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2011 DIGILAW 1476 (CAL)

Bimal Kumar Dinda v. Sisir Kumar Bera

2011-12-02

HARISH TANDAN

body2011
JUDGMENT: 1. THIS revisional application is directed against Order no. 32 dated 12th August 2003 passed by the learned Civil Judge, (Junior Division , 2nd Court, Contai, in Title Suit No. 199 of 2003, renumbered as Title Suit No. 115 of 2001, by which an application under Section 151 of the Code of Civil Procedure for implementation of the order of injunction is allowed. 2. IN a suit for declaration of title and permanent injunction an application for injunction, which was filed by the opposite parties, was disposed of by directing the parties to maintain status quo with regard to the nature and character of the suit land till disposal of the suit. After passing of the said injunction order, two inspections were held at the instance of the plaintiffs/opposite parties and one inspection at the behest of the defendant/opposite party. It is alleged by the plaintiffs/opposite parties in an application under Section 151 of the Code of Civil Procedure that in spite of an order of status quo, with regard to nature and character of the suit land, the defendant/petitioner, in gross violation of the said order of status quo, has made construction obstructing free ingress and egress. 3. THE defendant/petitioner puts stress upon the report of the Commissioner, appointed at his instance, to contend that there is no existence of any passage and as such, there cannot be implementation of the said order of status quo. 4. IT appears that the reason, assigned by the trial Court, for non acceptance of the report filed by the Commissioner, who was appointed at the behest of the defendant/petitioner, is that the same was not in conformity with the Records of Right produced by the parties before the trial Court. The trial Court has come to a positive finding that in between two inspections held by the same Commissioner, there has been obstruction in respect of -Ka- schedule property. A point has been taken before this Court that if there is a specific provision under the Code of Civil Procedure then inherent power under Section 151 of the Code of Civil Procedure should not be exercised. It is tried to be contended by the defendant/petitioner that if there is breach and/or violation and/or disobedience of an order of injunction, the remedy lies under Order 39 Rule 2A of the Code of Civil Procedure. 5. It is tried to be contended by the defendant/petitioner that if there is breach and/or violation and/or disobedience of an order of injunction, the remedy lies under Order 39 Rule 2A of the Code of Civil Procedure. 5. THERE is distinction between the provision contained under Order 39 Rule 2A of the Code of Civil Procedure and the inherent power, exercised by the Court under Section 151 of the Code of Civil Procedure, for implementation of an order of injunction. The legislature could not foresee and/or conceive all the possible eventualities and to mitigate such situation, the provision, contained under Section 151 of the Code of Civil Procedure, is incorporated; power for implementation of an order of injunction is one of such eventualities which could be granted by the Court in exercise of the inherent power under Section 151 of the Code of Civil Procedure. It is equally true that the supervisory jurisdiction under Article 227 of the Constitution of India cannot be equated with the appellate jurisdiction. The Court cannot reappraise the evidence while exercising its jurisdiction under Article 227 of the Constitution of India. I do not find any perversity in the impugned order warranting interference by this Court under Article 227 of the Constitution of India. Thus, the order impugned does not suffer from infirmity and/or illegality. 6. THE revisional application, therefore, fails. It is expected that trial Court shall make all efforts to dispose of the suit as expeditiously as possible, preferably within six months from the date of communication of this order, without granting unnecessary adjournments to either of the parties. There will be no order as to costs. Urgent photostat certified copy be supplied to the parties, if applied for, on priority basis.