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2012 DIGILAW 631 (CAL)

In Re v. STATE OF WEST BENGAL

2012-07-16

MURARI PRASAD SHRIVASTAVA, S.K.MUKHERJEE

body2012
Judgment 1. IN view of urgency pleaded by Mr. Shyama Prasanna Roychowdhury, learned senior advocate for the appellants, we take up this matter for hearing out of turn in presence of Mr. Diptendu Majumder, learned advocate for the respondent no. 1. This appeal will be heard. Records need not be called for. Issue usual notices. 2. MR. Diptendu Majumder, learned advocate appears and informs that his junior Mr. Tapas Kumar Chanda, learned advocate, has entered appearance on behalf of the respondent no. 1 by filing a caveat bearing no. 2413 of 2012 (S. R. Section) dated June 21, 2012. 3. THE office is directed to incorporate the caveat in the file. Mr. Roychowdhury, learned senior advocate appearing on behalf of the appellants, submits that his clients are not claiming any relief against the respondent nos. 2 to 6 in this appeal and the connected application. 4. THEREFORE, on the prayer of Mr. Roychowdhury, service of notice of this appeal and the connected application on the respondent nos. 2 to 6 is dispensed with at the risk of the appellants. Thus, the appeal becomes ready as regards service by appearance. 5. AS Mr. Majumder accepts notice of this appeal and the connected application, the appeal itself is taken up for hearing upon dispensation of all formalities. In a suit for declaration of title and for permanent injunction, an application for temporary injunction was moved and the learned trial judge by the order impugned restrained the defendant nos. 1 and 2, who are appellants before us, from transferring the suit property to any other party till July 18, 2012. 6. MR. Roychowdhury is right in his submission that the learned judge did not record his reasons as to how the object of granting the injunction would be defeated by delay unless an ad interim order of injunction was passed. However, a suit was instituted for declaration of title and for permanent injunction. 7. MR. Majumder, learned advocate appearing on behalf of the plaintiff-respondent no. 1, submits that his client is in possession of the suit property and any change of nature and character would cause prejudice to his client. 8. MR. Roychowdhury, learned senior advocate appearing for the defendants-appellants, on the contrary, submits, on instructions, that the possession of Mr. Majumder's client is admitted and the appellants are not going to disturb the possession of Mr. 8. MR. Roychowdhury, learned senior advocate appearing for the defendants-appellants, on the contrary, submits, on instructions, that the possession of Mr. Majumder's client is admitted and the appellants are not going to disturb the possession of Mr. Majumder's client except in accordance with law. 9. MR. Roychowdhury, further, submits that no prejudice shall be caused if a transfer is made inasmuch as Mr. Majumder's client is protected under Section 52 of the Transfer of Property Act, 1882. Mr. Majumder, in his usual fairness, accepts the proposal of Mr. Roychowdhury. 10. THEREFORE, the order impugned is modified to the extent that the defendant nos. 1 and 2- appellants shall not disturb the peaceful possession of the plaintiff-respondent no. 1 in the suit premises except in accordance with law. The parties and their agents are, also, restrained by an order of injunction from changing the nature and character or from causing any damage to the property-in-suit. Let the hearing of the application for temporary injunction be expedited. Let the written objection to the application for temporary injunction be filed by four weeks; reply thereto, if any, by two weeks thereafter. We trust and hope that the learned trial judge shall be able to dispose of the application for temporary injunction by December 2012. 11. WE, however, record that we have not gone into the merits of the claim and the counterclaim of the parties involved either in the suit or in the application for injunction and all points are left open and the learned trial judge shall be free to decide the matter in accordance with law. The appeal and the connected application are, thus, disposed of. We make no order as to costs.