant.
Hamidul Huq, B. K. De and Ahamad Sobhan for Respondents.
.‑This appeal is by the plaintiffs against the order of the learned Subordinate Judge, first Court, Chittagong, dated the 17th January, 1953, rejecting the plaintiffs' prayer for a temporary injunction pending disposal of the plaintiffs' Other Suit No. 2 of 1953.
2. The plaintiffs instituted the present suit on the 5th January, 1953, for a declaration of their managing agency rights of the firm P. K. Sen & Sons for a term of three years on the basis of a contract and for a permanent injunction restraining the defendants from interfering with the management and working of the mills and factories of Messrs P. K. Sen & Sons by the plaintiffs as managing agents.
3. The material allegations in the plaint inter alia are that the proprietors of the firm Messrs P. K. Sen & Sons entered into two contracts with one Hazi Gulam Mohammad Dada, dated the 26th April and 25th May, 1950 to sell to the said Haji G. M. Dada or his nominee the properties and assets and good‑will of the firm Messrs P. K. Sen & Sons for 11 lacs of rupees; and, on receipt of 7 lacs of rupees as earnest money and in consideration of the balance to be paid on account of the dues of the said firm, the said Hazi G. M. Dada was put in possession of all the moveable and immoveable properties of the said firm. Then Hazi G. M. Dada for a consideration of rupees 91 lacs entered into an agreement with Hazi Ali Muhammad Bengalee to transfer all his rights, title and interest in the above properties and, in the said two contracts, dated the 26th April, and 25th May, 1950, to Hazi V. M. Bengalee ; and Hazi G. M. Dada wrote to Messrs P. K‑Sen & Sons to execute a conveyance in terms of the above agreements in favour of his nominee Hazi V. M. Bengalee or his nominee on receipt of the balance of the price and Hazi G. M. Dada put Hazi V. M. Bengalee in possession of the properties and assets of the firm Messrs P. K. Sen & Sons. Then, on the 25th December, 1950, Hazi V. M. Bengalee entered into a partnership with the defendants Ghoses for carrying on the business of the said firm agreeing that the defendants and Hazi V. M. Bengalee would have interests in the said partnership in the proportion of 60 per cent and 40 per cent respectively. Thereafter the said partnership was dissolv ed by a deed of dissolution, dated the 17th. December, 1951, and Hazi V. M. Bengalee retired, and, on payment of rupees 4 lacs, the defendants acquired the interest of Hazi V. M. Bengalee in the said firm thus the defendants became the sole proprietors of the said firm Messrs P. K. Sen & Sons and continued to run the said business being in possession of all its assets and properties in cluding the title deeds. Then the defendants entered into a fresh agreement with the firm Messrs P. K. Sen & Sons for the pur chase of all its assets and properties including the good‑will in confirmation of their previous contracts of sale with Hazi G. M. Dada, dated the 26th April, and 25th May, 1950, and a memorandum of agreement was executed by‑both the parties on the 10th February, 1952. The defendants having paid large sums of money to Hazi V. M. Bengalee and Messrs P. K. Sen & Sons for acquiring the business of the said firm and having been pressed by their creditors for their dues were in need of money and fin ancial assistance to run the aforesaid business. The defendants, therefore, approached the plaintiffs,‑ a registered partnership firm carrying on business at Chittagong, for an advance of rupees five lacs, and, on condition of appointing the plaintiffs as managing agents for the defendants and of the firm of Messrs P. K. Sen & Sons and on execution :of a security bond by the defendants for a sum of rupees five lacs mortgaging all the properties of the defendants and of some other persons who also joined in the security bond, a draft deed of agreement was executed between the parties on the 11th March, 1952, embodying all the terms and conditions appointing the plaintiffs as managing agents of that firm.
4. It is to be remembered that the original agreement, dated the 11th March, 1952, was not before the trial Court, nor is it before us. The agreement that was before the trial Court and is before us is one which has been admittedly executed on the 11th June, 1952 on a stamped paper ; and an additional agreement regarding payment of remuneration to the plaintiffs was also executed on the 11th June, 1952. Be it mentioned here that both the agreement and the additional agreement, though executed on the 11th June, 1952, the date of execution thereof remained as 11th March, 1952. The plaintiffs state that the original draft agree ment of the 11th March, 1952, has only been retyped on the 11th June without any alteration, while the defendants contend that the agreement of the 11th March, 1952, had been materially altered and the agreement before the Court was an ante‑dated one. We cannot decide the point here as the original draft agreement, dated the 11th March, 1952, is not before us.
5. To revert to the narration of the plaintiffs' case, the agreement between the parties provides inter alga (1) that the plaintiffs as managing agents of the firm P. K. Sen & Sons would manage the business of the firm for a period of three years being in possession of all the assets of the said business including all its books of accounts and documents relating to title and business, etc., (2) that the plaintiffs would get certain percentages of sale‑proceeds of the products and by‑products, (3) that the plaintiffs would deposit rupees two lacs with the Central Bank of India, Ltd., in the account of Sadananda Ghosh, (4) that the plaintiffs would operate upon the bank accounts of the defendants, (5) that the defendants would get a maximum amount of Rs. 3,000 per mensem as allowance and (6) that all the immovable properties of Messrs. P. K. Sen & Sons would be managed by the plaintiffs, who should account for the profits and income of the same. That on and from the date of execution of the said agreement, the plaintiffs made various payments, and upto the middle June, 1952, the defendants' liabilities to the plaintiffs amounted to Rs. 5,66,105‑10‑0, and that since the execution of the agreement the plaintiffs through their partners S. N. Gupta and Ram Kumar Maheswari obtained possession of the movable and immovable properties of Messrs P. K. Sen & Sons and have been acting as managing agents of that firm, and that the defendants by their various acts and commissions accepted the said position of the plaintiffs as managing agents and informed various parties connected with the business of the said firm about the assumption of the charge by the plaintiffs as managing agents. But, on the 20th June, 1952, the defendants turned round, and, it is alleged, with a malicious motive and with a view to injure the plaintiffs, forcibly removed 50 tins of mustard oil from a godown of the firm by breaking open the lock ; and for this a complaint was made by the plaintiffs in the Criminal Court, and the Crown prosecuted the defendants and others under various sections of the Pakistan Penal Code ; but the learned Magistrate by his judgment and order, dated the 23rd December, 1952, acquitted the persons on the finding that it was a civil dispute which could be decided by a competent Civil Court. It may be stated here that the said order of acquittal is now pending in this Court for revision. That since then the defendants have been asserting openly that they would interfere with and obstruct the management of the plaintiffs as managing agents of the said firm, and hence prayed that they should be perpetually restrained from disturbing or interfering in any way with the work of the plaintiffs as managing agents of the defendants and of the firm of Messrs P. K. Sen & Sons till the expiry of the period of 3 years of plaintiffs' appointment as such. The cause of action of the suit was stated to be the 20th June, 1952, when the defendants removed 50 tins of mustard oil in an illegal manner and on subsequent days when the defendants threatened the plaintiffs with violation of the terms of the contract by obstructing and interfering with the working of the plaintiffs as managing agents. Then, on the 6th January, 1953, the plaintiffs filed an application supported by an affidavit setting forth inter alia the allegations in their plaint praying for issue of "an order of temporary injunction restraining the defendants from interfering with and disturbing the management of the mills and factories of Messrs P. K. Sen & Sons by the plaintiffs as managing agents till the disposal of the suit" and the defendants were called upon to show cause by the 8th January, 1953, why an ad interim injunction should not be granted.
6. Defendants Nos. 2 and 3 did not appear but defendant No. 1 Sadananda Ghosh, after taking a short adjournment, filed on the 10th January, 1953, a fairly long objection stating inter alia that the defendants had been and were all along in possession and management of the mill and factory of Messrs P. K. Sen & Sons and that possession and management thereof were not delivered to the plaintiffs, nor the latter had ever managed the same, and that the agreement for management set up by the plaintiffs had not been acted upon and so the plaintiffs were not entitled to enforce it.
7. It is admitted on both sides that the defendants are the owners of the business styled Messrs P. K. Sen & Sons. It has not been seriously disputed either here or before the trial Court that the defendants executed an agreement of managing agency in favour of the plaintiffs and that agreement, as we find from the papers filed before the trial Court at the hearing of the ad interim injunction matter, was admittedly executed on a stamped paper on the 11th June, 1952, although it bore the date of 11th March, 1952. The defendants admitted the agreement but contended that it was not acted upon. The plaintiffs claimed under the agreement managing agency only of the firm P. K. Sen & Sons for a period of 3 years from the 11th March, 1952, and also claimed that they advanced large sums of money in carrying on the managing agency of the business in question in terms of that agreement. The defendants could not deny that at least a sum of over two lacs was advanced by the plaintiffs and that that sum had not been repaid. It is further an admitted fact that the managing agency agreement still subsists and it has not been revoked and that some advances of money made by the plaintiffs in terms of the managing agency agreement had not been dis charged by the defendants.
8. It is an admitted fact that on the 24th December, 1952, the defendants filed a petition before the learned trying Magistrate praying for exclusive possession of the mill premises and for restoring possession of any property seized in the case to the defendants ; and the learned Magistrate by his order, dated the 24th December, 1952, directed "the police to vacate the premises of the mills immediately returning any property they have seized in this case to accused Sadananda Ghosh, Susil Kumar Ghosh and Chintaharan Ghosh."
9. It is further an admitted fact that an order under section 144, Cr. P. Code, restraining the plaintiffs from entering into the premises and from interfering in any way with the defendants' possession and entry into the mill premises was made absolute by the Sub‑Divisional Officer (A), Chittagong, on the 5th January, 1953, against S. N. Gupta and some others. A petition to revise that order has been rejected by the Sessions Judge of Chittagong.
10. The learned Subordinate Judge has rejected the plain tiffs' prayer for temporary injunction, though he has found that "the managing agency agreement is there and it is not revokable under section 202 of the Contract Act and that the defendant does not say that the managing agency agreement has been revoked. It is not the defendants' case that any financial advance either in full or in part made by the plaintiffs has been discharged. Nevertheless the plaintiffs' right is also challenged by the defendants". It has further been found by the learned Judge that the security bond in favour of the plaintiffs is of no effect and that the plaintiffs can be compensated fully by money. It is also found by the learned Judge that the plaintiffs operated the bank account of the firm and obtained the bank's delivery order on behalf of the firm. The learned Judge then observes:
"But we find that on 18‑6‑52 (vide Magistrate's judgment) the defendant was selling the goods. Then on 20‑6‑52, the defendant removed some tins of oil from the mill premises and the plaintiff started a theft case in the Criminal Court. The Magistrate found that the defendants were in possession and acquitted the accused . . . . . the question of possession was considered with care and such consideration was necessary in that theft case."
Then the learned Judge refers to the orders of the Magistrate and the Sessions Judge under section 523, Cr. P. C., restoring to the defendants documents and properties of the firm seized by the police, and also the aforesaid order under section 144, Cr. P. Code, which was made absolute on the 5th January, 1953, and holds that "I find it impossible to say with any degree of certainty that the plaintiff is in actual management of the mill and the factory or is working the mill. I have no doubt in my mind that this is not a fit case for granting any temporary injunction." Hence this appeal by the plaintiffs.
11. We have given here long extracts from the judgment under appeal because both the contesting parties freely referred to those findings in the judgment in order to sustain their arguments and submissions in this Court.
12. Before we deal with the various questions raised in this appeal, we shall set out in brief the general principles governing a case like the present one.
13. The law relating to injunctions is contained in the Civil Procedure Code and the Specific Relief Act. The law as to perpetual injunctions is regulated by the Act, and as to tempo rary or interlocutory injunctions it is regulated by the Code of Civil Procedure. In the well‑known case of The Shamnugger Jute Factory Co., Ltd., and another v. Ram Narain Chatterjee and others (I LR14Cal.189), it has been ruled that the granting of an injunction is now regulated by sections 54 and 55 of the Specific Relief Act, which, in general terms, express the rules acted upon by the Equity Courts in England and introduced into this country, as they are in accordance with equity and good con science. Although the Specific Relief Act deals with perpetual injunctions leaving temporary injunctions to be regulated by the Civil Procedure Code, the same principles in the Specific Relief Act must equally apply to the granting of temporary injunctions and these are to be sought in the Specific Relief Act itself: see Nusserwanji Merwanji Panday and others v. Gordon and others (I L R 6 Born, 266 (279)). Then again granting of temporary injunctions is a matter of judicial discretion, and if a Court which grants injunction rightly appreciates the facts and applies the true principles, there is a sound judicial discretion.
14. Now the issue of temporary or perpetual injunction is a form of specific relief. When a specific relief is granted by preventing a party from doing that which he is under an obligation (which includes every duty enforceable by law, vide section 3 of the Specific Relief Act) not to do, it is called preventive relief. This relief is to continue until the specified time named in the order. It is merely provisional in its nature and does not conclude a right. Its sole object is to preserve the subject in controversy without determining any question of 6 right and to prevent further perpetration of wrong or the doing of any act whereby the right in controversy may be materially injured or endangered. In order to sustain an action for the preservation of a property or a right in issue in status quo, it is not necessary to decide in favour of the plaintiff upon the merits nor is it necessary that he should present such a case as will certainly entitle him to a decree upon the final hearing, since he may be entitled to a temporary injunction although his right to the relief prayed for may ultimately fail. In other words, in a case where a plaintiff prays for an injunction to be issued temporarily, it would be sufficient if it be shown that in the suit he has a fair question to raise as to the existence of the right alleged. It must be remembered that though reliefs by specific performance and by injunction belong to the same branch of law, yet there is a distinction between the remedies, in that specific performance is directed to compel the performance of an active duty while an injunction is generally directed to prevent the violation of a negative duty. The Court by an injunction ties up the hands of the defendant and preserves unchanged not only the property itself but also the relation of all the parties thereto. Again relief by way of C issue of an injunction is granted by the principle of quia timet, and if the Court finds that there is a substantial question to be investigated and the matter to be preserved in status quo till the final determination of that question, it is a sufficient ground for granting an injunction : see Krishna Chandra Saha Sardar and others v. Hem Chandra Rai Choudhury (21 C L J 469). Then again the exercise of jurisdiction to grant relief by issue of an injunction is not a matter ex debito justitiae, but one which is purely within the discretion of the Court, and the latter is not bound to grant such relief merely because it is lawful to do so. The discretion of the Court is not arbitrary but sound and reasonable guided by judicial principles and capable of correction by a Court of law. The question of discretion is usually a question of degree, and, when the Court is to exercise a discre tion, it is to look to all the circumstances of the case. We can do no better than to quote here the observations of Lord Mansfield in Wilke's case (4 Burrough's Report 2539), as quoted in the case of Harbans Sahai and others v. Bhairo Pershad Singh and others (I L R 5 Cal. 259 (264‑265)):
"Discretion, when applied to a Court of law, means discre tion guided by law. It must be governed by rule and not by humour. It must not be arbitrary, vague, and fanciful but legal and regular."
In any suit for restraining a defendant from committing a breach of contract or other injury, the plaintiff may at any time after commencement of the suit apply to the Court for tempo rary Injunction to restrain the defendant from committing any breach of contract or injury of alike kind arising out of the same contract or relating to the same property or right. It must be shown that the defendant has done something towards in fringing the plaintiff's right or it is so clear that he is on the point of doing something which will infringe the right of the plaintiff so that there is a prospect of immediate injury being suffered by the plaintiff unless he takes steps to stop the defendant's actions : see Ramjas Agarwalla v. Brajamohan Singh (19 C W N 887). In other words, in order to sustain a prayer for temporary injunc tion, it must be established in the first place that there is a legal right and that there is an injury, either actual or prospective, to that right. The relief by injunction must be (a) in a pending civil action ; (b) such suit must disclose a cause of action and (c) the Court must have general jurisdic tion to entertain it. Now, as jurisdiction of the Court is governed by strict equitable principles, it is not empowered to grant art injunction when the conduct of the applicant or his agent has been such as to disentitle him to the assistance of the Court. It cannot be disputed now that an Appellate Court can exercise its jurisdiction in granting temporary injunction. To summarise, in the case of a temporary injunction, (a) an applicant must show a fair prima facie case in support of the right claimed ; (b) an actual or threatened violation of that right ; (c) productive of irreparable or at least serious damage ; (d) his conduct must be such as not to disentitle him to assist ance but it should be fair and honest and in particular there must be no acquiescence or delay ; (e) there must be a greater convenience in granting than refusing the injunction, and (f) equally efficacious relief must not be obtainable by any other usual mode or proceeding. These principles shall have to be kept in our view in deciding the present controversy.
15. In deciding this appeal, we must closely observe another principle, namely, that we are anxious that we must not say anything that might embarrass the Court below in the issues and dispute between the parties.
16. We shall decide this appeal on the materials that placed before the learned Judge, and those other materials have been placed before us, and we have not allowed party to place before us any materials which were not before the learned Subordinate Judge, vide our order of the 13th November, 1953.
17. It may be stated at the outset on a consideration of the materials placed before us that the plaintiffs have alleged and made out a prima facie case regarding their appointment as managing agents of the firm Messrs P. K. Sen and Sons for a period of three years and that the defendants do not say that the said agency agreement has been revoked and that the finan cial advances made by the plaintiffs in pursuance of that agreement have been discharged by then. There is also the categorical finding of the learned Judge to that effect and we are bound to say that there is nothing prima facie that would entitle us to hold that the defendants did not appoint the plaintiffs as their managing agents and that they paid off the financial advances made by the plaintiffs as managing agents.
18. The first contention raised by the learned counsel for the appellants is that in spite of the aforesaid findings and in spite of the fact that the learned Subordinate Judge has observed at the beginning of his order that the plaintiffs can get an ad interim injunction only if their case is prima facie established but the learned Judge has been entirely wrong in rejecting the plaintiffs' prayer for temporary injunction without coming to any definite finding that the plaintiffs have failed to make out a prima facie case. We have read and re‑read the judgment of the learned Subordinate Judge and we hold that the learned counsel for the appellants is justified in his contention in this regard. The first essential to find in a case of temporary injunction is to see if the plaintiffs‑applicants have succeeded or not in showing a fair prima facie case in support of the right claimed by them. The learned Subordinate Judge finds that the plaintiffs' managing agency agreement subsists and has not been revoked by the defendants and that the plaintiffs made financial advances in terms of that agreement which have not been discharged by the defendants. The learned Advocate for the defendants could not show us anything to hold that the defendants revoked the managing agency agreement or that they discharged the financial advances made by the plaintiffs under that agreement. We find from the materials placed before us that the managing agency agreement was put in writing on a stamped paper on the 11th June, 1952, and that, on the 12th June, 1952, the plaintiffs, Messrs S. N. Gupta & Co., were put in possession of the mills and a hitch occurred on the 18th June, 1952, for the first time when liabilities much in excess of rupees 5 lacs were detected, and the defendant Sadananda did not turn up on the following day to make a settlement and was alleged to have removed several tins of mustard oil from the mills. These facts appear from the docu ments and papers relating to the period between the 12th and 20th June, 1952. They would clearly show that the plaintiffs have been able to make out a prima facie case. We, therefore, hold that the first contention on behalf of the plaintiffs is sub stantial.
19. It is next contended by the learned counsel for the appellants that the learned Subordinate Judge has not properly appreciated the case of the plaintiffs in the plaint and the reliefs asked for by them. It is pointed out and correctly pointed out by the plaintiffs‑appellants that the plaintiffs' case was one for a declaration of their right of managing agency for a certain period and for perpetual injunction restraining the defendants from interfering with the working and management of the mills and factories of Messrs P. K. Sen & Sons by the plaintiffs as managing agents till the expiry of the period of their appointment. In order to sustain these reliefs, the plaintiffs had to aver facts entitling the In to those reliefs, and that they did in their plaint. The learned Subordinate Judge assumed that the possession claimed by the plaintiffs in order to entitle them to the reliefs asked for in the suit must be actual physical possession and in that regard the plaintiffs failed. The learned Advocate for the defendants‑respondents have also tried to maintain before us in supporting the judgment of the trial Court that the plaintiffs' case was one of actual physical possession and that, as the plaintiffs have failed to make out and substantiate that case, they are not entitled to an order for temporary injunc tion. It appears to us that the learned Subordinate Judge has not fully appreciated the plaintiffs' claim to possession in the present case. It is the plaintiffs' case that the defendants are proprietors and owners of the firm P. K. Sen & Sons and are the principals ; and that the plaintiffs have been appointed as managing agents of that firm for a short period and that their principals, the defendants, have made over to them such pos session as they are entitled to in law as managing agents and that, while the plaintiffs were in such possession, their posses sion was interfered with and were threatened to be further interfered with. We can say from the few materials that were before the trial Judge and that have been placed before us that the plaintiffs have been able to make out a prima facie case, so far as it is necessary to find for the purpose of this appeal, which would entitle them to sustain their prayer for temporary injunction.
20. The learned Subordinate Judge has referred to the order in the criminal case for trespass and theft and to the orders under sections 144 and 523 of the Code of Criminal Procedure made in favour of the defendants in order to decide the question of temporary injunction. The defendants are not outsiders but the principals, and, as such, they are entitled to inspect the mill and the factory in their capacity as principals and owners, but they are not entitled to interfere with the management and' the working of the same, which, it may be said for the purpose of this appeal, here vested in the plaintiffs under the agreement and which right was made over to the plaintiffs. So it can be legitimately said that the learned Judge has not properly appre ciated the correct legal position in deciding the question of possession in the case. The learned Judge says that from the papers filed by both the parties it appears that the plaintiff's have no prima facie possession. But what those papers are not indicated in the judgment, so we cannot test this finding of the learned Judge. But we find amongst others that the defendants on the 14th June, 1952, wrote to the Tripura Modern Bank, Ltd., that the plaintiffs had been appointed managing agents of the firm on and from that date and that they would operate the account on behalf of Messrs P. K. Sen & Sons. Then again, on the 14th June, 1952, the defendants notified the staff of the firm that they had handed over the management of the concern to the plaintiffs who had been appointed as managing agents and that the management and affairs of the firm would be carried on and run by the plaintiffs. It is also in evidence that the cash of the firm was handed over to the plaintiffs on the 12th June, 1952. It further appears that the plaintiff firm' have advanced money to the extent of over a lac and 18 thousand rupees to the defendants on the 14th June, 1952. We also find that on the 17th and 18th June, 1952,, the plaintiffs paid the dues of the defendants' firm to different concerns. So, in this regard also, the learned Judge's order is defective and wrong and should not be allowed to stand.
21. It is next contended on behalf of the appellants that the learned Judge has erred in law in deciding the question of possession relying on the recitals in the judgment' of the criminal case for theft and trespass, and the finding in that judgment and in the orders under sections 523 and 144 of the Code of Criminal Procedure. The learned Judge observes:
"But we find that on 18‑6‑52 (vide, Magistrate's judgment) the defendant was selling the goods. Then on 20‑6‑52 the defendant removed some tins of oil from the mill premises and the plaintiff started a theft case in the Criminal Court. The Magistrate found that the defendants were in possession and acquitted the accused i.e., the defendants on 24‑12‑52. The Magistrate's finding on the question of possession is certainly of little effect in the Civil Court but the question of possession was considered with care and such consideration was necessary in that theft case."
Then the learned Judge refers to the orders of the Criminal Court under sections 523 and 144, Criminal Procedure Code, respectively directing restoration of possession of seized articles to the defendants and restraining the plaintiffs firm from entering into the mills. It may be stated that the orders under sections 523 and 144, Criminal Procedure Code, were passed on the basis of the order in the trespass and theft case. If the findings and recitals in the judgment of the trespass and theft case are inadmissible and ineffective in the present civil suit, the orders under sections 523 and 144, Criminal Procedure Code, would have very little effect in deciding the present controversy. Mr. Hamidul Huq for the respondents concedes, and rightly concedes, that the findings of the Criminal Court are not admissible in evidence, but Mr. Huq contends that the recitals in the judgment of the criminal case are binding because the recitals are based on admissions on behalf of the plaintiffs. The law on this subject is well established. Those admissions have not been placed before the trial Judge nor before us. So, those judgments are not admissible to decide the question of possession in this case. Recitals of admissions in judgments in criminal cases are admissible in certain circumstances only but are otherwise inadmissible: see Shaikh Barkat Ali v. Basant Nunia (21 C W N 175) where it was held that the statements of witnesses) who were not examined in the civil suit were wholly inadmissible. In Kashinath Pal v. Jagat Kishore Acharyya Chowdhury (20 C W N 643), it has been ruled that recitals in the judgment not inter partes cannot be used as evidence in a civil litigation. To the same effect is the decision in Seethapati Rao Dora v. Venkata Dora (I L R 45 Mad. 332 ( B)). In Gopikara man Roy v. Atal Singh (L R 56 I A 119 (125)), Sir John Wallis observed : " The Indian Evidence Act does not make findings of fact arrived at on the evidence before the Court in one case evidence of that fact in another case". To the same effect is the decision in Govinda Narayan Singh v. Sham Lal Singh (L R 58 I A 125 (135, 136)). The fact is that the judgment of a Criminal Court acquitting an accused can be used to establish only the fact that an acquittal has taken place as a fact in issue in the civil suit and not to ascertain the ground upon which the acquittal proceeded or the views of the trying Magistrate upon the evidence : Pedda Venkatapathi v. Ganagunta Balappa (I L R 56 Mad. 641) Sir John Woodroffe in the well‑known case of Donald Weston v. Peary Mohan Das (18 C W N 185 (S B)) observed that a judgment of acquittal only decides that the accused had not been proved to be guilty by the Crown of the offences with which he had been charged : and to this extent only and no more is it to be taken as correct and conclusive in a subsequent civil suit between private parties, the opinion and conclusions expressed in the judgment being other wise irrelevant and inadmissible in such proceeding. Therefore the learned Subordinate Judge has erred in law in deciding the question of possession relying on the finding and recital in the criminal case.
22. Mr. Hamidul Huq on behalf of the respondents has argued that though the finding and recitals in the judgment in the criminal case are not admissible in evidence to decide the question of possession of the firm, yet, the admission made by the plaintiff S. N. Gupta , in his evidence before the Criminal Court is admiss ible. It however appears from the evidence of that witness that there is no admission in that evidence that the plaintiffs did not possess the mill at the relevant time. Mr. Huq then argues that as the learned Magistrate has noted in the judgment of the criminal case that P. W. 12 Puranmal Rajgharia admitted that the plaintiffs did not get possession at the relevant time, that recital was admissible but that evidence was not before the trial Court nor is it before us. In order to make it admissible the entire evidence of those persons alleged to have made admissions should have been placed before the trial Judge and before us. But that has not been done. So the finding in the judgment in the criminal case on the basis of any such admission is entirely inadmissible and cannot be used for the purpose of establishing that the plaintiffs did not get and had no possession, because it is well established that such a recital in the judgment of a criminal case is not admissible in evidence. In Ram Parkash Das v. Anand Das, ((1916) L R 43 I A 73) a question arose whether one Ram Partab, defendant No. 2, was married. In a criminal case it was alleged that one Haman Lal made a statement on oath that defendant No. 2 was married. The Magistrate who tried that case stated in his judg ment that an admission of the marriage was made in the course of it. An offer was made in that case to produce a copy of the statement of Haman Lal, and that was resisted. In these circumstances, Lord Shaw observed at page 81 of the report:
"Their Lordships are of opinion that the note of the admis sion made to the Magistrate in the criminal case was rightly rejected as not being by itself evidence of fact recorded therein, and also that the objection of defendant No. 2 to the production of a copy of the evidence of Haman Lal was justified."
So, the finding as to possession in the criminal case was inadmiss ible in evidence and that the finding should not have been relied on in deciding the present civil dispute. We are not bound by the findings in the Criminal Court ; besides the decision in the criminal case is not for review in this Court or reference made by the learned District Judge of Chittagong. Therefore; the learned Judge of the Court below should not have decided the matter in dispute mainly relying on the decision of the Criminal Court on the question of possession.
23. The learned Subordinate Judge relied on the finding in the order under section 144, Criminal Procedure Code, as to possession for proving that the plaintiffs had no possession ; but under section 144 a summary power is given to prevent a breach of the peace and it is never meant to give jurisdiction to a Criminal Court to decide finally the question of possession, and an order under section 144, Criminal Procedure Code, cannot be treated as substantive evidence of possession : see Indrasan Rai v. Enayat Khan (A I R 1952 Pat. 316) and Gita Prasad Singh v. King‑Emperor (A I R 1925 Pat. 17). So the learned Subordinate Judge had erred in relying on the order under section 144 in deciding the question of possession.
24. In resisting this appeal, the learned Advocate for the respondents has argued that as the plaintiffs are not in possession they are not entitled to injunction unless they establish that the threatened injury would be irreparable. It is well established that an injunction will lie at the instance of a complainant out of possession when irreparable injury is proved. In this case it has been found by the trial Court that the plaintiffs have the right of managing agency. It is the plaintiffs' case that being elated at the result of the criminal case the defendants are threatening to inter fere with and obstruct the plaintiffs' management as managing agents and, if they succeed in doing so, the plaintiffs would suffer irreparable loss because they would not be able to recover the large sum of money, which they had admittedly advanced to the defendants, by any other means than out of the business carried on by the plaintiffs as managing agents: In the facts of the case we think that the plaintiffs have succeeded in making out a case that they will suffer irreparable loss unless an ad interim injunction is granted, and, in that view also, temporary injunction prayed for by the plaintiffs should not have been refused.
25. Mr. Huq for the respondents has argued that the plaintiffs are not entitled to assistance by temporary injunction because their conduct has not been fair as they have not performed their part of the agreement. It will suffice to say in repelling this contention of Mr. Huq that, in view of our findings, we do not find any substance in this contention on behalf of the respondents.
26. The learned Advocate for the respondents next contends that the plaintiffs have by their conduct disentitled themselves to the relief by way of temporary injunction because they made unusual delay in seeking that relief. It is true that a plaintiff is not entitled to relief by way of temporary injunction if there be acquiescence or delay. The question here is, have the plaintiffs delayed in bringing their suit in the trial Court and praying for temporary injunction. That question may be looked at from two points of view. Firstly, if that implied anything like acquiescence, and, secondly, did it apart from acquiescence, materially weaken the plaintiffs' claim to the relief asked for. To the first question, the plaintiffs' whole course of conduct and proceedings narrated before furnishing an emphatic answer in the negative. Since the invasion and disturbance of the plaintiffs' right of managing agency on the 20th June, 1952, the plaintiffs took immediate proceedings against the defendants in the Criminal Court, which went on till the end of December, 1952, or rather till the 5th January, 1953, the date of the order being made absolute in the proceeding under section 144 of the Code of Criminal Procedure, and, immediately on that very date, the plaintiffs filed the civil suit to get a declaration of their managing agency right and for perpetual injunction restraining the defendants from interfering with their work as managing agents of the mills and factory of Messrs P. K. Sen & Sons, and, on the 6th January, 1953, the plaintiffs prayed for relief by way of temporary injunction, but that prayer was rejected by the trial Court on the 17th January, 1953, and, on the 31st March, 1953, the plaintiffs lodged the present appeal in this Court and got an order for temporary injunction pending the hearing of the appeal by this Court on the 14th April this year. There is no acquiescence, therefore, on the part of the plaintiffs, and the plaintiffs have all along been protesting against the conduct and action of the defendants, namely, that their rights were being interfered with. Thus there is no acquiescence at all. Now putting acquiescence, however, out of the question, had the plaintiffs' delay disentitled them to the relief which they originally might have claimed It appears; however, that the plaintiffs have all along been struggling continuously with the inter ference of their rights of managing agency by the defendants. The plaintiffs' legal right to the relief will continue until it was barred by limitation. All that is urged here on behalf of the respondents is that the discretionary power of the Court as to granting relief by injunction should not be exercised in favour of the plaintiffs on account of subsequent delay. It is well established that delay is not material so long as matters remain in status quo, and it does not mislead the defendants or amount to acquiescence. It is not challenged that there has been any change in the status quo or acquiescence. Nor has it been shown to us that the delay comp lained of has either misled or prejudiced the defendant. In the circumstances prevailing in this case, the matter for material and important consideration is as has been expressed in the language of the Privy Council in the judgment in Lindsay Petroleum Company v. Hurd (L R 5 P C 239), cited in Jamnadas Shankarlal v. Atmaram Harijivan (I L R 2 Bom. 133 (138)):
"Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct or neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted in either of these cases, lapse of time and delay are most material. But in every case if an argument against relief, which otherwise would be just, is founded upon that delay of course not amounting to a bar by any statute of limitation, the validity of that defence must be tried upon principles substan tially equitable."
Therefore, even taking it as a point for consideration, the plaintiff delay down to the beginning of January, 1953, was sufficiently covered by various proceedings in which they were engaged ; their delay in the present case does not and cannot, under the circums tances, afford any reason for curtailing the plaintiffs' right of redress, and cannot, in the circumstances of the present case, be a ground for refusing the plaintiffs the appropriate relief, and more specially when there is no question that new rights and interests have meanwhile come into existence. So this contention of the learned Advocate for the respondents must be overruled.
27. Lastly, it has been contended, rather faintly, by the learned Advocate for the respondents that the plaintiffs are not entitled to an order for injunction because the provisions of Order XXXII, rule 2 of the Code of Civil Procedure on which the plaintiffs rely do not apply to this case, and, if those do not apply, there is no scope for the exercise by the Court of its inherent jurisdiction under section 151 of the Code of Civil Procedure. We are unable to accept this contention. The law in this regard is established and does not require to be related by citing authorities.
28. We have dealt with all the various contentions raised before us on behalf of both the parties by their respective Advocates in their very able and exhaustive arguments, and have considered the matter in all its various aspects on the basis of recognised principles, and have further taken into consideration the anxiety of both the contending parties as expressed to us by their respective Advocates that the original suit in which the prayer for temporary injunction has been refused should be finally disposed of as early as practicable. In the circumstances appearing in this case, and to which we have referred, we allow this appeal and set aside the order of the learned Subordinate Judge, 1st Court, Chittagong, dated the 17th of January, 1953 ; and in lieu thereof we order and direct the issue of a temporary injunction restraining the defendants‑respondents from interfering with and disturbing the management of the mills and factories of Messrs P. K. Sen & Sons by the plaintiffs as managing agents till the final disposal of Other Suit No. 2 of 1953 in the First Court of the Subordinate Judge at Chittagong.
29. In the circumstances of this case, we direct that the respondents must pay the costs of the plaintiffs‑appellants in this Court, except of the costs for preparation of the Paper‑book, and the hearing fee is assessed at 10 G. Ms.
30. As both the parties are anxious to get a final decision in Other Suit No. 2 of 1953 as early as practicable, we direct that the Court below should commence the hearing of the suit within 15 days from the date of arrival of the records in that Court. The records of the case should be sent down as early as practicable.
.‑I agree.
K. B. A./A. H. Order accordingly.
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