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Suresh Chandra Sen v/s Zoom Health Care

    C.O. No. 1179 of 2011

    Decided On, 03 August 2011

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE PRASENJIT MANDAL

    For the petitioner: Mr. Gopal Chandra Ghosh, Mr. Debopratim Banerjee, Advocates. For the Opposite party: Mr. Saptangshu Basu, Ms. V. Bhatia, Advocates.



Judgment Text

Prasenjit Mandal, J.

This application is directed against the order dated June 28, 2010 passed by the learned Civil Judge (Junior Division), 1st Court, Barasat in Title Suit No.347 of 2010 thereby dismissing the said misc. appeal arising out of the Order No.2 dated June 26, 2010 passed by the learned Civil Judge (Junior Division), 1st Court, Barasat in Title Suit No.347 of 2010.

The short fact is that the petitioner / appellant instituted a suit being Title Suit No.347 of 2010 praying for permanent injunction against the respondent / opposite party herein in respect of ‘A’ schedule property as described in the schedule of the plaint. He filed an application under Order 39 Rule 1 & 2 of the C.P.C. praying for temporary injunction restraining the respondent / opposite party herein from raising any pucca or kuncha construction over the ‘A’ schedule property. The prayer for ad interim of injunction was moved accordingly, but, the learned Trial Judge refused to grant any ad interim injunction. Being aggrieved by such order of refusal of an ad interim order of injunction, the petitioner preferred a misc. appeal and the Lower Appellate Court dismissed the said misc. appeal by the impugned order. Being aggrieved, this application has been preferred. Now, the question is whether the impugned order should be sustained.

Upon hearing the learned counsel for the parties and on going through the materials on record, I find that the plaintiff filed a suit being Title Suit No.309 of 1990 for specific performance of contract and other reliefs. That suit was decreed ex parte in 1998 and the plaintiff has filed an application for execution of the said decree and the said execution case is still pending. That execution case and the subject-matter of the present suit relate to the selfsame property. The defendant has contended that they purchased the land in 1998. The question whether the said sale in favour of the defendant was done with notice of the earlier agreement for sale and whether the subsequent decree was passed against the vendor of the defendant before the sale are to be determined at the stage of trial upon recording evidence on behalf of both the sides.

It is the specific contention of the plaintiff that the defendant / opposite party is trying to make construction on the suit property. If it is done in the mean time, then the nature of the suit will be complicated and the plaintiff may have to seek for further reliefs against the defendant in case of being dispossed from the suit property.

In consideration of the above situation, I am of the view that the plaintiff has shown prima facie case to go for trial in the suit and that there is an urgency in passing interim order restraining the defendant from making any construction. However, the defendant has raised the contention that they are in possession of the suit property by purchased.

The learned Trial Judge has rejected the prayer for temporary injunction on the ground that if the prayer is allowed then it will be the grant of the main prayer in the said suit and such relief should not be granted at the time of disposal of the interlocutory matter.

But, I am of the view that unless any restraint order is passed and if the defendant who has land to the East and North of the suit property, makes construction on the land in suit, it will be difficult for the plaintiff to recovery of possession of the suit land. So, in consideration of the urgency of the matter, I am of the view that there should be an order of status quo till the disposal of the application for temporary injunction. If the order of status quo is granted, I am of the view that neither of the parties will be prejudiced.

During the argument, Mr. Saptangshu Basu, Senior Advocate appearing on behalf of the opposite party has referred to the decision of 2008(11) SCC 1 and thus, he submits that when a party is claiming the suit property under a title, he should not be deprived of making construction thereof. In that decision, the matter of dispute was for partition and the prayer for injunction was refused as one of the parties collected building materials by expending huge money and if the order of injunction was granted, the party collecting the materials at huge expenses would suffer loss by lapse of time. It is not the present situation. Therefore, this decision will not be applicable in the instant case.

In that view of the matter, I am of the opinion that the learned Lower Appellate Court has failed to exercise the jurisdiction properly and he has committed errors of law in passing the impugned order.

The impugned order cannot be sustained. The revisional application is, therefore, allowed. The impugned order is hereby set aside. Both the parties are directed to maintain status quo in respect of the suit property as it stands today till the disposal of the application for temporary injunction. The learned Trial Judge is directed to give an opportunity to the defendants to file a written objection within 7 days from the date of communication of this order to him. Thereafter, he shall dispose of the application for temporary inju

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nction within 30 days from the date of filing of the written objection against the application for temporary injunction. It is recorded that the above observations have been made on perusal of the materials as produced by the plaintiff before the Lower Appellate Court and that the defence version has not been considered. While disposing the application for temporary injunction, the learned Trial Judge shall consider the contentions of both parties, and then he shall pass the appropriate orders thereon. Considering the circumstances, there will be no order as to costs.
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