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2013 DIGILAW 474 (CAL)

Angur Bala Ghosh v. Gopal Jew Thakur

2013-07-22

PRASENJIT MANDAL

body2013
Judgment :- Prasenjit Mandal, J. Challenge is to the orders dated October 12, 2012 & December 11, 2012 passed by the learned Additional District Judge, Sealdah in Misc. Appeal No.63 of 2012 thereby granting ad interim injunction and rejecting the prayer for rejection of the said Misc. appeal in question arising out of Title Suit No.189 of 2012. The plaintiffs/opposite parties herein instituted the said title suit before the learned Civil Judge (Junior Division), 1st Court, Sealdah against the petitioners herein and other proforma opposite parties praying for declaration, cancellation of deed, building plan, etc., permanent injunction and other consequential reliefs. The plaintiff prayed for temporary injunction along with a prayer for ad interim injunction before the learned Trial Judge and the prayer for ad interim injunction was refused. Being aggrieved, the plaintiff filed a Misc. appeal being Misc. Appeal No.63 of 2012 which was admitted by the 1st Appellate Court. At the time of the filing of the said Misc. appeal, the prayer for injunction as well as ad interim injunction were sought for. The learned 1st Appellate Court allowed the prayer for ad interim injunction in the application under Order 39 Rule 1 & 2 of the C.P.C, upon hearing both the sides restraining the respondents from raising any construction over the suit property till December 11, 2012 by the first order dated October 12, 2012. The respondents were also directed to file a written objection on the date fixed after service of copy. By the second order dated December 11, 2012 the prayer for extension of the interim order was granted up to March 26, 2013. The respondents have contended that the suit property is a thika tenanted property and so, the Misc. appeal should be dismissed. Instead of dismissing the appeal, the learned Trial Judge has fixed the next date i.e. March 26, 2013 for hearing of the Misc. appeal and the L.C.R. was called for. Being aggrieved, this application has been preferred against both the orders. Having heard the learned Counsel for the parties and on going through the materials on record, I find that the defendants/petitioners herein have contended that the Misc. appeal is not maintainable in view of the fact that the suit property is a thika property and appropriate challan has been shown and so, the order of injunction as well as hearing of the Misc. appeal is not maintainable in view of the fact that the suit property is a thika property and appropriate challan has been shown and so, the order of injunction as well as hearing of the Misc. case are not proper and so the order of injunction should be set aside and the Misc. appeal should be dismissed. The learned 1st Appellate Court has rejected both the prayers. I am of the view that the learned 1st Appellate Court has rightly addressed the issue. Save and except, one challan dated March 22, 2011, there is no other paper in support of the claim that the defendants/petitioners are the thika tenants of the suit property. The 1st Appellate Court has also held that in view of the nature of the suit, the property in suit appears to be a trust property and so the fraction of the same cannot be treated as thika property at all. The 1st Appellate Court, in my view, has rightly entertained the application for temporary injunction when the prayer for injunction was refused by the learned Trial Judge. Above all, it appears that the order of ad interim injunction, by the first order, was granted up to December 11, 2012 and by the second order, the interim order was extended up to March 26, 2013. So, after that period, the said order of ad interim injunction is no longer valid at all and as such this revisional application against the order of ad interim injunction has become infructuous and not maintainable. Mr. Kamalesh Bhattacharjee, learned Advocate appearing for the petitioner has referred to the decision of Kishorsinh Ratansinh Jadeja v. Maruti Corporation & ors. reported in (2009) 11 Supreme Court Cases 229 and, thus, he submitted that an application for temporary injunction is to be dealt with keeping in mind the basic principle for grant of injunction and a cryptic order in haste on the very next day of filing of injunction application by not hearing impleaded parties nor noticing the affected third parties whose rights got affected is not permissible. This decision, in my view, is applicable in the instant case. So far as the maintainability of the appeal or the suit is concerned, that will be the subject matter of consideration of the appeal and the suit respectively and the learned 1st Appellate Court has called for a written objection from the defendants/respondents/ petitioners herein. This decision, in my view, is applicable in the instant case. So far as the maintainability of the appeal or the suit is concerned, that will be the subject matter of consideration of the appeal and the suit respectively and the learned 1st Appellate Court has called for a written objection from the defendants/respondents/ petitioners herein. The question of maintainability will be dealt with by the appropriate courts in due course. Therefore, I am of the view that there is no scope of interference of the impugned order. Accordingly, this revisional application is dismissed. 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.