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2023 DIGILAW 1222 (CAL)

Anand Singh Yadav v. Poonam Raj

2023-07-25

RAJA BASU CHOWDHURY

body2023
JUDGMENT : Raja Basu Chowdhury, J. 1. Affidavit-of-service filed in Court today is taken on record. Despite service none appears to oppose the present application. The petitioner in this application is the plaintiff in a suit for specific performance of a contract for sale executed between the plaintiff and the defendant nos.1 & 2, for themselves as also on behalf of the defendant nos. 3 and 4, on 24th December 2016. 2. It is the plaintiff’s case that the plaintiff was inducted as a monthly tenant in respect of the suit property by defendant nos. 1 and 2 for a monthly rental payable to the defendants. The plaintiff runs a business of Bar-cum-Hotel, run under the name and style of Honey Everest Restaurant and Bar from the suit property. 3. In terms of the aforesaid agreement for sale the plaintiff has already paid a sum of Rs.26 lakhs as earnest money out of the agreed consideration of Rs.1 crore only. It was agreed by and between the parties to the agreement that the balance consideration of Rs.74 lakhs would be paid at the time of registration of the sale deed and that so long the sale deed is not registered, the plaintiff shall continue to occupy the suit property as a tenant. It was also agreed that the defendant nos. 1 and 2 would convey the suit property to the plaintiff within a period of four years from the date of execution of the agreement for sale. 4. Inasmuch, as the defendant nos. 1 to 4 were negotiating with third parties, the plaintiff apprehending dispossession, in the facts and circumstances, as set forth in the plaint has filed the instant suit, inter alia, for specific performance of the aforesaid agreement for sale. The plaintiff contends that the plaintiff at all material time, was and is ready and willing to perform his part of the obligations under the contract. 5. Simultaneously, with the filing of the aforesaid suit the plaintiff had also filed an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure for grant of ad interim temporary injunction. 5. Simultaneously, with the filing of the aforesaid suit the plaintiff had also filed an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure for grant of ad interim temporary injunction. By an order dated 15th July, 2020 the learned Court upon taking into consideration the case as made out by the plaintiff was pleased to pass an order of ex-parte, ad interim injunction thereby, directing maintenance of status quo with regard to the existing nature and character of suit property as well as alienation of the same till 14th August, 2020. 6. On the returnable date the defendants having entered appearance, the learned Court in presence of the defendants was, inter alia, pleased to extend the ad interim order. From the order sheet it would appear that by an order dated 27th April, 2021, the learned Court was, inter alia, pleased to permit the defendants to file written objection to the aforesaid injunction application. Since, thereafter, from time to time the aforesaid interim order was extended. Hearing of the injunction application, however, could not be completed in as much as the defendants choose not to file any written objection. 7. On 9th January, 2023 since, the regular Presiding Officer was on leave the matter was taken up for consideration by the learned Charge Court. On the said date the defendant no.5 had filed an application for rejection of the plaint under Order 7 rule 11 of the Code of Civil Procedure. Incidentally, on the aforesaid date the plaintiff did not take any steps. Although, the matter was thereafter, posted for consideration on 30th March, 2023 since, the said date was declared to be a holiday the matter was taken up on 31st March, 2023, when, despite the plaintiff having filed an application for extension of the interim order the learned Court had refused to extend the interim order, inter alia, on the ground that on 9th January, 2023 the interim order had already lapsed. 8. The plaintiff had since, filed an application under Section 151 of the Code of Civil Procedure for re-imposition of the order of injunction. By order No.17 dated 10th March, 2023 the learned Court was, inter alia, pleased to reject the said application. 9. Challenging the aforesaid order, the present application under Article 227 of the Constitution of India has been filed. By order No.17 dated 10th March, 2023 the learned Court was, inter alia, pleased to reject the said application. 9. Challenging the aforesaid order, the present application under Article 227 of the Constitution of India has been filed. As noted above despite service, none appears on behalf of the Opposite Parties/Defendants to oppose. 10. It would appear from the order sheet that the ex parte ad interim order of injunction passed on 15th July, 2020 was subsequently extended in the presence of the defendants. It would also appear from the Order Sheet that the defendants have chosen not to file any written objection to the injunction application. The aforesaid injunction application is pending consideration before the trial Court and has not been disposed of. Admittedly, since, the plaintiff was found to be in possession of the suit property, the order of injunction was granted. No application for vacating or variation of the aforesaid order has been filed by the defendants/ opposite parties. 11. Having regard to the aforesaid and the conduct of the defendants, I am of the view that the plaintiff cannot be made to suffer for his failure to apply for extension of the interim order on one particular date. It would also appear from the Order Sheet that the plaintiff has been diligently pursuing the aforesaid matter. Since, no written objection had been filed by the defendants the injunction application was kept pending. The interim order which was passed on 15th July 2020, was extended from time to time in presence of the defendants and continued to remain in force till 9th January 2023. 12. Taking note of the aforesaid, I am of the view that the learned Court ought to have reimposed the interim order of injunction that was passed by the learned Court on 15th July, 2020, especially when the injunction application was pending. Accordingly, the interim order of injunction that was passed by the learned Court on 15th July, 2020 is reimposed and shall continue till disposal of the injunction application. In view thereof, the order dated 10th April, 2023 passed by the learned Civil Judge, Senior Division, Port Blair is set aside. 13. The learned Civil Judge, Senior Division at Port Blair is directed to hear out and dispose of the injunction application on its own merit without being influenced by any of the observations made herein. 14. In view thereof, the order dated 10th April, 2023 passed by the learned Civil Judge, Senior Division, Port Blair is set aside. 13. The learned Civil Judge, Senior Division at Port Blair is directed to hear out and dispose of the injunction application on its own merit without being influenced by any of the observations made herein. 14. The revisional application, accordingly, stands disposed of. 15. There shall be no order as to costs. 16. Urgent photostat certified copy of this order if applied for be made available to the parties upon compliance of all formalities.