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PETITIONER: BATE KRISHNA  DAMANI (DEAD) BY HIS LRS.

       Vs.

RESPONDENT: KAILASH CHAND SRIVASTAVA & ANR.

DATE OF JUDGMENT11/11/1994

BENCH:

ACT:

HEADNOTE:

JUDGMENT: 1.   Leave granted. 2.      Bhagwan Das Damani, Predecessor-in-interest  of  the original  petitioner  Bate  Krishna  Damani,  now  dead  and represented  by his legal representatives, was the owner  of the  premises  -  Suit No. 5,  19--B  Bipin  Behari  Ganguli Street,  Calcutta  and  Mr. JM Solomon  and  has  wife  Ezy. Solomon  were  his tenant in the said premises. A  suit  for eviction of the tenant was filed, inter alia, on the  ground of  subletting of the premises to respondent No. 1.  Kailash Chand  Srivastava.  Respondent  No.  1  contested  the  suit (Ejectment Suit No. 102 of 1972) on behalf of the tenant  as his  constituted  attorney,  in  the  City  Civil  Court  at Calcutta. A decree for ejectment was passed in favour of the landlord  on  12.8.1994 by the Calcutta High  Court  in  the appeal  arising out of that suit: and the  respondents  were directed  to furnish an undertaking to vacate  the  premises within the specified period. The decree was put in execution since  the  respondents  neither gave  the  undertaking  nor vacated the premises. Respondent No. 1 instituted Title 133 Suit No. 947 of 1985 in the City Civil Court at Calcutta for a  declaration  that  he was entitled  to  occupy  the  said premises  and a permanent injunction to  restrain  execution proceeding for execution of the decree under Order 21,  Rule 97  of the Code of Civil Procedure. The wife  of  respondent No.  1  Smt. Jamuna Srivastava filed  an  application  under Order  21, Rule 108, C.P.C., which was rejected.  Respondent No. 1 then filed an application for temporary injunction  in the suit filed by him which was rejected by the Trial Court. Respondent  No.  1  filed  an  appeal  against  refusal   of temporary injunction.  On 14.8.1992, a Division Bench of the High  Court  dismissed the appeal of respondent No.  1.  The Division  Bench held that in the ejectment suit,  respondent No.  1  had  appeared as the  constituted  attorney  of  the Solomons  stating  therein that he was a  caretaker  without aggartion  of  any claim that he was a tenant  in  the  said premises.  After dismissal of that appeal, respondent No.  1 filed a review application. This review application has been allowed  by the Division Bench by the impugned  order  dated 12.0.1993  and  a  temporary in.junction  has  been  granted

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resulting  in stay of execution of the decree for  eviction. Hence this appeal by special leave. 3.     Having heard learned counsel for the parties, we  are satisfied that this appeal must be allowed. 4.     Narration  of  the undisputed  facts  stated  earlier leaves  no  doubt  that  there is no  ground  for  grant  of temporary injunction to restrain execution of the degree for eviction  at  the  instance of respondent No.  1.  Unless  a strong  prima  facie  case  in  favour  of  the   plaintiff- respondent No. 1 is made out, there is no occasion to  grant the temporary injunction which has the result of restraining execution  of a decree for eviction which has become  final. The  Trial  Court  refused the temporary  injunction  and  a Division Bench of the High Court dismissed the appeal  filed by  respondent  No.  1  against  refusal  of  the  temporary injunction. Indeed, it is extraordinary that thereafter  the temporary  injunction  was granted in a review  petition  on these admitted facts, Respondents No. 1 participated in  the ejectment suit contesting the same on bhalf of the  Solomons as  their constituted attorney claiming to be a  mere  care- taker  of  the Solomons and not a tenant directly  from  the landlord.  Moreover, in the execution proceedings, the  wife of  respondent  No.  1  made  an  objection  which  too  was rejected. In an application for temporary injunction made in the suit of respondent No. 1 thereafter, there was no  basis to  grant  the equitable relief of temporary  injunction  in favour  of the Respondent No. 1. We have no doubt that  this was  sheer  abuse  of  the process  of  court  resulting  in thwarting   execution   of  a  valid   decree   during   its subsistence.  In our opinion, there was no ground for  grant of  temporary injunction in such a suit filed by  respondent No. 1 much less grant of the same by an order made in review after  a Division Bench of the High Court had dismissed  the appeal of respondent No. 1 against refusal of the  temporary injunction  by  the Trial Court.  The impugned  order  must, therfore, be set aside. 5.      Consequently,  the appeal is allowed.  The  impugned order  dated 12.5.1993 is set aside resulting in refusal  of the temporary injunction claimed by respondent No. 1 in  his suit. The appellant would also get Rs. 10,000/- (Rupees  ten thousand) as costs from respondent No. 1. 134 The  executing court must proceed to execute the  decree  of eviction forthwith.