Calcutta High Court (Appellete Side)
1610/2011 on 1 December, 2011
Author: Prasenjit Mandal
Bench: Prasenjit Mandal
01.12.2011 C.O. No. 1610 of 2011 s.d. Mr. Bidyut Banerjee,
Mr. Animesh Das ..... for the petitioners. Mr. Mahendra Prasad Gupta ... for the opposite party.
Heard the learned advocates of both the sides. This application is at the instance of the defendants and is directed against the order dated February 14, 2011 passed by the learned Civil Judge (Senior Division), 3rd Court, Howrah in Title Suit No.12 of 2011 thereby allowing the prayer for police help.
The plaintiff / opposite party herein instituted a suit being Title Suit No.12 of 2011 praying for partition, declaration, permanent injunction and other reliefs. At the time of filing of the said suit, the plaintiff moved an application for temporary injunction along with a prayer for ad interim injunction. The learned Trial Judge granted ad interim order of injunction. Thereafter, the plaintiff / opposite party moved an application under Section 151 of the C.P.C. praying for police help for implementation of the order of ex parte ad interim injunction. That prayer was allowed. Being aggrieved by such orders, this application has been preferred.
Upon hearing the learned Advocates of both the sides on perusal of the materials on record, I find that immediately after institution of the suit, the plaintiff moved an application for temporary injunction along with a prayer for ex parte ad interim order. That prayer was granted and the plaintiff complied with the provisions of Order 39 Rule 3 (a) & (b) of the C.P.C. Immediately, thereafter, the application for police help was sought for and it was granted at once without waiting for appearance of the defendants.
As noted earlier, the said suit was one for partition and other reliefs amongst the co-owners. It is submitted before me that the defendants preferred an F.M.A.T. before this Hon'ble Court against the order of ad interim injunction and that matter shall be considered by this Hon'ble Court in due course.
Now, the question is whether the impugned order relating to grant of police help ex parte should be sustained.
Since, the suit is for partition and the learned Trial Judge has granted the police help in quick succession of the order passed relating to injunction, I am of the view that the steps taken by the learned Trial Judge in disposing of the application cannot be supported. The learned Trial Judge should have waited for a reasonable time for appearance of the defendants / petitioners herein.
This being the position, I am of the view that the impugned order should be set aside and the defendants / petitioners herein should be directed to file a written objection, if not already filed within two weeks hence and the learned Trial Judge should be directed to pass appropriate orders on the application under Section 151 of the C.P.C. afresh within a period of two months from date on hearing both the parties.
The revisional application succeeds. It is, therefore, allowed. The impugned order is hereby set aside. The defendants / petitioners herein may file a written objection, if not already filed, within a period of two weeks hence.
The learned Trial Judge is directed to pass appropriate orders on the application under Section 151 of the C.P.C. afresh upon hearing both the parties.
Considering the circumstances, there will be no order as to costs.
Urgent xerox certified copy, if applied for, be given to the learned counsel for the petitioner upon compliance of necessary formalities.
(Prasenjit Mandal. J.)