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2010 DIGILAW 433 (CAL)

Tapas Kr. Dhar v. Parvati Dhayawala

2010-04-26

DEBASISH KAR GUPTA

body2010
ORDER Debasish Kar Gupta, J. 1. This Revisional application is directed against an order dated February 17, 2010 passed by the Ld. District Judge, North 24 Parganas in Misc. Appeal No. 17 of 2010. By virtue of the impugned order, the Defendant /Petitioner was restrained from entering into any agreement for sale in respect of 60% of the constructed area in question with any third party till further orders. 2. The Plaintiff/opposite party filed a Title Suit No. 13 of 2010 for permanent injunction restraining the Defendant/ Petitioner from entering into an agreement for sale with third party or the intending purchaser without keeping 60% shares of the Plaintiff/opposite party as per terms and conditions of the agreement to raise further construction in the suit property. The learned Civil Judge, Senior Division, Second Court at Barsat, North 24 Parganas passed an order dated January 22, 2010 in connection with the petition filed by the Plaintiff/opposite party under Order 39 Rules 1&2 of the Code of Civil Procedure rejecting the prayer for passing an ad-interim injunction. The Plaintiff/opposite party preferred an appeal bearing Miscellaneous Appeal No. 17 of 2010. The learned District Judge, North 24 Parganas passed the impugned order. Hence, this Revision application. 3. It is submitted on behalf of the Petitioner that admittedly the agreement under reference was entered into by the firm, namely Radhashree Plaza. According to him, the partner of that firm was before the learned Court below. It is also submitted by him that, the provisions of Order 39 Rule 3 of the Code of Civil Procedure was not taken into consideration by the learned appellate Court while passing the impugned order. Because, no reason was assigned for passing an ad interim order of injunction. It is further submitted by him that the impugned ad-interim injunction was passed for an indefinite period. According to him, the same could not be sustainable in law in view of the settled principles of law. He relies upon the decision of Morgan Stanley Mutual Fund v. Kartick Das, reported in (1994) 4 SCC 225 : (1994 AIR SCW 2801). 4. It is submitted by the learned Counsel appearing for the opposite party that the ad interim order of injunction was passed by the learned Appellate Court on the basis of the specific findings with regard to the prima facie case as also the balance of convenience and/or inconvenience. 4. It is submitted by the learned Counsel appearing for the opposite party that the ad interim order of injunction was passed by the learned Appellate Court on the basis of the specific findings with regard to the prima facie case as also the balance of convenience and/or inconvenience. Therefore, those findings cannot be interfered with in this Revision application. 5. Having heard learned Counsel appearing for the respective parties as also taking into consideration the facts and circumstances of this case I find that the learned Appellate Court passed the ad interim order of injunction after taking into consideration the agreement entered into by the parties. The learned Appellate Court also took into consideration the prima facie case, balance of convenience and/or inconvenience in passing the ad interim order of injunction as an aid of the final relief. Therefore, those findings cannot be interfered with. 6. However, the impugned ad interim order of injunction was passed for an unlimited period. In view of the settled principles of law that was not permissible. Reference may be made to the decision of Shib Kumar Chadda v. Municipal Corporation of Delhi, reported in (1993) 3 SCC 161 . Reference may also be made to the decision of Morgan Stanley Mutual Fund v. Kartick Das (Supra). 7. In view of the above, the impugned order is modified only to the extent that the ad interim order of injunction will remain valid till the next date of hearing of the appeal and the learned appellate Court will consider the question of extension of the same on the next date of hearing after considering the objection of the Defendant/Petitioner, if any. In the event, a prayer is made for pre-ponding the next date of hearing of the appeal under reference by any of the parties, the learned Appellate Court will consider the same in accordance with law. 8. The Revisional application stands disposed of accordingly. 9. There will be, however, no order as to costs. Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis.