Research › Search › Judgment

Calcutta High Court · body

2013 DIGILAW 751 (CAL)

Alcove Construction Pvt. Ltd. v. Rabiya Bibi

2013-09-30

PRASENJIT MANDAL

body2013
Judgment : Prasenjit Mandal, J. This application is at the instance of the defendant no.1 and is directed against the order dated July 30, 2013 passed by the learned Additional District Judge, Fast Track Court No.2, Barasat in Misc. Appeal No.26 of 2012 thereby affirming the order of injunction in the nature of status quo dated January 20, 2012 passed by the learned Civil Judge (Senior Division), 2nd Court, Barasat in Title Suit No.111 of 2010. The plaintiffs/opposite party nos.1, 2 & 3 instituted the aforesaid suit for declaration of title, permanent injunction restraining the defendants from disturbing the peaceful possession of the plaintiffs in the suit property and other reliefs. They moved an application under Order 39 Rules 1 & 2 of the C.P.C. and the learned Trial Judge granted an ad interim order of injunction in the form of status quo regarding the nature, character and possession of the suit property by an order dated July 1, 2010 till July 30, 2010 and the said order was extended from time to time. The defendant no.1 entered an appearance on July 26, 2010 and filed a written objection against the application for temporary injunction along with other applications and also a written statement subsequently. Thereafter, by the order dated January 20, 2012, the learned Trial Judge made the interim order of status quo absolute. Being aggrieved by the said order, the defendant no.1 preferred an appeal being Misc. Appeal No.26 of 2012 and the said appeal dismissed on contests thereby affirming the order dated January 20, 2012 passed by the learned Trial Judge. Being aggrieved, 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 so far as the injunction matter is concerned, the orders passed by the learned Trial Judge cannot be sustained and while disposing of the said misc. appeal, the learned First Appellate Court also supported the findings of the learned Trial Judge in toto without taking into consideration whether at the time of dealing with the application for temporary injunction, the natural justice has been violated or not. appeal, the learned First Appellate Court also supported the findings of the learned Trial Judge in toto without taking into consideration whether at the time of dealing with the application for temporary injunction, the natural justice has been violated or not. The plaint case is that the suit property originally belonged to Rustom Ostagor and after his demise, the property in suit devolved upon his two sons and one daughter according to the plaint case. Then several devolutions took place. Thus, the plaintiffs acquired right, title and interest over the suit property. On April 12, 2010 and May 16, 2010, a huge number of persons assembled at the suit locale and tried to encroach the suit property and the plaintiffs resisted them. Under such circumstances, the plaintiffs have prayed for declaration of title and permanent injunction. On the other hand, the defendant no.1 has contended that the M/s. Hindustan Iron & Steel Factory became a direct tenant under the State by retaining the suit property under Section 6(5) read with Section 6(1)(g) of the West Bengal Estates Acquisition Act, 1953 and as such, the said M/s. Hindustan Iron & Steel Factory became the owner of the suit property and the R.S. record of rights had been correctly prepared on April 28, 1965 in the name of M/s. Hindustan Iron & Steel Factory. When the said company became sick and went on B.I.F.R. and steps were taken for winding up the company and accordingly, under a Court-sale, the defendant no.1 became the owner of the suit property by purchase. So, the plaintiffs have no right, title, interest and possession over the suit property. The defendant no.1 has also contended that they raised 33 big towers for residential purpose and the flats were distributed to the purchasers and they are in possession. So, the prayer for injunction petition should have been rejected. Having considered the above contentions of the respective parties, it is clear that there is, prima facie, a triable issue to be decided at the time of trial. Mr. Shaktinath Mukherjee, learned Senior Advocate appearing for the petitioner while arguing, has contended that the petitioner could not take steps for one day only, i.e., on November 16, 2011 in the suit. Mr. Shaktinath Mukherjee, learned Senior Advocate appearing for the petitioner while arguing, has contended that the petitioner could not take steps for one day only, i.e., on November 16, 2011 in the suit. But, on the subsequent dates, he took steps by filing lawyer hazira and in spite of filing the written objection against the application for temporary injunction prior to the date of November 16, 2011, the learned Trial Judge has made the ad interim order of injunction absolute without any consideration of the written objection filed by the defendant no.1. He has also contended that his client filed an application for vacating the order of ex parte hearing of the matter and a show cause and those were considered and accepted subject to payment of costs of Rs.1,000/-. Such costs of Rs.1,000/- were paid to the plaintiffs who had accepted the same. So, the learned Trial Judge should have considered this aspect and the impugned order should not have been passed by the learned Trial Judge. Similarly, he has contended that the learned First Appellate Court has also failed to exercise the jurisdiction vested in him by not considering the situation and the fact that the written objection filed by his client has not been considered by the learned Trial Judge. On the other hand, Mr. S.P. Roychowdhury, learned Senior Advocate appearing for the opposite parties, has contended that so far as dealing with the matter of injunction is concerned, there cannot be any straight jacket formula and the question of granting injunction depends upon the circumstances according to the case and appropriate orders could be passed accordingly. Since the defendant no.1 did not take any step on November 16, 2011, the learned Trial Judge had no other option but to fix the matter for ex parte hearing. With due respect to Mr. Roychowdhury, I am of the view that the Court has inherent power to take a liberal view particularly when the defendant no.1 could not take steps on one occasion only and he took steps on subsequent occasion on the date of making the ad interim order of injunction absolute. The defendant no.1 filed hazira through lawyer and so, in my view, the impugned order passed by the learned Trial Judge cannot be supported. The defendant no.1 filed hazira through lawyer and so, in my view, the impugned order passed by the learned Trial Judge cannot be supported. From the materials on record, I find that on July 1, 2010, an ad interim order of injunction in the nature of status quo was passed till July 30, 2010 and the said order was extended from time to time and the defendant no.1 was directed to file a show cause. The defendant no.1 filed a written objection to the application for temporary injunction accordingly. What is surprising is that by the order dated November 16, 2011, the learned Trial Judge has recorded that the defendant no.1 did not take any step and so, the suit should be heard ex parte against the defendant no.1. Accordingly, he has extended the interim order of injunction till December 15, 2011 and he has directed the plaintiffs to take fresh steps upon the defendant no.2 for service. From the Order No.18 dated December 15, 2011, it reveals that the defendant no.1 filed hazira and the ad interim order of injunction was extended till January 20, 2012. Then on January 20, 2012, the learned Trial Judge recorded that it was evident that the matter was running ex parte against both the defendants and as such, the ad interim order of injunction was absolute till the disposal of the suit. Thus, what I find from the aforesaid orders is that the defendant no.1 could not take any step for one day only on November 16, 2011, but, on subsequent dates, such as, December 15, 2011 and January 20, 2012, the defendant no.1 took steps. In spite of that, the learned Trial Judge has recorded that the suit is running ex parte against both the defendants and so, the ad interim order of injunction as granted earlier had been made absolute. This is, in my view, the violation of natural justice in consideration of the fact that the defendant no.1 is contesting the suit all along and on one day, i.e., on November 16, 2011 he could not take steps. This does not mean that the defendant was not willing to proceed with the suit. In fact, before the order dated November 16, 2011, the defendant no.1 had already filed a written objection against the application for temporary injunction. This does not mean that the defendant was not willing to proceed with the suit. In fact, before the order dated November 16, 2011, the defendant no.1 had already filed a written objection against the application for temporary injunction. Under such circumstances, without consideration of the contention of the defendant no.1 as raised in the written objection, the order simply noting that since the matter was proceeding against both the defendants ex parte, the order of ad interim injunction had been made absolute, cannot be supported. This is the violation of natural justice. It is pertinent to mention that subsequently, the defendant no.1 filed a show cause and a petition for setting aside the order of ex parte hearing of the suit and such applications were allowed upon payment of costs of Rs.1,000/-and the said costs were paid to the plaintiffs vide order dated April 5, 2012 and April 19, 2012. It is also pertinent to mention that while disposing of the misc. appeal, the learned First Appellate Court has simply endorsed the order passed by the learned Trial Judge and there is no whisper as to the contention raised by the defendant no.1 in the written objection, although it was recorded by him that the defendant no.1 had filed the written objection against the application for temporary injunction. The defendant no.1 has filed the R.S. record of rights showing the retention of the land by the intermediary and the mutation certificate in the name of the defendant no.1 in respect of the suit property. This being the position, since the natural justice has been violated, I am of the opinion that the order passed by the learned Trial Judge making the ad interim order of injunction absolute and the impugned judgment and order passed by the First Appellate Court simply affirming the order of the learned Trial Judge in this respect cannot be sustained. There is a material irregularity in the impugned orders causing injustice to the defendant no.1. Accordingly, the impugned orders should be set aside directing the learned Trial Judge to dispose of the application under Order 39 Rules 1 & 2 of the C.P.C. filed by the plaintiffs afresh. The application succeeds and is, therefore, allowed. The Order No.19 dated January 20, 2012 passed by the learned Trial Judge in Title Suit No.111 of 2010 is hereby set aside. The application succeeds and is, therefore, allowed. The Order No.19 dated January 20, 2012 passed by the learned Trial Judge in Title Suit No.111 of 2010 is hereby set aside. Similarly, the judgment and order dated July 30, 2013 passed by the learned First Appellate Court in Misc. Appeal No.26 of 2012 is also set aside. The learned Trial Judge is directed to hear out the application for temporary injunction afresh and the exercise of such power must be made within 30 days from the date of reopening after the ensuing puja vacation. Considering the circumstances, there will be no order as to costs. As a precautionary measure, it is also recorded that while disposing of the application for temporary injunction, the learned Trial Judge shall not be swayed away by the observations recorded by the First Appellate Court and of this Court with regard to the injunction matter.