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2013 DIGILAW 700 (CAL)

Sukhmani Developers Pvt. Ltd. v. Ravinder Singh

2013-09-19

PRASENJIT MANDAL

body2013
JUDGMENT Prasenjit Mandal, J. This application is at the instance of the plaintiffs/appellants and is directed against the judgment and order dated July 26, 2013 passed by the learned Additional District Judge, 13th Court, Alipore in Misc. Appeal No.374 of 2012 thereby setting aside the Order No.2 dated August 7, 2012 passed by the learned Civil Judge-in-Charge (Junior Division), 5th Court, Alipore in Title Suit Ni.215 of 2012. The plaintiffs/appellants/petitioners herein instituted the aforesaid suit against the defendant/respondent/opposite party herein before the learned Trial Judge praying for a decree of declaration that the plaintiffs are the sole and absolute owners in possession which means and include unfettered leasehold rights as the case is, in respect of the properties described in the schedules ‘A’ to ‘C’ to the plaint and that the defendant herein and none of his family members have got any iota of right, title, interest and possession in respect of any part thereof and the decree for permanent injunction restraining the defendant or any of his men and agents from exerting and/or attempting to exert any kind of and/or right, title, interest and possession in respect of the said premises and other reliefs. At the time of filing the suit, the plaintiffs prayed for temporary injunction along with a prayer for ad interim injunction. The learned Trial Judge refused to grant an ad interim order of injunction and directed the defendant/respondent/opposite party herein to file a show cause. Being aggrieved, the plaintiffs preferred an appeal being Misc. Appeal No.374 of 2012 and while disposing of the said misc. appeal, the learned 1st Appellate Court directed both the parties to maintain status quo in respect of the suit properties till the disposal of the application for temporary injunction. Being aggrieved by such order, this application has been preferred. Now, the question is whether the impugned order should be sustained. Upon hearing the learned Counsel for the parties and on going through the materials on record, I find that the plaintiffs/appellants/petitioners herein are the private limited companies and they have filed this suit for reliefs, already stated in respect of the suit properties as described in the schedule to the plaint. Upon hearing the learned Counsel for the parties and on going through the materials on record, I find that the plaintiffs/appellants/petitioners herein are the private limited companies and they have filed this suit for reliefs, already stated in respect of the suit properties as described in the schedule to the plaint. It is pertinent to mention that defendant/respondent/opposite party herein instituted a suit being Title Suit No.13482 of 2011 for partition and accounts against his mother, brother and two sisters incorporating the suit properties of the instant suit mentioning his brother, i.e., the director of the plaintiffs of this suit as co-owner of the suit properties and that suit is still pending. In the instant suit as per materials on record, the director of the plaintiffs is running the development business in the name of the plaintiff companies. The plaintiffs of the instant suit prayed for temporary injunction restraining the defendant or any of his men and agents from exerting and/or attempting to exert any kind of and/or right, title, interest and possession of any part of the properties of the plaintiffs as stated in schedules ‘A’ to ‘C’ of the plaint in any manner whatsoever either by way of transfer, alienate, encumbrances, creation of a third party interest in respect of any property. As stated earlier, the plaintiffs are running the development business, but, by the impugned order, the First Appellate Court has directed both the parties to maintain status quo in respect of the suit properties till the disposal of the injunction petition. This was not at all a prayer of the plaintiffs, in fact, since the subject matter of the appeal has originated from the refusal of ad interim order of injunction, there was no occasion to consider the defence stand if any, on behalf of the defendant/respondent and as such, there is no scope to hold that the defendant has raised any stand that the plaintiffs are about the alienate/dispose of the suit property. So, in my view, the impugned order directing both the parties to maintain status quo in respect of the suit properties till the disposal of the injunction petition cannot be sustained. Mr. So, in my view, the impugned order directing both the parties to maintain status quo in respect of the suit properties till the disposal of the injunction petition cannot be sustained. Mr. Shaktinath Mukherjee, learned Senior Advocate appearing for the petitioners has contended that the findings of the learned First Appellate Court in respect of the suit properties cannot be supported and the two suits referred to above cannot be stated to be identical and moreover, the plaintiffs of the instant suit are not the parties of the other suit for partition and accounts and so, the findings of the learned First Appellate Court cannot be sustained. On the other hand, Mr. S.P. Roychowdhury, learned Senior Advocate appearing for the opposite party has drawn my attention to the findings of the learned First Appellate Court and thus, he has submitted that since a suit for partition and accounts has been filed wherein all types of claim could be entertained, there was no necessity of filing the instant suit by the defendant of the suit for partition and accounts. He has also drawn my attention to the observations of the learned First Appellate Court that all the questions raised in the instant suit would be decided in the suit for partition and that there was no necessity for the present plaintiffs to institute the present suit separately and thus, the instant suit is hit by Section 10 of the C.P.C. With due respect to Mr. Roychowdhury, I am of the view that these grounds were the observations of the learned First Appellate Court in the misc. appeal at the initial stage to consider whether ad interim injunction should be granted or not. In the misc. appeal, the learned First Appellate Court has observed that prima facie, the plaintiffs are in possession of the suit property and that there is a dispute between the parties regarding the same. Anyway, since a suit for partition is pending over the selfsame property before a higher forum, the learned Trial Judge did not find it apt to pass any order in the form of ad interim injunction. Anyway, since a suit for partition is pending over the selfsame property before a higher forum, the learned Trial Judge did not find it apt to pass any order in the form of ad interim injunction. The application for temporary injunction is yet to be disposed of by the learned Trial Judge and the appeal arising out of the refusal of the prayer for ad interim injunction having been disposed of, instead of making detailed observations on the basis of the materials on record, I am of the view that if the impugned order sustains, the business of the plaintiffs may be hampered. Since there is no contrary materials at the time of consideration of the ad interim order of injunction, the plaintiffs shall be debarred by the impugned order from exercising their rights over the suit properties as they have prayed for injunction against the defendant. Therefore, without any observations, save and except what has been recorded earlier, the impugned order relating to direction upon the parties to maintain status quo in respect of the suit properties should be vacated to enable the learned Trial Judge to take the entire materials on record into consideration for disposal of the injunction petition upon giving opportunities to the parties to place their respective materials in support of their contentions. Accordingly, I am of the view that so far of the order of status quo as passed by the learned 1st Appellate Court is concerned, the same should be set aside and the learned Trial Judge should be directed to dispose of the application for temporary injunction by the end of December 2013 without fail. If no written objection is filed by the defendant/respondent/opposite party herein, the learned Trial Judge shall give an opportunity to the defendant/respondent to file a written objection within the time fixed by him and a rejoinder if any, by the plaintiff within the time as fixed by him. The application is disposed of in the manner indicated above. The learned Trial Judge shall not be swayed away by the findings of the learned 1st Appellate Court and of this Court and he shall dispose of the application for temporary injunction on the basis of the material placed before him by the parties. Considering the circumstances, there will be no order as to costs. The learned Trial Judge shall not be swayed away by the findings of the learned 1st Appellate Court and of this Court and he shall dispose of the application for temporary injunction on the basis of the material placed before him by the parties. 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.