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2016 DIGILAW 28 (CAL)

Athar Alam Ansari v. Walayet Ali Roomi Ansari

2016-01-11

JYOTIRMAY BHATTACHARYA, SHIB SADHAN SADHU

body2016
JUDGMENT : Jyotirmay Bhattacharya, J. 1. This first miscellaneous appeal which is directed against an order being No. 2 dated 6th July, 2015 passed by the learned Judge-In-Charge, 7th Bench, City Civil Court at Calcutta in Title Suit No. 890 of 2015 was admitted for hearing under the provision of Order 41, Rule 11 of the Code of Civil Procedure on 3rd August, 2015. 2. After the appeal was admitted for hearing, on an application for injunction filed by the appellant, the appellant was directed to serve copy of the application for injunction upon the respondents. 3. Pursuant to such direction, service was effected upon the respondents. The respondents have appeared before this Court through their learned advocate at the time when the said application for injunction is taken up for hearing. 4. We are requested by the learned advocates of both the parties to dispose of the appeal itself by treating the same as on the day’s list. 5. We are informed by the learned advocates appearing for the parties that all necessary papers which are required for disposal of this appeal, are annexed to the injunction application and as such on the prayer of the learned advocates of the parties, we have decided to hear this appeal by dispensing with the requirement of filing paper books in this appeal. 6. Let us now consider the merit of the instant appeal in the facts of the instant case. 7. Plaintiff’s prayer for grant of ad interim order of injunction was rejected by the learned Trial Judge. The instant appeal is directed against the said order passed by the learned Trial Judge. 8. Let us now consider as to how far the learned Trial Judge was justified in rejecting the plaintiff’s prayer for ad interim injunction in the facts of the instant case. 9. Parties are closely related to each other. Plaintiff is the father of the defendant no. 1. Defendant no. 2 is the wife of the defendant no. 1. Plaintiff filed the said suit for eviction against the defendants from the “B” schedule property which is a part of “A” schedule property. Plaintiff claims that he is a tenant in respect of “A” schedule property. Admittedly the defendants are in possession of the “B” schedule property consists of one room measuring about approximately 200 sq. ft. 1. Plaintiff filed the said suit for eviction against the defendants from the “B” schedule property which is a part of “A” schedule property. Plaintiff claims that he is a tenant in respect of “A” schedule property. Admittedly the defendants are in possession of the “B” schedule property consists of one room measuring about approximately 200 sq. ft. situated at the south-east side of premises No. 29/A, Rabindra Sarani, P.S. Hare Street, Kolkata. The tenancy of the plaintiff consists of the second floor measuring about 2000 sq. ft. situated at the second floor of the premises No. 29/A, Rabindra Sarani, P.S. Hare Street, Kolkata. The said flat consists of four bed rooms and one hall, one kitchen, two bath rooms and a big varandah. 10. Since the plaintiff has filed a suit for eviction of the defendants from the “B” schedule property, it goes without saying that the defendants are in possession of the “B” schedule property. Since the defendants are in possession of the “B” schedule property, the plaintiff cannot forcefully evict them without due process of law. 11. Accordingly, we dispose of this appeal by restraining the defendants from disturbing the peaceful possession of the plaintiff in respect of the “A” schedule property excluding the “B” schedule property meaning thereby that the defendants will have no right to possess and/or interfere with the possession and/or create any disturbance in the peaceful possession of the plaintiff in respect of any portion of the “A” schedule property excluding the portion described in the “B” schedule property till the disposal of the plaintiff’s application for temporary injunction. 12. Leave is granted to the defendants to file affidavit-in-opposition to the plaintiff’s application for temporary injunction within two weeks from date; reply, if any, be filed by the plaintiff within a week thereafter. 13. The learned Trial Judge is requested to dispose of the plaintiff’s application for temporary injunction as early as possible, but preferably within eight weeks from the date of exchange of affidavits between the parties. 14. It is made clear that the time limit which is fixed above for filing of affidavits by the parties is peremptorily fixed by this Court. 15. It is also made clear that while disposing of this appeal, we have not considered the merit of the plaintiff’s application for temporary injunction. 14. It is made clear that the time limit which is fixed above for filing of affidavits by the parties is peremptorily fixed by this Court. 15. It is also made clear that while disposing of this appeal, we have not considered the merit of the plaintiff’s application for temporary injunction. As such, the learned Trial Judge will be absolutely free to decide the plaintiff’s application for temporary injunction in accordance with law and as per his own wisdom without being influenced by any of the observations made herein above. 16. The appeal is thus disposed of. Re: CAN No. 6864 of 2015 (Injunction) 17. In view of disposal of the appeal in the manner as aforesaid, no further order need be passed on the application for injunction. The said application being CAN No. 6864 of 2015 is thus deemed to be disposed of. 18. Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.