CRP 168/2011 BEFORE HON BLE MR. JUSTICE AMITAVA ROY The subject matter of challenge in the instant petition under section 115 of the Code of Civil Procedure, 1908 ( as amended) (for short, hereafter referred to as the ’Code’) read with section 151 thereof as well as Article 227 of the Const itution of India, is the judgment and order dated 11.2.2011 passed by the learne d District Judge, Kamrup, Guwahati in Misc Appeal No.8/2010. By the decision imp ugned, the learned lower appellate court affirmed the grant of temporary injunct ion vide order dated 12.11.2010 passed by the learned trial court in Misc (J) C ase No.18/2010 arising out of Title Suit No.272/2008. By the order of restraint, the petitioner, its employees and agents were prohibi ted from transferring any part of the suit property pending disposal of the afor ementioned suit. I have heard Mr AK Phookan, Senior Advocate assisted by Mr H.Das, Advoca te for the petitioner corporation and Mr L.Talukdar, learned counsel for the Opp osite party who has entered appearance through a caveat. The caveat stands disch arged. The factual backdrop in short, has to be outlined. The opposite party instituted Title Suit No.272/2008 against the petitio ner corporation praying for a decree inter alia for declaration and damages. Fol lowing the default by one M/s Ugom Udyog (P) Ltd to repay its loan to the petit ioner corporation, the latter took over possession of its industrial unit under section 27 of the State Financial Corporation Act, 1951 ( for short, hereafter r eferred to as the ’Act’) and in the sale thereof that followed, it (Opposite pa rty) purchased the concerned land, building at a consideration of Rs.30 lakhs. O ut of the aforementioned amount, at the first instance it paid an amount of Rs.1 9.63 lakhs, but defaulted to make payment of the rest in accordance with the te rms and conditions agreed upon between the parties. In view of the persistent d efaults on the part of the opposite party, the petitioner corporation retrieved the land, buildings, plants, machineries etc. earlier sold, from it. The petit ioner corporation also instituted Money Suit No.91/1999 against the opposite par ty and the decree that was passed concerning the same subject matter an amount of Rs.7.65 lakhs with interest as mentioned therein was awarded in its favour. It is in this background that questioning the action of the petitioner corporati on to invoke section 29 of the Act for the second time that the aforementioned T ile Suit No.272/2008 was instituted. Along with the plaint, an application was f iled by the opposite party under Order 39 Rule 1 and 2 of the Code read with sec tion 94 thereof seeking an order of temporary injunction to restrain the petitio ner corporation from transferring any part of the suit property. This was in vi ew of a notice dated 24.12.99 published in the local daily Assam Tribune indi cating the above developments. On the said application, the learned trial court granted temporary injunction as prayed for. The petitioner corporation filed its written statement contending inte r alia that the suit was barred by limitation as well as by the principle of res judicata. It also filed its written objection to the prayer for temporary injun ction pleading mainly want of prima facie case of the opposite party and that t here was no element of inconvenience and irreparable loss likely to be suffered by it if the relief of temporary injunction was not granted. In the appeal fil ed against the order of temporary injunction granted by the learned trial court , the plea of res judicata and the lack of essential ingredients for the grant of injunction as contemplated by the court was highlighted. The decision render ed in Money Suit No.91/99 was also referred . The scope and ambit of section 29 of the Act was also underlined. The learned lower appellate court however, sustained the order of tempo rary injunction granted by the learned trial court observing that the pleas of bar of limitation and res judicata ought to be decided at the trial. Accordin g to it, in the facts and circumstances of the case, the interim restraint if li fted would result in great inconvenience and irreparable loss to the opposite pa rty. Mr Phookan has urged that as the bar of limitation and the res judicata have a decisive bearing on the maintainability of the suit of the opposite part y, the learned courts below ought to have recorded their decision thereon while considering the entitlement of the opposite party to grant an injunction in the attending facts and circumstances. As in the background amongst others of the d ecision rendered in Money Suit No.91/99, Title Suit No.272/2008 instituted by t he opposite party was clearly barred by res judicata, there existed no prima f acie case for grant of an injunction. As the suit was also barred by limitation on the face of the record, the learned courts below erred in law and on facts i n granting the interim relief by overlooking this vital aspect of the controver sy, he urged. According to the learned senior counsel, as the order of injunctio n passed by the learned trial court and affirmed by the learned lower appellate court suffer from errors on fundamental principles of law and those are liable to be interfered with. Mr Talukdar in reply has urged that the learned courts below having rig htly assessed the pleadings of the parties and other materials on record and t he relief granted being equitable and discretionary in nature, no interference on the grounds pleaded ought tobe made. On being queried by this court, it is submitted at the Bar that issues h ave been framed amongst others on the aspects of limitation and res judicata. On the comprehension of this Court, having regard to the mutual orientation of t he parties and in absence of the prayer made in the instant petition for interim suspension of the judgment and order impugned, it would be appropriate to reque st the learned trial court to select the issues relating to the limitation and res jujdicata as preliminary issues before embarking on the trial of the suit as a whole. Ordered accordingly. It is made clear that this court has not offere d any comment on the merits of the rival contentions and the learned trial cou rt would decide the preliminary issues as above on the basis of the pleadings of the parties and the evidence if adduced and in accordance with law without i n any way beinig swayed by its observations and findings recorded in the order dated 12.4.20110 in Misc(J) Case No.18/2010 and also in the order presently imp ugned in the instant proceeding by the lower appellate court. As the dispute is a protracted one, in the interest of early resolution of the issues, the lea rned trial court is requested to hear and dispose of the preliminary issues wi thin a period of six(6) weeks from the date of receipt of the certified copy of this order. The petition stands disposed in the above terms. No costs.