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2012 DIGILAW 714 (CAL)

Jiban Ratan Chatterjee v. Saktinath Mukherjee

2012-08-02

HARISH TANDAN, S.K.MUKHERJEE

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JUDGMENT: 1. ALTHOUGH the matter is appearing under the heading 'application', by consent of the parties, the appeal is taken up for hearing. All formalities are dispensed with. 2. MR. Saktinath Mukherjee, learned senior advocate, appears and accepts notice of this appeal on behalf of the respondents. 3. THIS is an appeal against an order passed by the learned trial judge declining to pass an ex parte ad interim order of injunction during the pendency of the application for temporary injunction in a suit for declaration and partition. 4. THE plaintiffs, who are the appellants before this Court, filed a suit for declaration of title and for partition in the court of the learned Civil Judge (Senior Division), Seventh Court at Alipore, District: 24 Parganas (South). The suit has been registered as Title Suit No.4843 of 2012. 5. IN such a suit, an application for temporary injunction was moved. The learned trial judge, by the order impugned, declined to pass an ex parte ad interim order of injunction. 6. THE suit was valued at Rs.20,00,200/- (Rupees twenty lac two hundred) only. 7. UNDER Section 21(1)(b) of the Bengal, Agra and Assam Civil Courts Act, 1887, the appeal against an order refusing to grant an ex parte ad interim order of injunction ought to have been presented before this Court. Curiously, the appeal was presented before the learned District Judge, who has not only entertained the appeal, but, also, passed certain interim orders. 8. THE defendants were aggrieved and, therefore, they had taken out revisional applications under Article 227 of the Constitution of India before this Court. It appears that four revisional applications being Civil Order nos.1492-1495 of 2012 were listed before the Hon'ble Justice Prasenjit Mandal. The revisional applications were disposed of by His Lordship, by judgment and order dated June 13, 2012, inter alia, by restraining the parties from transferring, disposing of or encumbering the nine flats being the owners' share in the suit property till the disposal of the miscellaneous appeal. 9. CHALLENGING the said order, the present appellants moved before the Supreme Court of India with an application for Special Leave under Article 136 of the Constitution of India. 10. THE Supreme Court of India, by judgment and order dated June 25, 2012, dismissed the Special Leave Petition, inter alia, by holding that the said arrangement suggested by this Court was an equitable arrangement. 10. THE Supreme Court of India, by judgment and order dated June 25, 2012, dismissed the Special Leave Petition, inter alia, by holding that the said arrangement suggested by this Court was an equitable arrangement. However, it was made clear that while deciding the main injunction application, the courts below should not be swayed away by any observation made in the order passed by the High Court in the said revisional applications. 11. THE miscellaneous appeal, which was preferred by these appellants, challenging the order of the trial court refusing to pass ex parte ad interim order of injunction was, eventually, transferred to the court of the learned Additional District Judge, Fifth Court at Alipore, District: 24 Parganas (South). At long last, it was noticed by the lower appellate court and the learned advocate for the parties that it had no jurisdiction to entertain the appeal. Therefore, by order dated July 5, 2012, the memorandum of appeal was returned to these appellants for presentation before the appropriate forum. Hence, this appeal. 12. MR. Jiban Ratan Chatterjee, learned senior advocate appearing in support of this appeal, strenuously, argues that the share of his clients will be more than nine flats in the property-in- suit. Therefore, these appellants are entitled to an order of injunction restraining the respondents from developing the premises-in-question. We feel when Supreme Court of India has, already, observed that the arrangements suggested by the revisional court during the pendency of the application for temporary injunction was equitable and declined to interfere with the order passed by the revisional court, we should maintain the order with a direction upon the trial court to dispose of the injunction matter expeditiously. 13. WE, thus, dispose of the appeal with the following directions: (i) The defendants are directed to file their written objections, if not already filed, by three weeks; reply thereto, if any, be filed by the plaintiffs by two weeks. (ii) The learned trial judge is requested to dispose of the application for temporary injunction peremptorily by November 30, 2012. The learned trial judge is requested not to grant any unnecessary adjournment to either of the parties while disposing of the application for injunction. (iii) During the pendency of the application for injunction, the parties are restrained by an order of injunction from transferring, alienating or encumbering the nine flats being the purported owners' allocation in the suit property. The learned trial judge is requested not to grant any unnecessary adjournment to either of the parties while disposing of the application for injunction. (iii) During the pendency of the application for injunction, the parties are restrained by an order of injunction from transferring, alienating or encumbering the nine flats being the purported owners' allocation in the suit property. However, if during the pendency of the application for injunction, the defendants transfer any flat to any third party out of the purported developers allocation, the defendants shall indicate in the deeds that such transfers are subject to the result of the application for temporary injunction by the trial court and that the purchasers shall not be entitled to claim any equity. 14. WE, however, make it clear the interim order passed by this Court shall subsist during the pendency of the application for injunction and the learned trial judge shall consider the application for temporary injunction independently and uninfluenced by any observation made by the Supreme Court of India, the revisional court or this Court inasmuch as the scope to consider the prayer for ad interim order of injunction and the scope to consider the prayer for temporary injunction upon exchange of affidavits are different. All points for consideration in the application for injunction are, therefore, left open. 15. IN view of disposal of appeal, the application for injunction, filed under C.A.N.6509 of 2012, is, also, disposed of. We make no order as to costs. 16. URGENT xerox certified copy of this order, if applied for, be given to the learned advocates for the parties, upon compliance of all formalities.