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2020 DIGILAW 686 (CAL)

State Of West Bengal v. Enkon Pvt. Ltd.

2020-12-24

HIRANMAY BHATTACHARYYA

body2020
JUDGMENT Hiranmay Bhattacharyya, J. - The defendants have filed the instant application under Article 227 of the Constitution of India challenging the order dated December 8, 2017 passed by the Learned District Judge, 24 Parganas (N) at Barasat in Miscellaneous Appeal No. 158 of 2016. 2. The opposite party herein filed a suit being Title Suit No. 302 of 2016 before the Civil Judge (Senior Division) Second Court at Barasat praying for a declaration that the opposite party is a tenant in respect of C Schedule property, recovery of money and for permanent injunction. 3. In connection with the said suit the opposite party herein filed an application under Order 39 Rule 1 and 2 read with Section 151 of the Code of Civil Procedure praying for temporary injunction. 4. The Learned Trial Judge by an order being no. 11 dated September 22, 2016 rejected the application under Order 39 Rule 1 and 2 of the Code on contest. 5. The opposite party herein preferred a miscellaneous appeal being no. 158 of 2016 challenging the aforesaid order dated September 22, 2016. The Learned District Judge in charge 24 Parganas (N) by an order being no. 11 dated December 8, 2017 allowed the prayer for ad interim injunction. Both the parties were directed to maintain status-quo in respect of causing any disturbance or hindrance in peaceful displaying the advertisement boards over the C schedule property till January 10, 2018. 6. Being dissatisfied with the order dated December 8, 2017 passed in Misc. Appeal No. 158 of 2016, the defendants have filed the Civil Order no. 3762 of 2018. 7. The ad interim order of injunction passed on December 8, 2017 was extended from time to time. The Learned Court of Appeal below by an order dated September 5, 2018 extended the ad interim order till December 21, 2018. 8. The defendants have challenged the aforesaid order dated September 5, 2018 passed in Misc. Appeal No. 158 of 2016 by filing another application under Article 227 of the Constitution of India being Civil Order No. 4314 of 2018. 9. Since both the civil orders arise from the same suit and the issues involved therein are interconnected, the aforesaid civil revisional applications were taken up for hearing analogously. 10. Mr. Appeal No. 158 of 2016 by filing another application under Article 227 of the Constitution of India being Civil Order No. 4314 of 2018. 9. Since both the civil orders arise from the same suit and the issues involved therein are interconnected, the aforesaid civil revisional applications were taken up for hearing analogously. 10. Mr. Chatterjee, the Learned Advocate appearing for the opposite party raised a preliminary objection with regard to the maintainability of the aforesaid applications filed under Article 227 of the Constitution of India. Mr. Chatterjee contends that the ad interim order of injunction passed on December 8, 2017, which is impugned in CO no. 3762 of 2018, lost its force after January 10, 2018. Similarly the order extending the ad interim order of injunction on September 5, 2018, which is impugned in CO No. 4314 of 2018, lost its force after December 21, 2018. He contends that the aforesaid applications under Article 227 of the Constitution of India have become infructuous as the petitioners herein have not challenged the subsequent orders passed by the learned court of appeal below extending the ad interim order of injunction. In support of his submission he relied upon a judgment of the Hon'ble Division Bench of this court passed on April 30, 2018 in FMAT 1102 of 2017 with CAN 9964 of 2017 (Siddharth Gupta vs. Somdeo Gupta). 11. Mr. Partha Pratim Roy, the learned advocate for the petitioners seriously disputed the contentions raised by Mr. Chatterjee. He contended that extension of an order implies prolongation or expansion or lengthening of an order which is in existence in the eye of law. According to him, if the original order has no existence in the eye of law or invalid, there is no scope for such extension and the order granting extension cannot have any effect. Mr. Roy relied upon a judgment of the Hon'ble Division Bench of this Court in the case of Supratik Ghosh and Ors. vs. Pasari Housing Development Pvt. Ltd., (2000) 1 CalHN 614 . In support of his aforesaid contention he also relied upon a judgment in the case of British Airways PLC vs. Barunendra Nath Basu, (2002) 1 CalLJ 549 and submitted that merely because the order extending the order under challenge had not been challenged separately, a civil revisional application challenging the original order cannot be rendered infructuous and the same is still maintainable. 12. 12. I have heard the learned advocates of the respective parties on the point of maintainability and have considered the materials on record including the judgments relied upon by the parties. 13. After going through the judgments relied upon by the learned advocates for the respective parties, I find that the Hon'ble Division Benches of this court have expressed divergent views on the issue as to the maintainability of an appeal against an interim order of injunction in case the subsequent extensions have not been challenged. 14. As such I am of the view that the following question is to be referred for consideration by a larger Bench- 15. Whether an application under Article 227 of the Constitution of India challenging the original order granting interim injunction would still be maintainable or becomes infructuous upon the said order being extended and the subsequent extensions are not challenged? 16. Accordingly the Registry is directed to place the records of the instant Civil Order no. 3762 of 2018 before the Hon'ble the Chief Justice for constituting a bench of appropriate strength to decide the above points. 17. Urgent photostat certified copy of this judgment, if applied for, be supplied to the parties on priority basis. Later 24.12.2020 After the delivery of judgment, Mr. Partha Pratim Roy, learned advocate appearing on behalf of the petitioners submits that the miscellaneous appeal is fixed for hearing on January 29, 2021 before the learned court of appeal below. He prays for a direction upon the Court below to dispose of the Misc. Appeal expeditiously. It is made clear that pendency of the matter before this Hon'ble Court shall not preclude the learned court of appeal below from taking up the miscellaneous appeal for hearing.