Calcutta High Court (Appellete Side)
Sanjay Das & Ors vs Chairman In Council & Board Of Council on 3 April, 2017
Author: Mir Dara Sheko
Bench: Mir Dara Sheko
1 03.04.2017(38)
AKS C.O. No. 747 of 2016.
Sanjay Das & Ors.
Vs. Chairman in Council & Board of Council Baranagar Municipality & Anr.
Mr. Sukanta Chakraborty Mr. Sakabda Roy ... for the petitioners.
The application under Article 227 of the Constitution of India has been filed assailing the judgement dated 17th November, 2015 passed by the learned Additional District Judge, 1st Court, Barrackpore within the District of North 24-Parganas in Misc. Appeal no. 45 of 2010 by which the order dated 5th April, 2010 passed by the learned Civil Judge (Junior Ddivision), 3rd Court, Sealdah in Title Suit No. 181 of 1999 ( Madhuri Das & Ors. Vs. Board of Councillors) was affirmed by dismissing the Misc. Appeal.
Heard Mr. Chakraborty, learned Advocate, representing the petitioners. Though usually direction for notice upon the other side is passed before taking up the matter for hearing on merit but considering the very tenor of the order impugned and upon hearing the learned Advocate for the petitioners, this court does not feel any necessity to issue direction for service of notice upon the other side. Therefore, service of notice is dispensed with.
In the application for temporary injunction the very prayer as incorporated in paragraph 8 is set out :
"That in the circumstances, it is therefore necessary for ends of justice and equity that the defendant and his officers and Councillors should be restrained by an order of temporary injunction with an ad-interim rule thereof from striking, deleting the names of the Plaintiffs/Petitioners from the Assessment Registrar/Roll as owner Assessee in respect of the holding/Premises and also directing them to take immediate steps towards sub-division of the premises/holding of the mother Schedule 'A' property according Schedule 'B' and 'C' below."
Learned court during consideration of the application for temporary injunction finally allowed the application under Order 39 Rule 4 of the Code of Civil Procedure by vacating the order of interim injunction.
Being aggrieved Misc. Appeal No. 45 of 2010 was preferred by the petitioners. Learned First Appellate Court upon hearing and also examining the fact in details, considering also the ingredients of the temporary injunction for passing order on either way dismissed the Misc. Appeal on contest affirming the order of the learned trial court.
2It is obvious that the order of temporary injunction is discretionary in nature. Grant or its refusal depends upon the prima facie case, balance of convenience, irreparable loss of injury on which the attending circumstances are being weighed by the court dealing with the matter. When the suit itself is for permanent injunction and mandatory injunction and despite the nature of such suit, both the courts ultimately had decided not to put any order of injunction of temporary nature as was sought for, rather, when the learned trial court had vacated the order of interim injunction considering the prayer of the opposite parties under Order 39 Rule 4 of the Code of Civil Procedure and said order when again on contest was reconsidered by the First Appellate Court and affirmed, this court does not find any lapses or procedural defect in such decision-making process. Because in view of the nature of the suit if ultimately the petitioners can get success, then they shall be at liberty to enjoy its usufructs as well, but, they are not permitted now to get either of the orders impugned altered in view of the observations made above.
The application therefore stands dismissed at the instance of the learned Advocate for the petitioners.
Department is directed to communicate a copy of this order to the learned trial court to proceed with the suit for its expeditious disposal without granting any unnecessary adjournments to either of the parties.
Be it noted that the said order, if any passed by this court in respect of further proceeding of the suit, stands vacated.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties on priority basis.
( Mir Dara Sheko, J.)