Calcutta High Court (Appellete Side)
Smt. Babli Bose & Ors vs Sri Sankar Prasad Dutta on 5 December, 2019
Author: Biswajit Basu
Bench: Biswajit Basu
1 (240) 05.12.2019
(p.j.) IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION CO No. 434 of 2019 Smt. Babli Bose & ors.
-versus-
Sri Sankar Prasad Dutta Mr. Prabir Adhya, ... for the petitioners.
Mr. Rabindra Nath Mahato, ... for the opposite party.
Affidavit of service filed in Court today be kept with the record. The revisional application under Article 227 of the Constitution of India is at the instance of the defendants in a suit for declaration of title and recovery of possession and is directed against the order dated January 16, 2019 passed by the learned Civil Judge (Senior Division), 2nd Court, Howrah in Title Suit No. 527 of 2017.
An ad interim order of injunction was passed in the suit at the instance of the plaintiff on January 04, 2018 by directing the parties to the suit to maintain status quo as regards the nature, character and possession of the suit scheduled property till January 19, 2018. The said ad interim order of injunction was extended time to time.
The plaintiff/opposite party filed an application under Section 151 of the Code praying that the said order may be implemented by police assistance on the allegation that the 2 defendants/petitioners in disregard to the said order of injunction has dismantled the existing wall of the suit property and are executing new construction over the suit property.
The learned Trial Judge by the order impugned has allowed the said application holding that it appears the defendants have been making construction over the schedule mentioned joint property in spite of the order of injunction dated January 04, 2018. The said finding of the learned Trial Judge does appear to be based on any material.
On perusal of the records it appears that the plaintiff in his application under Section 151 of the Code alleged that the petitioners are executing the construction work over the suit property and have dismantled the wall of the suit property in violation of the said order of injunction. The said allegations of the plaintiff have been denied by the defendants/petitioners in their written objection to the said application.
Admittedly, the plaintiff/opposite party has not yet initiated any proceeding under Order XXXIX Rule 2A of the Code alleging the violation of the said order of injunction.
No doubt that the order of injunction can be directed to be implemented by Police assistance under Section 151 of the Code but subject to a case of exceptional nature is being made warranting Police interference in a civil dispute. In the instant case, such case has neither been proved nor even been pleaded.
The learned Trial Judge should have insisted plaintiff for production of independent evidence in support of the allegation of alleged violation of the order of injunction, before directing the Police authority to implement the said ad-interim order of injunction. A party who has been favoured with an order of injunction is not entitled to get such assistance on mere asking.
That apart the order impugned lacks reasoning which even cannot be supplemented by this Court from the materials available on record.
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The order impugned for the aforesaid reasons is not sustainable and is accordingly set aside. CO 434 of 2019 is thus allowed. No order as to costs.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance of all requisite formalities.
(Biswajit Basu, J.)