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2016 DIGILAW 829 (CAL)

Gour Chandra Nandy v. Hemanta Kumar Sett

2016-10-05

HARISH TANDON

body2016
JUDGMENT : Harish Tandon, J. 1. An application under Article 227 of the Constitution of India is filed by the defendants/petitioners challenging an order dated 23rd September 2016 passed by the learned Civil Judge (Junior Division), 4th Court, Howrah in Title Suit No. 1258 of 2016 granting an ex parte ad interim order of injunction restraining the defendants/petitioners from making any constructions over the C schedule property or encroaching A schedule common passage or dismantling the drain till 15th November 2016. Mr. Kishore Datta, learned senior advocate appearing on behalf of the petitioners, submits that though the remedy lies against the said order under Order 43 Rule 1(r) of the Code of Civil Procedure but because of the ensuing Puja Vacation the Civil Court does not accept the filing of a new matter and, therefore, the petitioners cannot be rendered without any remedy. 2. There is no difficulty in entertaining the application under Article 227 of the Constitution of India by the High Court if the remedy provided under the statute is not available. In exceptional and extraordinary cases where the order has serious civil consequences requiring immediate protection, the Court can entertain the application under Article 227 of the Constitution of India. 3. In the instant case, an ex parte ad interim order of injunction is passed on 23rd September 2016 and the Trial Court is closed for long vacation on and from 30th September 2016. 4. After perusing the impugned order, this Court finds that the Trial Court restrained the petitioners not only from making any constructions over the C schedule property but also encroaching the common passage or to dismantle the drain being the subject matter of the suit. 5. In the plaint, the plaintiff/opposite party has not denied the title of the petitioners in respect of C schedule property. The subject matter relates to a common passage, which is described in schedule A appended to the plaint and according to the plaintiff/opposite party the petitioners are raising constructions by encroaching thereupon. 6. The Trial Court without looking into the matter has passed the blanket order not only restraining the petitioners from encroaching the common passage but making constructions over their own property. There is no claim of the plaintiff/opposite party in respect of a property described in schedule C to the plaint. 7. Mr. 6. The Trial Court without looking into the matter has passed the blanket order not only restraining the petitioners from encroaching the common passage but making constructions over their own property. There is no claim of the plaintiff/opposite party in respect of a property described in schedule C to the plaint. 7. Mr. Datta hands over the photographs showing the present condition of the constructions in the C schedule property. 8. This Court finds that the construction is virtually complete and what is required is the finishing work. 9. Mr. Datta submits that his clients have not encroached upon the A schedule property being the alleged common passage and constructions has been done on their own land in accordance with the plan sanctioned by the competent authority. 10. Mr. Datta is right in his submission that the Trial Court cannot restrain the petitioners from completing the construction work over their own property when the plaintiff/opposite party has not claimed any adverse title to it in the plaint. 11. This Court, therefore, modifies the impugned order to the extent that the petitioners shall be restrained from encroaching upon A schedule property till 15th November 2016 when the matter is made returnable before the Trial Court. 12. The revisional application is, thus, disposed of. However, there shall be no order as to costs.