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2013 DIGILAW 11 (MEG)

Satyanarayan Jiwan Ram v. Md. Illias

2013-05-07

T.NANDAKUMAR SINGH

body2013
Order Heard Mrs. PDB Baruah, learned counsel for the petitioners and Mr. S.S. Das, learned counsel for the respondents. 2. It appears from the record and from the submissions of the learned counsel for the parties that the eviction suit filed by the present respondents against the present petitioners went up to the highest Court i.e. the Supreme Court of India and the SLP filed by the present petitioners in the Supreme Court had already been dismissed. 3. It appears from the submissions of the learned counsel for the parties that later on, the petitioners filed the suit for declaration that the earlier decree passed by the Court is not binding to the present petitioners and it was ended on compromise. Thereafter, the petitioners filed T.S. No. 8(H)/2009 before the Court of Assistant District Judge in respect of the same suit land for declaration that the parties should be bound by the compromise decree. 4. In that T.S. No. 8(H)/2009, the petitioners filed an application for temporary injunction. According to the learned counsel for the petitioners, the learned trial Court passed an order restraining the respondents from constructing the building on the suit land. During the pendency of the suit, the trial Court was of the view that a local inspection was required. After a local inspection, the learned trial Court was of the view that there was element for compromise. Accordingly, the learned trial Court had formulated the terms of settlement and furnished the copies to the parties for their observations. The parties had submitted their observations to the terms of settlement formulated by the learned trial Court. The learned trial Court after perusal of the observations made by the parties to the terms of settlement formulated as well as the report of local inspection was of the considered view that there is no element of settlement. 5. Mrs. Baruah, learned counsel appearing for the petitioners strenuously contended that once the learned trial Court formulated the terms of settlement, the learned trial Court is bound to refer the terms of possible settlement for arbitration or conciliation or judicial settlement including through Lok Adalat. This Court is of the view that the learned trial Court has to decide as to whether or not there is element of settlement between the parties. If there is no element of settlement between the parties, the learned trial Court shall proceed with the case. This Court is of the view that the learned trial Court has to decide as to whether or not there is element of settlement between the parties. If there is no element of settlement between the parties, the learned trial Court shall proceed with the case. In the present case, the learned trial Court vide impugned judgment and order is of the view that there is no element of settlement between the parties and therefore decided to proceed the main suit and the injunction matter. 6. Mrs. Baruah, learned counsel for the petitioners also contended that on the application filed by the present respondents, the learned trial Court framed a preliminary issue as to whether the suit is maintainable or not. She further contended that the maintainability of the suit should not be decided without hearing the petitioners. In this regard, this Court is of the considered view that at least an opportunity should be given to the petitioners before deciding the issue whether the civil suit filed by the petitioners is maintainable or not. Accordingly, the learned trial Court should give an opportunity to the petitioners to put up their case regarding the issue i.e. maintainability of the suit. 7. It is also made clear that the learned trial Court should hear the petitioners, if any order, is to be passed in the application for temporary injunction. 8. With the above observations and directions, this revision petition is disposed of by directing the learned trial Court to proceed with the hearing of the injunction as well as the preliminary issue as to whether the suit is maintainable or not as expeditiously as possible. Order accordingly.