Calcutta High Court (Appellete Side)
Orbit Towers Pvt. Ltd vs Lokenath Foundation & Ors on 27 February, 2014
Author: Debangsu Basak
Bench: Debangsu Basak
IN THE HIGH COURT AT CALCUTTA
Civil Revisional Jurisdiction
Appellate Side
Before:
The Hon'ble Justice Debangsu Basak
C.0. No. 348 of 2014
Orbit Towers Pvt. Ltd.
Vs.
Lokenath Foundation & Ors.
For the Petitioner : Mr. S.N. Mitra, Advocate
Mr. R. Basu Roy Chowdhury, Advocate
Mr. M. Bose, Advocate
Mr. K. Saha, Advocate
For the Opp. Parties/
Respondents : Mr. S.P. Roy Chowdhury, Advocate
Mr. P.K. Mukherjee, Advocate
Mr. R. Dutta, Advocate
Heard on : February 24, 2014
Judgment on : February 27, 2014
DEBANGSU BASAK, J.
This revisional application at the instance of the Defendant No. 23 was directed against the Order dated January 30, 2014 whereby the learned Civil Judge (Senior Division) 7th Court at Alipore dismissed an application under Section 151 of the Code of Civil Procedure, 1908 filed by the Defendant No. 23 on April 10, 2013. By such application the Defendant No. 23 sought recalling of the Order dated March 13, 2012. A suit for declaration and injunction was instituted on June 6, 2011 before the learned Civil Judge (Senior Division) 7th Court at Alipore. The plaintiff applied for ex parte ad-interim order which was refused. The plaintiff preferred an appeal therefrom. On appeal, the learned District Judge passed an interim order of injunction on June 14, 2011. This order was challenged by the Defendant No. 23 under Article 227 of the Constitution of India which was registered as C.O. No. 2551 of 2011. On revision the order of injunction was set aside. The learned District Judge was directed to dispose of the appeal at an early date. The learned District Judge on hearing the appeal dismissed the same on September 20, 2011. The plaintiff challenged the order of dismissal of appeal before this Hon'ble Court under Article 227 of the Constitution of India which was registered as C.O. No. 3526 of 2011. The same was dismissed. The plaintiff preferred special leave petition. The Hon'ble Supreme Court of India was pleased to dispose of the special leave petition by directing the learned Civil Judge (Senior Division) 7th Court at Alipore to hear and dispose of plaintiff's interlocutory application. The defendants were granted liberty to file written statement within 2 months from the date of communication of the order to enable the learned Civil Judge to frame issues and, thereafter to proceed for recording of the evidence.
The learned Civil Judge (Senior Division) 7th Court at Alipore passed an order of injunction on March 13, 2012. The Defendant No. 23 on becoming aware of such injunction made an application under Section 151 of the Code of Civil Procedure, 1908. Such application was contested. Such application was disposed of by the impugned Order dated January 30, 2014 by refusing to recall the Order dated March 13, 2012.
The petitioner contended that, when the learned Judge was refusing to pass ex parte ad-interim order of injunction on June 6, 2011, he required the plaintiffs to put in requisition. The next date was September 2, 2011. The injunction petition according to the petitioner was posted on April 16, 2012. Till that date the petitioner was not served the copy of the injunction petition. The next entry on the order sheet was the Order dated January 3, 2012 which took note of the Order dated December 9, 2011 of the Hon'ble Supreme Court of India. In view of such order the learned Court was pleased to prepone the date from April 16, 2012 to January 13, 2012.
On January 13, 2012, it was contended by the petitioner that, the plaintiff was not present before the learned Judge. The learned Judge required the plaintiff to inform the defendant. According to the petitioner, the plaintiff did not comply with this Order dated January 13, 2012.
According to the petitioner, it was not aware of this development. In absence of the petitioner, the learned Judge passed an Order on March 13, 2012 requiring the plaintiff to communicate the Order dated January 13, 2012. This Order of March 13, 2012 remained uncomplied with. The petitioner was denied an opportunity to contest the injunction application on merits. The petitioner made the application for recalling immediately on coming to know of the Order dated March 13, 2012. On behalf of the plaintiff/opposite party it was contended that, the parties were bound by the directions contained in the Order dated December 9, 2011 passed by the Hon'ble Supreme Court of India. By such order the Hon'ble Supreme Court of India directed the learned Civil Judge (Senior Division) 7th Court at Alipore to hear and dispose of the plaintiff's injunction application as expeditiously as possible and preferably within a period of 1 month from the date of communication of the order. The plaintiff/opposite parties contended that, it was inconceivable that the injunction application was not available with the petitioner when the order was passed by the Hon'ble Supreme Court of India. The petitioner did not make any complaint there. It was next contended on behalf of the plaintiff/opposite parties that, the impugned order recorded service of notice on the petitioner. The Court was required to proceed on the basis of the finding returned by the learned Judge. There was no application before the learned Judge that, the finding recorded in the impugned order as to service was incorrect. According to the plaintiff/opposite parties the petitioner did not produce any record before this Hon'ble Court to demonstrate that, the finding as to service recorded in the impugned order was incorrect. The plaintiff/opposite parties next contended that, the stand of the petitioner was malafide. The petitioner took steps in the suit and filed written statement. The petitioner deliberately did not file written objection to injunction application and waited to see the result of the injunction application. It was further submitted on behalf of the plaintiff/opposite parties that, the provisions of Section 151 of the Code of Civil Procedure, 1908 was not available to the petitioner to have the Order dated March 13, 2012 recalled.
I have heard the rival contentions of the parties and perused the materials on record. The plaintiff failed to obtain ex parte ad-interim order of injunction from which it preferred an appeal. The learned District Judge passed an interim order of injunction on June 14, 2011 which was challenged under Article 227 of the Constitution of India. On contested hearing of the appeal the injunction was vacated on September 20, 2011. This order on appeal was challenged in a revisional application. The revisional application was dismissed. The dismissal of the revisional application was challenged by way of a special leave petition which was disposed of by the Order dated December 9, 2011 requiring learned Civil Judge (Senior Division) 7th Court at Alipore to hear and dispose of the plaintiff's interim order of injunction petition preferably within a period of one month from the date of communication of the order. The learned Judge noted the Order dated December 9, 2012 on January 3, 2013. The next date in the order sheet was January 13, 2012 which recorded that the parties took no steps and were found absent in spite of repeated calls. For the ends of justice the hearing of the injunction petition was adjourned to January 24, 2012. The plaintiff was directed to inform the defendants immediately. The Advocate for the plaintiff saw the Order dated January 13, 2012 on January 18, 2012 and made an endorsement to such effect in the order sheet. No communication was received by the petitioner from the plaintiff's Advocate. After several dates, thereafter, the injunction application was taken up for hearing on March 13, 2012. During all of this time the petitioner was absent. The record does not show that the plaintiff complied with the Order dated January 13, 2012 in the interregnum. When the injunction petition was taken up for hearing on March 13, 2012 the learned Judge returned a finding that, despite service of notice the petitioner did not participate in the hearing of the injunction application. The petitioner applied under Section 151 of the Code of Civil Procedure, 1908 which gave rise to the impugned order. In such application the petitioner averred that the plaintiff did not take steps in terms of the Order dated January 13, 2012 and that the plaintiff did not inform the defendant. In the written objection filed by the plaintiff/opposite parties such averment was not denied. In fact, it was stated that the statements made by the petitioner were matters of record.
It was true that the Order dated December 9, 2012 of the Hon'ble Supreme Court of India was passed in presence of the parties. The carriage of the proceedings of the suit was with the plaintiff. The plaintiff ought to have informed the petitioner when the plaintiff was communicating the Order dated December 9, 2011 to the learned Trial Judge. The plaintiff was required by the Order dated January 13, 2012 to inform the petitioner/Defendant No. 23 in the suit as to the next date fixed for injunction hearing. The specific order of the learned Trial Judge dated January 13, 2012 requiring the plaintiff to inform the defendant was not complied with. Apart from the recording in the Order dated March 13, 2012 that despite service of notice the petitioner did not participate in the injunction application there was no other materials on record to show that the petitioner was served. The petitioner applied for recalling of the Order dated March 13, 2012 on the basis that it proceeded on an erroneous premise as to service. No material was produced to show that the finding recorded in the Order dated March 13, 2012 as to service was correct. In my view, therefore, the learned Judge erred in holding that notice of the injunction application was served by the plaintiff/opposite party on the petitioner on March 13, 2012. On this ground alone the petitioner was entitled to have its application under Section 151 of the Code of Civil Procedure, 1908 allowed.
In such view, the learned Court was not correct in rejecting the application filed by the petitioner/Defendant No. 23. By the Order dated March 13, 2012 the learned Judge disposed of the injunction application.
I set aside the impugned Order dated January 30, 2014. The Order dated March 13, 2012 is recalled. I direct the plaintiff/opposite party to serve a copy of the injunction application on the petitioner forthwith. The petitioner will be entitled to file written objection to the injunction application within one week from the date of receipt of the injunction petition. The plaintiff will be entitled to file a written reply, if required, within one week thereafter. The learned Trial Judge will endeavour to dispose the injunction application on merits as expeditiously as possible preferably within two months thereafter. During the pendency of the injunction application the Defendant No. 23 will not alienate the suit property. This order of injunction is passed to protect the rights of the parties during the pendency of the injunction petition.
I make it clear that I have not adjudicated on the merits of the injunction petition. None of the observations made herein will be taken into account for the disposal of the injunction petition. Certified website copies of this order, if applied for, be urgently supplied to the parties subject to compliance with all requisite formalities.
[DEBANGSU BASAK, J.] Later:
Plaintiff served the copy of the injunction application upon the Defendant No. 23. In terms of the order, the Defendant No. 23 will file written objection within one week from today. Reply, if any, within one week thereafter.
The plaintiff and the Defendant No. 23 will communicate this order to the learned Trial Judge immediately.
The Defendant No. 23 has filed written statement which is not disputed by the plaintiff.
In such view, let the suit be taken out from the ex parte Board.
[DEBANGSU BASAK, J.]