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2013 DIGILAW 344 (CAL)

Abdur Rahaman v. Md. Abdul Hye

2013-06-18

PRASENJIT MANDAL

body2013
Judgment :- Prasenjit Mandal, J. This application is at the instance of the plaintiff and is directed against the Order No.3 dated March 17, 2009 passed by the learned Additional District Judge, 1st Court, Barasat in Misc. Appeal No.39 of 2009 thereby reversing the Order No.3 dated March 17, 2009 passed by the learned Civil Judge (Senior Division), 1st Court, Barasat in Title Suit No.141 of 2009. The petitioner along with the proforma opposite party herein instituted a suit for partition being Title Suit No.141 of 2009 and they filed an application under Order 39 Rule 1 & 2 of the C.P.C. for temporary injunction along with a prayer for ad interim injunction. That application for temporary injunction was moved on March 17, 2009 and by the impugned order, the learned Trial Judge directed both the parties to maintain status quo in respect of the suit property as it stood on that day till April 16, 2009. Being aggrieved by such an order the defendant / opposite party herein preferred an appeal being Misc. Appeal No.39 of 2009 which was allowed on contests thereby setting aside the impugned order. Being aggrieved by such judgment and order, this application has been preferred by the plaintiff. Upon hearing the learned Advocates of both the sides and on perusal of the materials on record, I find that the plaintiff / petitioner herein has wrongly described the order under challenge in this application. In fact, the Misc. Appeal No.39 of 2009 had been allowed on contests on April 17, 2009 and that judgment and order dated April 17, 2009 passed by the Appellate Court is under challenge before this Hon’ble Court. Therefore, though a wrong description has been made, this application is treated as one challenging the order dated April 17, 2009 passed by the 1st Appellate Court. As recorded earlier, while dealing with the prayer for ad interim injunction, I find that by the order dated March 17, 2009 the learned Trial Judge directed both the parties to maintain status quo in respect of the suit property as it stood on that day till April 16, 2009. Thus, I find that the said interim order was for a limited period and its life was only up to April 16, 2009. It is surprising to note that against such an order, the Misc. Thus, I find that the said interim order was for a limited period and its life was only up to April 16, 2009. It is surprising to note that against such an order, the Misc. appeal in question was disposed of on April 17, 2009 when the life of the interim order had already expired. So, the said Misc. appeal should have been dismissed being infructuous without going into details as to the merits of the interim order of injunction. Therefore, at this revisional stage, I am of the view that since the life of the interim order of injunction had already expired before the date of passing impugned judgment and order by the 1st Appellate Court, nothing should be discussed as to the merits of the same. Accordingly, I am of the view that this revisional application is not maintainable and there is no need of further consideration as to the merits of the impugned judgment and order as well as the order passed by the learned Trial Judge. Since, the application for temporary injunction is still pending, appropriate directions should be given for early disposal of the same. The learned Trial Judge is, therefore, directed to dispose of the said application for temporary injunction within 6 weeks from the date of communication of this order. If no written objection is filed in the meantime and the same is required to be filed, it must be filed within 2 weeks from date and reply thereto, if any, one week thereafter before the learned Trial Judge. This application is disposed of to the extent indicated above. Considering the circumstances, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.