Calcutta High Court (Appellete Side)
Subrata Saha And Another vs Sukhen Banerjee on 14 February, 2019
1 S/L. 13.
February 14, 2019.
MNS.
C. O. No. 106 of 2019 Subrata Saha and another Vs. Sukhen Banerjee Mr. Debasish Roy, Mr. Ambu Bindu Chakraborty, Ms. Dolon Dasgupta ...for the petitioners.
Mr. Animesh Paul ...for the opposite party.
Affidavit-of-service filed in Court today be taken on record. Parties are represented through their learned counsel in court today. By virtue of the impugned order, two recall applications of the defendants/petitioners were dismissed by the trial court.
The plaintiff/opposite party filed a suit for declaration of his tenancy right and consequential reliefs. In the said suit, the plaintiff applied for injunction and initially an ad interim order of injunction was passed on April 10, 2017 restraining the defendants/petitioners from dispossessing the plaintiff without due process of law. Subsequently, on July 6, 2017, the plaintiff/opposite party filed an application for implementation of the ex parte ad interim order by police help. 2
On August 8, 2018, the injunction application itself was disposed of, also ex parte, thereby granting temporary injunction in the same tune as the ad interim order.
Thereafter on August 28, 2018, an application for police help filed by the plaintiff/opposite party was allowed ex parte, thereby granting police help to prevent breach of the ad interim injunction order dated April 10, 2017.
The present petitioners filed two applications, respectively for recall of the orders dated August 8, 2018 granting ex parte temporary injunction and August 28, 2018, whereby police help was allowed ex parte.
Learned counsel appearing for the petitioners argues that the petitioners could not be represented either on August 8, 2018 or August 28, 2018, since there was illness in the family and the petitioners were in a disturbed state of mind and due to consequential forgetfulness.
This apart, as far as the order allowing police help is concerned, it is submitted that the said application itself had become infructuous when it was allowed, in view of the ad interim order dated April 10, 2017, for implementation of which it had been filed, having already merged with the final order of temporary injunction dated August 8, 2018.
It is further argued that initially on August 21, 2018, the next date was fixed on October 10, 2018, which appeared in the cause list as well. Therefore, the petitioners were smug in their belief that the matter would be taken on October 10, 2018, when suddenly police came to the suit premises on October 1, 2018 and the petitioners for the first time came to know that the next date had been shown in the cause list to be fixed on August 28, 2018.
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Upon immediate inquiry, the petitioners learnt on October 4, 2018 that there had been an apparent interpolation in the order sheet, changing the next date from October 10, 2018 to August 28, 2018.
It is submitted by learned counsel for the petitioner that even the trial court, while passing the impugned order, categorically found that there was an overwriting in the cause list of the trial court and upon the bench clerk having explained away his mistake for such overwriting, the bench clerk was directed to be careful in that regard in future.
As such, it is argued that both the applications for recall ought to have been allowed by the trial court.
Learned counsel for the plaintiff/opposite party argues that it was well within the knowledge of the petitioners that an order of injunction had been passed ex parte on April 10, 2017. Despite such knowledge, the petitioners had been violating the said order, necessitating the police help application. Since the ex parte ad interim order itself was continued by the final order of temporary injunction, the trial court was justified in allowing the police help application and subsequently refusing to recall the same. As far as the recall of the ex parte temporary injunction was concerned, it is submitted that credible grounds were not made out for recalling the same.
It appears that the opposite party is correct in submitting that the petitioners' application for recalling the ad interim temporary injunction dated August 8, 2018 did not contain credible grounds. The illness urged before this Court and apparently at the hearing of both the recall applications, was not even mentioned in the recall applications, thereby precluding the court from looking into any connected papers. 4
As such, mere forgetfulness, which was the other ground of the recall application, could not be a valid cause for recalling the ex parte temporary injunction order, passed on merits.
However, as far as the ex parte police help order dated August 28, 2018 is concerned, the same cannot stand.
First, on the date when the police help order was passed, the application for police help had already become infructuous in view of the ex parte ad interim order of injunction dated April 10, 2017, of which implementation was sought, having merged with the final order of temporary injunction dated August 8, 2018.
Moreover, in view of the finding in the impugned order as to there being overwriting in the cause list, benefit of doubt ought to be given to the petitioners for committing the error of thinking that October 10, 2018 was the next date fixed and not August 28, 2018.
Accordingly, C. O. No. 106 of 2019 is allowed in part, thereby partially setting aside the impugned order dated December 7, 2018 inasmuch as the same pertained to refusal to recall the ex parte police help order dated August 28, 2018. The police help order dated August 28, 2018 is hereby recalled.
It is made clear that the rest of the impugned order remains intact and the ex parte temporary injunction order dated August 8, 2018 is sustained.
It is further made clear that this order will not prevent the opposite party from taking out any application for police help, if necessary, regarding violation of the temporary injunction order dated August 8, 2018.
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In the event such application is filed, the trial court will decide the same in accordance with law upon giving appropriate hearing to both sides without being influenced by any of the observations made herein.
There will be no order as to costs.
Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.
(Sabyasachi Bhattacharyya, J.)