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Calcutta High Court · body

2013 DIGILAW 19 (CAL)

Debabrata Saha v. Kalpana Dey

2013-01-15

SANJIB BANERJEE

body2013
JUDGMENT The matter can be disposed of on a fundamental premise and it is surprising that neither the trial court nor the appellate court cared to look into the reliefs claimed in the plaint while granting the interlocutory order and affirming the same in appeal. 2. It is basic that the scope of an interlocutory application and the nature of order that can be passed at the interlocutory stage are governed by the frame of the suit and the nature of the reliefs claimed therein. If no final relief has been claimed in respect of a matter, no interlocutory order in respect thereof may be passed. 3. This is elementary and it is unfortunate that such a rudimentary rule has to be repeated for the benefit of the trial court and the Additional District Judge involved in this matter. 4. The petitioner herein is the third defendant in a suit. It is the undisputed position that the third defendant purchased a part of a property in Serampore from the plaintiff. The bone of contention is the entrance and exit door and the staircase on the southern side of the building. 5. The deed of conveyance records that sucharea would be a common area in the sense that the third defendant would have access thereto for the purpose of reaching the roof. It appears that following disputes between the parties, the third defendant saw to it that the municipal authorities slapped a notice on the plaintiff to stop further construction at the premises in question. The plaintiff has claimed several declarations and injunctions in the suit, including a specific injunction as against the third defendant for the third defendant to remove the electric meter fixed in the common area on the southern side to any portion which exclusively belongs to the third defendant. 6. On an interlocutory application in the suit, wherein third defendant has also lodged a counter-claim, the plaintiff sought an injunction restraining the third defendant from using the common area on the southern side and the trial court granted such order and the appellate court affirmed it. Unfortunately, none of the reliefs claimed in the suit can accommodate the interlocutory relief sought and obtained by the plaintiff and it appears that the interlocutory prayer made was in excess of the main reliefs for injunction claimed under prayers (h) and (i) of the plaint. 7. Unfortunately, none of the reliefs claimed in the suit can accommodate the interlocutory relief sought and obtained by the plaintiff and it appears that the interlocutory prayer made was in excess of the main reliefs for injunction claimed under prayers (h) and (i) of the plaint. 7. Since the plaintiff had not claimed any relief pertaining to the interlocutory order that it has obtained, such order has to be set aside and the plaintiff has to be restricted to the bounds of the suit and the reliefs claimed therein. 8. CO No. 2879 of 2012 is allowed by setting aside the order impugned dated June 25, 2012 passed in Misc. Appeal No. 125 of 2006 by the Additional District Judge, 3rd Court, Hooghly and by setting aside the trial court order no. 17, dated June 7, 2006. 9. However, nothing in this order will prevent the plaintiff from seeking appropriate interlocutory orders in respect of the matters covered by the main reliefs and, particularly, in respect of electric meter which has apparently been put up by the third defendant in the common area on the southern side. 10. The trial court is also requested to ensure that the suit is disposed of as expeditiously as the business of that court would permit. 11. There will be no order as to costs. Urgent certified photocopies of this order, if applied for, will be made available to the parties subject to compliance with all requisite formalities.