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2017 DIGILAW 666 (CAL)

Arun Mukherjee v. Madhradha Kishna Chandra Dev Jew

2017-08-07

ASHIS KUMAR CHAKRABORTY

body2017
JUDGMENT : 1. This revisional application, at the instance of the defendant in the suit is directed against the order dated April 17, 2012 passed by the learned Additional District Judge, 4th Court, Nadia in Misc. Appeal No. 26 of 2009. By the impugned order, the learned appellate Court below set aside the order dated March 30, 2009 passed by the learned trial Judge in Title Suit No. 139 of 2008 and allowed the appeal of the opposite party by passing an ad interim temporary injunction order restraining the defendant/petitioner from creating any disturbance in the puja-archana of the present pujari, and from entering into the temple at any time for creating any disturbance in the peaceful puja archana by the present pujari and from obstructing the present pujari from coming into the temple and/or assaulting or abusing him till the disposal of the suit. 2. Assailing the impugned order passed by the learned appellate Court below Mr. Anit Rakshit, learned advocate appearing for the defendant/petitioner submitted that the learned appellate Court below fell into an error of law in passing the aforementioned ad interim order of injunction which tantamounts to the passing of the main relief claimed in the suit. He further submitted that while passing the impugned order the learned appellate Court below made a wrong reference to the suit property as well as the Arpanname. 3. From the records it appears that on September 30, 2013 when this revisional application was moved a learned single Judge of this Court passed an interim order directing the parties to maintain status quo in respect of their status for a period of ten weeks after the reopening of the Court, after puja vacation. The said interim order expired long time back and it is submitted by Mr. Rakshit that the trial of the suit has already commenced before the learned trial Judge. 4. Although, from the affidavit-of-service filed on behalf of the petitioner it appears that a copy of this application has been served upon the shebait of the appellant deity but none appears to oppose this application. Let, the said affidavit-of-service filed on behalf of the petitioner be kept on record. 5. I have considered the materials on record and the submission advanced by the learned counsel appearing for the petitioner. Let, the said affidavit-of-service filed on behalf of the petitioner be kept on record. 5. I have considered the materials on record and the submission advanced by the learned counsel appearing for the petitioner. As mentioned earlier, the interim order passed by a learned single Judge of this Court on September 30, 2013 expired long time back and the trial of the suit has already commenced. The impugned order was passed by the learned appellate Court in an appeal arising out of an application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908. Therefore, when the trial of the suit has already commenced the learned trial Judge is required to decide the suit after considering the pleadings of the respective parties, as well as the evidence to be adduced by them through their respective witnesses, both oral as well as documentary. Once the trial of the suit has commenced the learned trial Judge is required to decide the suit, without being influenced by any finding or observation made by the learned trial Court below in an interlocutory application and after ascertaining the validity of the Arpannama disclosed by the plaintiff/opposite party and the identity of the suit property. 6. For the reasons as aforesaid, when the trial of the suit has already commenced, I do not find any reason to interfere with the impugned order passed by the learned Court below. 7. The learned trial Judge is requested to make an endeavour for expeditious disposal of the suit, preferably within a period of four months from the date of communication of this order without granting any unnecessary adjournment to either of the parties. 8. With the above direction, the revisional application, being CO 3057 of 2012 stands disposed of. However, there shall be no order as to costs. 9. It is submitted by Mr. Rakshit that the petitioner has also file an application, being CAN 10605 of 2014. However, the said application is not available from the records of this Court. Let, a copy of the said application duly certified by Mr. Rakshit as the correct copy of the said application be kept on record. 10. In view of the above order disposing of the main revisional application, CAN 10605 of 2014 which is treated as on the day’s list is disposed of as infructuous.