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2016 DIGILAW 818 (CAL)

Rajiv Singh v. Manju Lal Deb

2016-10-05

HARISH TANDON

body2016
JUDGMENT : 1. This revisional application is directed against the order no. 8 dated 29th September, 2016 passed by the learned Additional District & Sessions Judge, Fast Track Court No. 2, Barasat, 24-Parganas (North) in Miscellaneous Appeal No.132 of 2016, by which an application for mandatory injunction is rejected. 2. The plaintiff/petitioner filed a suit for declaration of tenancy right and permanent injunction restraining the defendants from interfering with the peaceful possession of the suit premises. In the said suit an application for temporary injunction was taken out which was contested by the opposite parties. 3. By an order dated 1st September, 2016 the Trial Court dismissed the application for temporary injunction, as the petitioner failed to make out a prima facie case and the balance of convenience and inconvenience as well as the irreparable loss and injury does not appear to be in favour of the petitioner. 4. The said order is carried to the Appellate Court in Miscellaneous Appeal No. 132 of 2016. An application for temporary injunction was filed for the similar and identical order claimed in the Trial Court, which at one point of time came before the Appellate Court on 7th September, 2016. 5. On the said date the Court recorded an undertaking of both the learned advocates representing the parties that the position as on that date should be maintained. The application for temporary injunction was posted for hearing on the next date. 6. In the meantime the petitioner filed an application for mandatory injunction alleging that despite such undertaking given to the Court, the position has been altered, as a third party was inducted and allowed to run its business from the suit premises. 7. Naturally the opposite parties denied and disputed the aforesaid allegations. According to them after the surrender was made by the erstwhile occupant, the same has been given in possession to a third party, who is running the business therefrom. 8. The Court of Appeal below proceeded to decide the said application, as if the entire matter is at large and this Court finds that some of the observations are of conclusive nature and, therefore, may put fetter at the time of deciding the application for temporary injunction or the Miscellaneous Appeal. 9. 8. The Court of Appeal below proceeded to decide the said application, as if the entire matter is at large and this Court finds that some of the observations are of conclusive nature and, therefore, may put fetter at the time of deciding the application for temporary injunction or the Miscellaneous Appeal. 9. The Court should not make any observations at the interlocutory stage, which has an impact at the time of deciding the main proceeding and, therefore, this Court feels that it would cause injustice to the parties to the proceeding, if such observations are allowed to stand. 10. An application for temporary injunction is still pending before the Court of Appeal below so the miscellaneous appeal and, therefore, this Court feels that permitting the observations to remain on record may affect the rights of the parties either way. 11. Without entering into the perversity, ingenuinity and illegality in the aforesaid observations, this Court set aside the impugned order on the consideration as indicated above. 12. This Court feels that the application for temporary injunction should be heard along with the pending applications by the Court of Appeal below. 13. This Court is informed that the next date is fixed on 21st November, 2016 for hearing of the Miscellaneous Appeal. It is also informed that the application for temporary injunction filed in the said Miscellaneous Appeal has not yet been disposed of. 14. Considering the peculiar facts involved in the instant case, this Court directs the Court of Appeal below to take up the applications, i.e. the application for temporary injunction and the application for mandatory injunction along with the Miscellaneous Appeal on the next date and shall see that the same is disposed of within three weeks therefrom in accordance with law. 15. For abundant precaution it is hereby made clear that the Court of Appeal below shall not be swayed by the fact that this Court set aside the impugned order, nor shall be swayed by any observations made hereinabove in deciding the matter on merit in accordance with law. 16. It goes without saying that all points available to the respective parties are kept open, if taken shall be decided by the Court of Appeal below on merit. 17. This revisional application is thus disposed of. 18. There will be no order as to costs.