Calcutta High Court (Appellete Side)
Represented By Sri Biswajit Mal vs Shree Shree Mahaswar Shib Thakur And on 12 October, 2018
S/l. 12.10.
12. Bpg 2018 In the High Court at Calcutta Civil Revisional Jurisdiction C.O. No.96 of 2018 Bikihakola Purbapally Sarbajanin Durgatsab Committee of Bikihakola represented by Sri Biswajit Mal Versus Shree Shree Mahaswar Shib Thakur and Shree Lakshmi Janardhan Jew Thakur represented by Siddhartha & ors.
Mr. Debasish Roy.
...for the petitioner.
Mr. Hiranmay Bhattacharyya, Mr. Tanmay Mukherjee.
...for the plaintiff/opposite party no.1. The present challenge is against an appellate order setting aside an order passed by the trial court refusing injunction in favour of the plaintiff/opposite party no.1.
It is submitted by learned senior counsel appearing for the petitioner that the appellate court did not take into consideration a specific admission of the plaintiffs in their written objection to the petitioner's application under Order XXXIX Rule 4 of the Code of Civil Procedure, that the present petitioner, like other years, had already erected bamboo structure/pandal at its previous position at the Government vested property/land and thus the existence of the ad interim order of injunction of the court had helped the appellant/plaintiff to protect their suit property. On the strength of such purported admission, it is submitted that the petitioner has been continuing the performance of puja on a Government vested land. It is further argued that, subsequent to the passing of the impugned order, the petitioner has obtained certain documents which showed that the suit property had also vested in the Government.
Such contentions are controverted on behalf of the plaintiff/ opposite party no.1, the contesting opposite party herein. Learned counsel for the opposite party no. l submits the purported "admission" is not an admission in reality, in the context of the averments made in the application under Order XXXIX Rule 4 of the Code of Civil Procedure. It was averred in the vacating application that the present petitioner had been celebrating Durga Puja on the plot in question. It had further been stated in such application that the defendant no.1/the present petitioner and its office- bearers undertook to hold, perform and celebrate Durga Puja on the suit property in the next year and that the court below would be pleased to permit the defendant no.1 to hold and celebrate Durga Puja that year on the suit property by a modification of the initial ad interim order passed.
It is submitted that, as such, the petitioner was bound by its own undertaking that it would not perform puja on the suit property in future.
On hearing both sides, it appears that the appellate court gave sufficient reasons for passing the impugned order and as such the same ought not to be interfered with. It is further evident that the alleged admission of the plaintiff/opposite party no.1 cannot qualify as an admission worth the name, since the same was made in a particular context and did not unambiguously aver that the present petitioner had been performing puja on the suit property itself. The question raised by the petitioner in the present revision, as to the suit property itself being vested, was never raised before either of the courts below previously. However, that does not preclude the petitioner from raising such question in the trial court at the hearing of the injunction application as well as of the suit.
Accordingly, C.O. No.96 of 2018 is disposed of without interfering with the impugned order, directing the plaintiff to file its written objection to the injunction application pending in connection with Title Suit No.951 of 2017 within one week from the date of reopening of the trial court after the oncoming annual vacation. The petitioner will file affidavit-in-reply, if any, within one week thereafter. The trial court is requested to dispose of the injunction application pending before it positively within one working month after the reopening of the said Court after the oncoming annual vacation.
There will be no order as to costs.
Urgent certified website copies of this order, if applied for, be given to the parties upon compliance of all necessary requisite formalities.
(Sabyasachi Bhattacharyya, J. )