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2019 DIGILAW 429 (CAL)

Soumitra Krishna Deb v. Adhir Kumar Basu

2019-04-02

ARINDAM MUKHERJEE, BISWANATH SOMADDER

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JUDGMENT : Biswanath Somadder, J. 1. In Re: CAN 2425 of 2019 Having heard the learned advocates for the parties and upon perusing the instant application and taking into consideration the facts and circumstances of the instant case, we allow the instant application by granting leave to those applicants who are parties in respect of a civil suit, being Title Suit no.67 of 2016, pending before the learned Civil Judge (Junior Division), 2nd Court at Sealdah for the purpose of preferring an appeal against the judgment and order dated 15th February, 2019, passed by a learned Single Judge in two writ petitions, being W. P. 1821 (W) of 2019 and W. P. 3084 (W) of 2019. So far as the other applicants are concerned, we refuse to grant leave to them for the purpose of preferring the appeal. The application is accordingly allowed. In Re: MAT 289 of 2019 with CAN 2426 of 2019 2. Let the affidavits filed in Court today by the parties be taken on record. 3. By consent of the parties, the appeal is treated as on day's list and taken up for consideration along with application for stay. 4. The instant appeal arises out of a judgment and order dated 15th February, 2019, passed by a learned Single Judge whereby two writ petitions, being W. P. 1821 (W) of 2019 [Dipendra Nath Basu vs. The State of West Bengal & Ors.] and W. P. 3084 (W) of 2019 [Sri Adhir Kumar Basu & Ors. vs. The State of West Bengal & Ors.) were disposed of with certain directions, which are as follows:- "Since the writ petitioner in W. P. 3084 (W) of 2019 seeks police assistance to erect boundary wall, in the facts of the present case, in my view, interest of justice would be sub-served by requesting the police to render adequate protection to such petitioners to erect the boundary wall in accordance with law. Needless to say that, the petitioners will comply with all formalities for obtaining police assistance and will pay the costs, charges and expenses with regard thereto. This order will not prejudice any of the parties in the pending suits in any manner whatsoever." 5. Needless to say that, the petitioners will comply with all formalities for obtaining police assistance and will pay the costs, charges and expenses with regard thereto. This order will not prejudice any of the parties in the pending suits in any manner whatsoever." 5. The specific contention of the appellants is that the order of the learned Single Judge prejudices the rights of the appellants in respect of a civil suit, being Title Suit No.67 of 2016, which is pending before the learned Civil Judge (Junior Division) 2nd Court at Sealdah, where the appellants are parties. 6. According to the learned advocate representing the respondent nos.1-4, in the civil suit-in-question, the appellants do not have any right in respect of the land where the boundary wall is sought to be erected and this fact can be borne out from a plain reading of the plaint itself. It is also submitted on behalf of the respondent nos.1-4 that in any event, the issue before the civil Court is not centring around any boundary dispute. 7. After considering the respective submissions made on behalf of the parties and upon taking into consideration the pleadings on record as well as the observations made by the learned Single Judge in the impugned judgment and order dated 15th February, 2019, we are of the view that the direction of the learned Single Judge upon the police authorities to render adequate protection to the respondent nos.1-4 to erect the boundary wall in accordance with law does not warrant any interference. More so, because the learned Single Judge has made it clear that the said order will not prejudice any of the parties in the pending suits in any manner whatsoever. 8. However, we only clarify that in the facts and circumstances of the instant case, the expression "in accordance with law" will mean that the respondent nos.1-4 are required to approach the Civil Court where the title suit is pending for the purpose of obtaining an order for inspection prior to erection of the boundary wall by invoking the provision of Order XXXIX Rule 7 of the Code of Civil Procedure for the purpose of identifying the extent of area where the boundary wall has to be erected. The Civil Court, upon such application being made, shall hear out the matter as expeditiously as possible, preferably within a period of two months, but not later than three months from the date of its filing by the respondent nos.1-4 in terms of this order. 9. We make it clear that the above direction shall not cause any prejudice to the rights of the parties in respect of the civil suit, being Title Suit No.67 of 2016, pending before the learned Civil Judge (Junior Division), 2nd Court at Sealdah, in any manner whatsoever. 10. The appeal and the application for stay stand disposed of accordingly. 11. Urgent photostat certified copy of this order, if applied for, be given to the parties. I agree. Arindam Mukherjee, J.