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2015 DIGILAW 972 (CAL)

Nabakumar Mondal v. Sisir Kumar Mondal

2015-12-18

SAHIDULLAH MUNSHI

body2015
JUDGMENT : Sahidullah Munshi, J. This revisional application is directed against an order dated 2nd September, 2014, passed by the learned Civil Judge (Senior Division), Arambagh, Hooghly, in Title Suit No. 99 of 2012. By the order impugned the learned Judge has rejected the petitioners' application under Section 151 of the Code of Civil Procedure praying for permission of the Court to complete an unfinished construction. 2. This revisional application is at the instance of the defendants in a suit for partition. The petitioner contends that before the suit was filed the plaintiff and the defendant Nos.1 to 5 (petitioners herein) obtained a sanctioned plan jointly in respect of portions of one of the suit plots, namely, plot No.748 and started construction there at. After the suit was filed the plaintiff also filed an application for temporary injunction which was allowed by the learned Court below by an order dated 10th January, 2013 whereby on consent of both the plaintiff and defendant Nos.1 to 5 the injunction application was allowed and the parties were directed to maintain status quo in respect of the nature and character of the suit property as on date till disposal of the suit. By virtue of such order passed on 10th January, 2013 the defendants/petitioners are unable to raise further construction on their portion of plot No.748 which is one of the suit plots. As a result of such restraint the defendants/petitioners took out an application under Section 151 of the Code of Civil Procedure praying for an order to raise further construction on the portion of the suit plot so that he could complete his construction. As a result of such restraint the defendants/petitioners took out an application under Section 151 of the Code of Civil Procedure praying for an order to raise further construction on the portion of the suit plot so that he could complete his construction. The said application under Section 151 of the Code of Civil Procedure has been rejected by the learned Court below by the order impugned, holding, inter alia, that although, an order of injunction can be varied and/or discharged under the provisions of Order 39, Rule 4 of the Code of Civil Procedure in the event of undue hardship to any of the parties but the facts and circumstances as transpired from the materials on record does not reveal any such hardship as contemplated under Order 39, Rule 4 of the Code and, accordingly, the grounds of alleged hardship as contemplated by the defendants in their petition under Section 151 of the Code of Civil Procedure cannot be considered to be sufficient ground for varying or discharging the order of injunction. 3. Learned advocate Mr. Rameshwar Bhattacharya appearing for the petitioners submitted that learned Court below has very illegally passed the impugned order and he ought to have allowed the petitioners to raise further construction in the portion of the suit property because the order of injunction can also be modified under the provisions of Section 151 of the Code of Civil Procedure. In support of his submission Mr. Bhattacharya has relied on a judgment in the case of Shrimati Satu Bala Dassi & Ors. v. Chaturanan Saha & Ors. reported in (2014)3 WBLR (CAL) 318. The case is distinguishable on fact and is not applicable to the present case. 4. In the referred case the plaintiff filed a partition suit and application for temporary injunction was filed praying for an order restraining the defendants from making any construction in any portion of the suit property or from changing the nature and character of the suit property. But the learned trial Judge rejected the said injunction application on contest with liberty to the defendants to raise construction on her purchased portion subject to the result of the suit and clarified that the defendant No.2 would not be entitled to claim any equity over such construction in the suit. But the learned trial Judge rejected the said injunction application on contest with liberty to the defendants to raise construction on her purchased portion subject to the result of the suit and clarified that the defendant No.2 would not be entitled to claim any equity over such construction in the suit. In an appeal from the said order of rejection of injunction application this Hon'ble Court did not interfere with the order of injunction because it was the discretion of the Court by which injunction was refused. The Division Bench, however, held that a co-owner is not entitled to an order of injunction restraining any other co-sharer from exercising his right in the common property. In the present case, however, injunction had already been granted and significantly, injunction application was allowed on consent of the parties. 5. Therefore, even if the defendants/petitioners are restrained by the said order of injunction they are not in a position to challenge the same and in my opinion, the said order cannot be modified also by virtue of the fact that the defendants are estopped from taking out any application for modification of the said order having regard to the fact that they have already given consent before passing the order of injunction. Mr. Bhattacharya has relied upon a decision in the case of Narendra Kante v. Anuradha Kante & Ors. reported in (2010)2 WBLR (SC) 87. This judgment relates to the grant of injunction in a partition suit and this case is also distinguishable on fact. 6. In the reported case the appellant before the Hon'ble Supreme Court prayed for a decree of permanent injunction against the defendants not to deal with the property without a partition having been effected. The appellant also prayed for a grant of temporary injunction which was rejected by the trial Court holding that partition had been effected by way of family settlement which had been reduced into writing. The High Court on a miscellaneous appeal allowed construction on the suit land but restrained alienation or transfer of the property. The question for decision was whether the appellant was entitled to the temporary injunction as prayed for. The Apex Court did not interfere with the order passed by the High Court. Mr. Bhattacharya also relies on a decision in the case of Satish Chandra Som & Ors. v. Tarak Nath Mahapatra & Ors. The question for decision was whether the appellant was entitled to the temporary injunction as prayed for. The Apex Court did not interfere with the order passed by the High Court. Mr. Bhattacharya also relies on a decision in the case of Satish Chandra Som & Ors. v. Tarak Nath Mahapatra & Ors. reported in 2004(1) CLJ (CAL) 430. In this case plaintiff filed a suit for partition claiming some interest and defendants were making construction on their purchased portion. The plaintiff prayed for temporary injunction to restrain them from making construction during the pendency of the suit for partition. Trial Court granted temporary injunction and on appeal this Hon'ble Court set aside the order of temporary injunction. This case also does not help Mr. Bhattacharya inasmuch as Court cannot grant any permission for raising construction unless the order of injunction passed earlier is modified and, admittedly, no application under Order 39, Rule 4 has been filed by the defendants. Mr. Gopal Chandra Ghosh learned advocate appearing for the plaintiff/opposite party submits that the order impugned does not suffer any illegality and does not warrant interference of this Court inasmuch as the plaintiff had no right to file the application under Section 151 of the Code of Civil Procedure inasmuch as there is a specified provision in the Court, namely, Order 39, Rule 4 which prescribes for variation and/or discharge and/or setting aside of an order of injunction therefore, according to Mr. Ghosh, the order which has been passed by the learned Court below should be considered to have been passed under Order 39, Rule 4 of the Code of Civil Procedure and if that be so, no revision therefrom is maintainable. It is only an appeal which would lie against the order impugned. 7. Heard the parties at length. Considered the materials on record, impugned order as also the application under Section 151 of the Code of Civil Procedure filed by the defendants/petitioners. In the application under Section 151 of the Code of Civil Procedure the defendants have prayed for permission from the Court to allow them to raise further construction on the suit plot. Considered the materials on record, impugned order as also the application under Section 151 of the Code of Civil Procedure filed by the defendants/petitioners. In the application under Section 151 of the Code of Civil Procedure the defendants have prayed for permission from the Court to allow them to raise further construction on the suit plot. It is not understood as to why the defendants/petitioners have filed such an application for taking permission from the Court to raise construction on the suit property while, admittedly, an order of injunction had already been passed by the learned Court below and that too, by consent of the defendants. An order of injunction may be discharged, varied and/or set aside under the provisions of Order 39, Rule 4 of the Code of Civil Procedure but according to the Second Proviso to Rule 4 an order of injunction, if passed after giving the party an opportunity of being heard, the order shall not be discharged, varied or set aside on the application of that party except where such discharge, variation or setting aside has been necessitated by a change in the circumstances or unless the Court is satisfied that the order has caused undue hardship to that party. In the present case, parties might have suffered undue hardship but there is no change of circumstances so that the order can be modified. No application has been filed for variation and/or modification of the order of injunction probably for the reason that consent order cannot be modified and/or varied unless the parties agree. That apart, the defendants/petitioners are estopped from taking out an application for modification of the order of injunction having regard to their consent earlier given. It is correct that the petitioners have filed the application praying for permission to raise construction but it is not possible so long as the order of injunction is subsisting. 8. In my view, the learned Court below has committed neither any error of jurisdiction nor any material irregularity which could warrant interference. The order impugned is affirmed. The revisional application is dismissed. There will be no order as to costs. Urgent Photostat certified copy of this judgment, if applied for, be delivered to the learned advocates for the respective parties upon compliance of all usual formalities.