Calcutta High Court (Appellete Side)
Smt. Punam Das vs Smt. Ashima Roy & Anr on 19 February, 2014
Author: Harish Tandon
Bench: Harish Tandon
1 19.02.2014
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Item No.46 C.O. No. 352 of 2014 Smt. Punam Das Versus Smt. Ashima Roy & Anr.
Mr. Uttam Bhattacharya, Mr. Asish Bhattacharya. ...For the Petitioner.
Mr. Anit Rakshit. ...For the opposite parties.
The plaintiff and the defendant purchased the respective portions of the property from a common vendor. Since the measurement of the plot purchased by both the parties were small, the parties entered into an agreement by which they agreed that while making the construction they will not leave the side space.
The plaintiff reap the benefit of the said agreement and made the construction at his plot of land without leaving the side space when the defendant's turn came, the plaintiff filed the instant suit for declaration that the defendants are obliged to leave the statutory side space and permanent injunction that no construction can be undertaken.
Admittedly, the plaintiff has not challenged the sanction plan issued by the concerned Municipality. The plaint and the injunction application are silent as to the agreement entered into between the parties, the benefit whereof was availed by the plaintiff.
The trial Court refused to pass an ad interim order of injunction. The appellate Court as it appears has proceeded merely on the ground that the plan sanctioned by the Municipality is contrary to law, even though the appellate Court records the existence of an agreement between the parties 2 but did not consider that a person who reap the benefit therefrom cannot turn around to say otherwise.
Furthermore, the injunction is a discretionary relief. The person who approached the Court seeking equitable relief must come with the clean hands. The suppression of material and the relevant facts is one of the factors when the Court refuses to pass ad interim order of injunction.
The appellate Court of appeal below, in my opinion, has proceeded to pass an order of injunction on extraneous considerations and therefore, the order impugned is not sustainable. The order impugned in this revisional application is hereby set aside.
Since the application for temporary injunction has not been disposed of as yet, the defendant‐petitioner is directed to file the opposition to the said injunction application within two weeks from the date. Reply, if any, be filed within a week thereafter.
The trial Court is requested to dispose of the application for temporary injunction within six weeks from date.
Needless to mention that consideration at the stage of ad interim order is different than the consideration at the stage of temporary injunction and therefore the trial Court shall not be swayed by the fact that this Court has set aside the order of injunction passed by the Court of appeal below and shall decide the application for injunction independently without being influenced by any of the observations made herein in accordance with law.
The revisional application is, thus, disposed of. There will be, however, no order as to costs.
Urgent photostat certified copy of this order be supplied to the parties, if applied for, on usual undertaking.
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( Harish Tandon, J. )