Calcutta High Court (Appellete Side)
Sri Gouri Shanker Arya vs Sri Babulal Arya & Ors on 7 August, 2023
Author: Shampa Sarkar
Bench: Shampa Sarkar
07.08.2023
Sl. No.175(ML)
srm
C.O. No. 1336 of 2023
Sri Gouri Shanker Arya
Versus
Sri Babulal Arya & Ors.
Mr. Partha Pratim Roy,
Ms. Sudeshna Basu Thakur
...for the Petitioner.
The revisional application has been filed by the plaintiff
in Title Suit No.1789 of 2022, which is pending before the
learned Civil Judge (Senior Division), 1st Court at Alipore,
South 24-Parganas. The petitioner has challenged the order
dated February 7, 2023 passed in Misc. Appeal No.13 of 2023
by the learned District Judge at Alipore, South 24-Parganas.
The learned lower appellate court refused the prayer for
ad interim injunction made by the plaintiff/petitioner, in a suit
for partition.
The misc. appeal was filed by the petitioner, being
aggrieved by an order passed by the learned trial judge
refusing the petitioner's prayer for ad interim injunction. The
learned trial court found that the petitioner was already in
possession of the suit property. That the defendant Nos.1 to 5
were claiming ownership on the basis of an arbitral award.
2
The petitioner urged before the learned court that the arbitral
award was a nullity as the petitioner was not a party, and
could not contest the proceeding. He was a minor. The learned
court also found that eviction suits were filed in 2003 and 2014,
but the plaintiff did not take adequate measures to protect his
right, title and interest in respect of the property in question. It
also appears from the averments in the plaint that the
petitioner was paying rent to the defendant Nos.1 to 5 in
respect of the schedule property. As such, the mere
apprehension of the plaintiff/petitioner that the
defendants/opposite parties would part with the property was,
prima facie, found to be unconvincing as the petitioner did not
produce any documents in support of such contentions.
Aggrieved by such order, the plaintiff approached the
learned lower appellate court. The learned lower appellate
court found that as there was an issue with regard to the rights
of the plaintiff and the defendants in respect of an alleged
coparcenary property and all of them claim through late
Prabhu Dayal Arya, an ad interim injunction could not be
passed, without hearing all the parties. The learned lower
appellate court rejected such prayer and directed notice be
issued.
Upon perusing the plaint, the factual findings of the
learned trial Judge and those of the learned lower appellate
3
court, this Court is of the view that prima facie case, balance of
convenience and inconvenience does not warrant an ex parte
ad interim order of injunction. The plaintiff/petitioner was
found to be in possession. Hence, an ex parte injunction upon
the defendants, without proper documents indicating that they
were trying to either sell or change the nature and character of
the property, behind the back of the plaintiff, would not be
justified. I hold that the learned courts rightly rejected the
prayer for ad interim injunction. The learned courts below did
not accept the submission of the plaintiff that the defendant
Nos.1 to 5 were chalking out a sinister plan or a design, to
dispossess the plaintiff. However, such issue shall be decided
upon hearing the parties.
The learned court of appeal below is directed to dispose
of the Misc. appeal along with the pending application within
a period of two months from service of notice of appeal upon
the respondents. The learned lower appellate court will
proceed independently and the observations made hereinabove, shall not influence the learned lower appellate court, in any manner.
All the points raised in the revisional application shall be available to the petitioner to urge before the learned lower appellate court.
The revisional application is, thus, dismissed. 4 There will be, however, no order as to costs. Parties are to act on the basis of the server copy of this order.
(Shampa Sarkar, J.)