FAO 1/2009 BEFORE HON’BLE MR. JUSTICE B.K. SHARMA. HON’BLE MR. JUSTICE C.R. SARMA. JUDGMENT AND ORDER (ORAL) (BK SHARMA,J.)- This appeal is directed against the order dated 01.07.2008 passed by the learned Civil Judge, Jorhat in Misc.(J) Case No.10/2008 arising out of Title Suit No.7/ 2008. By the said order, the learned trial Court has granted the prayer of ad-i nterim injunction to the effect that till disposal of the suit, the defendants/o pposite parties No.1, 2 and 4 shall not alienate the property in question (Sched ule-B to the plaint) to the defendant/opposite party No.5. Further direction is sued is that all the defendeants/opposite parties should maintain status quo as on the date of passing of the order in respect of the suit property. 2. The title suit has been instituted by the respondent- plaintiff with the following prayer :- It is, therefore, prayed that the Court be pleased to pass a decree - (1) Leave U/O 2 R 2 CPC be granted. (2) Declaring that the partnership name & style as ’Cally Building’ is till in existence and the terms of partnership agreement is binding on all the partne rs of the firm. (3) Declaring that unless and until the partnership is wound up as per terms of the agreement and the account of the partners are settled either amicably or through process of Court the property shown in Schedule ’A’ is not divisible. (4) Granting permanent injunction against the defendant No.1 to 4 restrainin g them from alienating suit land as shown in schedule ’B’ of the plaint or any property of the schedule ’A’ land to the defendant No.5 or to any person/person s whomsoever. (5) Any other relief/reliefs as may be available be also granted. (6) Cost of the suit be decreed. 3. In paragraph 12 and 13 of the plaint, it has been stated as follows :- 12. That the plaintiff from some reliable sources came to know that the defendan t No.1 to 4 is going to dispose of the properties allegedly being their share in the suit patta and on enquiry it came to light that the defendant Nos. 1 to 4 e ntered into a registered agreement for sale bearing No.136 dated 26.07.07 with t he defendant No.5 for sale of the suit land for a consideration of Rs.60,00,000. 00 (Rupees sixty lacs) only and received an amount of Rs.2,00,000.00 (Rupees two lacs) only in advance. 13. That suddenly on 3.2.08 defendant No.1 to 4 with help of some hired persons forcefully occupied the building standing over the suit land by removing all the materials of the plaintiff. The plaintiff immediately informed the matter to th e Officer-in-Charge, Jorhat Police Station and matter is under investigation. 4. Along with the plaint, the petitioner has also filed an application unde r order 39 (1) and (2) read with Section 151 CPC for granting temporary injunc tion as prayed for with the prayer that the defendants/opposite parties No.1 to 4 be restrained from alienating the land shown in Schedule-B to the plaint in fa vour of the defendant/opposite party No.5 or to any other person and also to dir ect the defendants/ opposite parties to maintain status quo in respect of the su it land. 5. On receipt of notice etc. the defendants have entered appearance and fil ed their written statement and objection to the prayer for injunction. In the w ritten statement filed by the defendants No.1 to 4, it has been clearly stated t hat the land in question has already been sold out to the defendant No.5 i.e. th e present appellant vide Sale Deed No.149/08 dated 4.2.2008. It has also been st ated that the possession of the suit property has already been handed over to th e defendant No.5. Such sale deed was executed and possession was handed over be fore institution of the suit. 6. In the written statement filed by the defendant No.5 i.e. the present ap pellant, the aforesaid stand of the defendants No.1, 2, 3 and 4 has been reitera ted with the statement that he has purchased the land and has been occupying the same as lawful owner. 7. In view of the aforesaid stand of the defendants in the written statemen t and objection to the prayer for injunction, it was to be considered as to whe ther the prayer of the plaintiff for restraining the defendants No.1 to 4 from a lienating the land in favour of the defendant No.5 had become infructuous at the time of filing the suit. The learned trial Court in its order dated 1.7.2008, e ven after noticing the aforesaid fact of sale/purchase of the land in question a nd possession of the same by the defendant No.5/appellant has passed the ad-inte rim injunction restraining the defendants No.1 to 4 from alienating the propert y in question in favour of the defendant No.5 i.e. the appellant. It is in thi s context, the trial Court has also issued direction to all the defendants/oppos ite parties to maintain status quo as on the date of the order in respect of the suit property. 8. We have heard Mr. P.K. Kalita, learned counsel appearing for the appella nt as well as Mr. N. Choudhury, learned counsel representing the plaintiff/respo ndents. 9. While Mr. Kalita, learned counsel representing the appellant submits tha t the order of injunction is prima facie bad in law inasmuch as it does not take into account the factual aspect of the matter disclosed in the written statemen t. On the other hand, Mr. Choudhury, learned counsel representing the respondent s while submitting that even if the order relating to alienation of the property is not sustainable in view of the fact that the same was already alienated, but later direction contained in the impugned order to maintain status quo in resp ect of the property is required to be maintained. 10. We have given our anxious consideration to the submissions made by the l earned counsel for the parties and the materials on record. The suit has been i nstituted with the prayers quoted above. In the application under Order 39 Rule 1 and 2 CPC, the prayer was to restrain the defendants No.1 to 4 from alienatin g the particular property in favour of the defendant No.5 i.e. the appellant. Th e said prayer has become infructuous in view of the fact that much before the in stitution of the suit, the property in question was sold to the defendant No.5/a ppellant. He also took possession of the land. This aspect of the matter having been brought to the notice of the Court by filing the written statement and obj ection, the learned trial Court ought to have considered the same instead of mec hanically passing the order restraining the defendants No.1, 2 and 3 from alien ating the property to the defendant No.5/appellant. 11. In view of the above, we have no hesitation to interfere with the impugn ed order dated 1.7.2008 passed by the learned Civil Judge, Jorhat in Misc. (J) C ase No.10/2008 arising out of Title Suit No.7/2008. 12. Appeal is allowed. Let the LCR be transmitted to the learned trial Court . It is hereby provided that the learned trial Court shall dispose of the matter as expeditiously as possible. 13. At this stage, Mr. N. Choudhury, learned counsel for the plaintiff-respo ndent submits that unless the status quo in respect of the property is directed to be maintained during the pendency of the suit, it may lead to multiplicity of litigations. According to him, since the interlocutory remedy is intended to pr eserve in status quo the rights of the parties, which may appear on a prima faci e case and having regard to the facts and circumstances involved in the case, an order directing the defendants to maintain status quo by the learned trial Cour t is required to be maintained. According to him, if the order of status quo p assed by the learned trial Court is maintained by the defendant No.5/appellant, he will not suffer any irreparable loss and injury, as he is in possession of th e suit property. In this connection, he has placed reliance on a decision of the Apex Court reported in 1990 (Supp) SCC 727 (Wander Ltd. & Anr. V. Antox India P . Ltd.). 14. Countering the above argument, Mr. P.K. Kalita, learned counsel for the defendant No.5/appellant submits that the plaintiff/respondent cannot pray for sustaining the order to maintain status quo, which was passed by the trial Court in the context of the prayer made for restraining the defendants from alienatin g the property to the defendant No.5/appellant. He further submits that the par tnership firm is no longer in existence. The partition having already been affir med by the Assam Board of Revenue, the plaintiff/respondent without any pleading on material fact, cannot pray for maintaining the order of status quo. He has a lso placed reliance on the decision of the Apex Court reported in (2008) 2 SCC 5 07 (Ajay Mohan & Ors. V. H.N. Rai & Ors). 15. The factual aspect of the matter has been noted above. The plaintiff/re spondent while filing the suit with the prayer for injunction, had given the co lour as if there was no alienation of the suit property in favour of the defenda nt No.5/appellant. Only a vague statement has been made regarding execution of the agreement for sale and possession of the property by the defendants. The in junction order was passed by the learned trial Court in spite of the fact that t he real factual aspect of the matter was brought to the notice of the Court in t he written statement and written objection filed against the prayer for injuncti on. In the written statement and written objection, it was clearly spelt out tha t the suit property was already sold out and the defendant No.5 was in possessio n of the same. Admittedly, there is no amendment to the plain bringing on recor d all the subsequent events. It is in this connection, Mr. P.K. Kalita, learned counsel for the defendant No.5/appellant has placed reliance on the decision in Ajay Mohan (supra). 16. In Wander Ltd. (supra), the Apex Court while observing that the interloc utory remedy is intended to preserve in status quo, the rights of the parties, w hich may appear on a prima facie case, has also been observed that the appellate Court will be entitled to interfere with the exercise of discretion of the Cour t of first instance and substitute its own discretion where the discretion is sh own to have been exercised arbitrarily or capriciously or perversely or where th e Court has ignored the settled principles of law regulating grant or refusal o f interlocutory injunctions. 17. In the instant case, the learned trial Court did not take into account t he aforesaid fact. The property was already alienated in favour of the defendant No.5/appellant. Although the same was brought to the notice of the Court by fil ing written statement and written objection against the order of injunction, the trial Court mechanically passed the impugned order without attending and apprec iating the said relevant fact in our considered opinion, the plaintiff/responden t cannot pray for maintaining the part of the injunction order which is intrinsi cally related to the first and main part of the order, which we have set aside a nd that too, without basic facts being pleaded in the plaint. 18. For all the aforesaid reasons, we are not inclined to accept the prayer made by Mr. N. Choudhury, learned counsel appearing for the plaintiff/respondent . 19. Appeal is allowed with the aforesaid direction.