Calcutta High Court (Appellete Side)
CO-1180-2010 on 13 May, 2016
Author: Tapash Mookherjee
Bench: Tapash Mookherjee
1
C.O. 1180 of 2010
13.5.2016Dr. Indrajit Mondal sk Mr. Amit Banerjee .....for the petitioners.
Mr. Pinaki Ch. Dhole ....for the opposite parties.
The present revisional application is directed against the order dated 4th March, 2010 passed by the learned District Judge, Malda in Misc. Appeal No. 23 of 2009.
The facts leading to the present revisional application under Article 227 of the Constitution of India in short may be summarized as follows:-
The opposite parties in this revisional application filed a suit against the present petitioners in the Court of Civil Judge (Junior Division), 1st Court, Malda, registered as O.C. Suit No. 13 of 2008. The present opposite parties after filing of the suit filed an application under Order 39, Rule 1 & 2 of the Civil Procedure Code for temporary injunction. The present petitioners did not appear in the suit at that stage. On 4th June, 2008, learned Trial Court allowed the opposite parties' application under Order 39, Rule 1 & 2 of the Civil Procedure Code and restrained the present petitioners from disturbing the opposite parties' possession in the suit property. Sometimes thereafter, the present petitioners appeared in the suit and filed an application under Order 39, Rule 4 C.P.C.
read with Section 151 of the Civil Procedure Code and thereby prayed for the recall of 2 the order of temporary injunction passed earlier. The said application under Order 39, Rule 4 of the C.P.C. was rejected by the learned Trial Court on 29th September, 2009.
Being aggrieved by the order dated 29th October, 2009, the present petitioners filed a Misc. Appeal registered as Misc. Appeal No. 23 of 2009 in the Court of the District Judge, Malda. The present opposite parties appeared and contested the appeal. After hearing both the parties the Appellate Court dismissed the appeal on contest and affirmed the order of the Trial Court dated 29th September, 2009. Being aggrieved and dissatisfied with such order, the defendants in the suit have filed the present appeal.
Dr. Mondal, learned Advocate appearing for the petitioners submits that the order of temporary injunction passed in the suit by the Trial Court on 4th June, 2008 was passed behind the back of the present petitioners and without ascertaining whether the notice of the application for temporary injunction had been duly served upon the defendants in the suit, or not.
Dr. Mondal has further submitted that the present opposite parties obtained the injunction from the Trial Court by suppressing the materials facts relating to the title and possession of the present petitioners in the suit property acquired by deed of gift on 7th July, 2000 by the Relief & Rehabilitation Department, Government of West Bengal and subsequently affirmed in T.S.No. 39 of 1983.
Dr. Mondal has further added that the provision in Order 39, Rule 4 C.P.C. has prescribed the remedy in the circumstances of the case but both the Trial Court as well 3 as the Appellate Court were of the erroneous view that the application under Order 39, Rule 4 C.P.C. was not applicable in the situation.
On the other hand, Mr. Dhole has submitted that in spite of notice, the petitioners did not appear to contest the petition for temporary injunction and hence, the Trial Court had rightly decided the application for temporary injunction ex parte against the present petitioners. He has further submitted that the suit property was settled to one Jiten Mandal, the predecessor-in-interest of the present opposite parties by the Relief & Rehabilitation Department, Government of West Bengal and the opposite parties are in possession of the suit property on the basis of such settlement and hence the Trial Court had rightly restrained the present petitioners from interfering with the peaceful possession of the present opposite parties in the suit property.
Admittedly, an order of temporary injunction was passed in the suit property ex parte by the Trial Court on 4th June, 2008 whether the present petitioners received the summons of the suit or the notice of the application for temporary injunction cannot be ascertained in this revisional application. However, in the order dated 4th June, 2008, it is recorded that the present petitioners had the opportunity to contest the application.
Order 39, Rule 4 C.P.C. runs as follows:-
ORDER FOR INJUNCTION MAY BE DISCHARGED, VARIED OR SET ASIDE.
"Any order for an injunction may be discharged, or varied, or set aside by the Court, on application made thereto by any party dissatisfied with such order".4
According to the present petitioners, the order of temporary injunction was passed without giving them any opportunity of being heard. It was also the case of the present petitioners that the order of temporary injunction was passed suppressing some materials facts. So the order of temporary injunction passed in the suit can very well be challenged under the provision in Order 39, Rule 4 C.P.C. and in such a case filing of any appeal against the order of temporary injunction passed under Order 39, Rule 1 & 2 C.P.C., is not needed nor any separate application is needed for recall of the order of temporary injunction. But according to the Trial Court it had not the jurisdiction to entertain such application under Order 39, Rule 4 C.P.C. and as such, the application under Order 39, Rule 4 of the C.P.C. was a 'misconceived' application.
Learned Appellate Court while affirming the order of the learned Trial Court dated 29th September, 2009 was also of the view that the application under Order 39, Rule 4 C.P.C. was not an appropriate application and a separate appeal should have been filed against the order of temporary injunction dated 4th June, 2008.
In the circumstances, I have no hesitation to hold that both the learned Trial Court and the learned Appellate Court committed error in law by considering the application under Order 39, Rule 4 C.P.C. as a 'misconceived' application.
The original suit being O.C.Suit No. 13 of 2008 involves dispute of title and possession over the suit property. In the circumstances, the suit property in its present 5 condition should be preserved for the benefit of both the parties and for such reason, parties should be directed to maintain status quo in connection with the suit property.
In view of the discussion above, the judgment and order dated 4th March, 2010 passed by the learned District Judge, Malda in Misc. Appeal No. 23 of 2009 and order dated 29th September, 2009 passed by the learned Civil Judge (Junior Division), 1st Court, Malda in O.C.Suit No. 13 of 2010 are both set aside.
The parties are directed to maintain status quo as on this date in respect of possession of the suit property.
The revisional application is, accordingly, disposed of. It is an old suit so the learned Trial Court should take all possible steps for an early disposal of the suit.
Send a copy of this order to the learned Courts below at once. Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.
( Tapash Mookherjee J. )