Calcutta High Court (Appellete Side)
Sri Sakti Nath Mukherjee & Anr vs Sri Sachindra Nath Ballav & Ors on 28 November, 2016
Author: Ashis Kumar Chakraborty
Bench: Ashis Kumar Chakraborty
1
In The High Court At Calcutta
28-11-2016 Civil Revisional Jurisdiction
sh-7
.
CO 3951 of 2016 Sri Sakti Nath Mukherjee & Anr.
v.
Sri Sachindra Nath Ballav & Ors.
Mr. Debjit Mukherjee Ms. Susmita Chatterjee Ms. Dipanwita Ganguly ... for the petitioners.
Mr. Shyamal Majumdar Mr. Prafulla Kumar Banerjee ... for the respondents.
This revisional application is directed against the order dated September 28,2016 passed by the learned Additional District Judge, Fast Track Court, Serampore in Misc. Case No. 3 of 2015. By the impugned order the learned appellate Court below refused to pass an ad interim order of injunction as prayed by the petitioners, being applicants in Misc. Case No. 3 of 2015.
The petitioners filed the Title Suit No. 257 of 1996 against the opposite parties, before the learned Civil Judge(Junior Division), 1st Court at Serampore claiming a declaration of their title in respect of the 2 suit property and a decree for permanent injunction restraining the opposite parties from interfering with their possession in respect of the suit property. On August 22, 2006 the learned trial Judge dismissed the said suit. Feeling aggrieved by the said judgment and decree passed by the learned trial Judge the petitioners carried the same in appeal, being Title Appeal No. 207 of 2006 before the learned District Judge, Hooghly. The said appeal was admitted. It is the case of the petitioners that without serving any notice on them, the said appeal was transferred to the Court of the learned Additional District Judge, Fast Track Court, Serampore. Since the petitioners were not aware of the transfer of the appeal to the learned appellate Court below at Serampore, on February 2,2015 when the appeal was fixed for hearing they could not appear before the learned appellate Court below and the said appeal was dismissed. The petitioners filed an application under Order XLI Rule 19 of the Code of Civil Procedure, 1908 before the learned appellate Court below for readmission of the said appeal and such application is pending before the learned Court below. The petitioners also filed an application under Order XXXIX Rules 1 and 3 of the Code praying for, an order of injunction restraining the opposite parties from, inter alia, changing the nature and character of the suit property and by the impugned order the learned Court below refused to pass an ad interim order of injunction as prayed for by the petitioners.
As directed by this Court on October 5,2016 the petitioners 3 have served copies of this application on the opposite parties and Mr. Shyamal Majumdar, learned advocate appeared for them.
Mr. Debjit Mukherjee, learned advocate appearing for the petitioners submitted that apart from pendency of the above application filed by the petitioners under Order XLI Rule 19 of the Code, the opposite parties have also filed the eviction suit, being Title(Ejectment) Suit No. 604 of 2015 claiming the eviction of the petitioners from the suit property and in the said suit the opposite parties have admitted that the petitioners are in possession of the suit property.
However, Mr. Majumdar appearing for the opposite parties submitted that the petitioners are in illegal possession of the suit property and as such they are not entitled to any interim order to protect their possession in respect of the suit property. He prayed for dismissal of the revisional application.
I have considered the materials on record, as well as the submissions made by the learned advocates representing the respective parties. In the facts of the present case, it is evident that the opposite parties have filed the aforementioned ejectment suit, being Title (Ejectment) Suit No. 604 of 2015, pending before the learned Civil Judge ( Junior Division), Fast Track Court at Serampore and in the application filed in the ejectment suit they have admitted that the petitioners to be in possession of the suit property. Further, the application filed by the petitioners under Order XLI Rule 19 of the 4 Code, for readmission of the appeal, being Title Appeal No. 207 of 2006 is also pending before the learned appellate Court below.
In these facts, I find that the petitioners are entitled to protect their possession in respect of the suit property till the disposal of the Misc. Case No. 3 of 2015 pending before the learned Additional District Judge, Fast Track Court, Serampore.
Accordingly, there shall be an interim order restraining the opposite parties from interfering with the possession of the petitioners in respect of the suit property, till the disposal of the application, being Misc. Case No. 3 of 2015 by the learned first appellate Court below.
The learned appellate Court below is requested to dispose of the application filed by the petitioners under Order 41 Rule 19 of the Code of Civil Procedure, 1908 as expeditiously as possible, preferably within January 31,2017.
With the above directions, the revisional application, being CO 3951 of 2016 stands disposed of. However, there shall be no order as to costs.
Certified website copies of the order, if applied for, be urgently made available to the petitioner, subject to compliance with all requisite formalities.
(Ashis Kumar Chakraborty, J) 5