Calcutta High Court (Appellete Side)
Sikha Shaw & Ors vs Madhusudan Das & Anr on 14 January, 2020
Author: Shampa Sarkar
Bench: Shampa Sarkar
1
M/L 13
14.01.2020
Ct. No. 19
GB
C.O. 3638 of 2019
Sikha Shaw & Ors.
Vs.
Madhusudan Das & Anr.
Mr. Siva Prasad Ghosh.
... for Petitioner.
Mr. Ayan Banerjee,
Mr. Suman Banerjee.
.... for Opposite Party No.1.
Mr. Subir Sanyal,
Mr. Ratul Biswas.
... for Proforma Respondents.
The petitioners are the defendant nos.1, 3, 4 and 5 in Title Suit No.603 of 2019 which is pending before the learned Civil Judge (Senior Division), 2nd Court at Barasat.
The opposite party no.1 as plaintiff has filed a suit for declaration and permanent injunction against the petitioners as also the developer who is the defendant no.2 in the said suit. All the parties are represented before this Court and by consent of the parties the matter is taken up for final hearing.
It was the contention of the plaintiff that by undue influence and fraud practised upon the mother of the plaintiff as also the defendants/petitioners, the mother was coerced to execute a deed of gift in favour of the defendant no.1/petitioner no.1. Thereafter a development agreement was executed by defendant no.1 with the defendant no.2, that is the developer. Challenging such deed of gift the suit was filed and the prayer for ad interim injunction was made before the learned Civil Judge (Senior Division), 2nd Court at Barasat. An ex parte ad interim order of injunction was granted directing the parties to maintain status quo with respect to the existing nature, character and possession of the suit property. The petitioners filed an appeal against the order granting ad interim injunction dated August 21, 2019 being Miscellaneous Appeal No.123 of 2019 before the learned Additional District Judge at Barasat. By order dated October 1, 2019 the learned lower appellate court, that is the Additional District Judge, Fast Track, Court No.5, Barasat rejected the application filed by the petitioners for stay of operation of the order dated August 21, 2019 and fixed the miscellaneous appeal for final hearing. 2 Aggrieved, the petitioners have approached this Court by filing this revisional application. The learned lower appellate court rejected the application for stay on the ground that the appellants/petitioners had already filed an application under Order XXXIX, Rule 4 of the Code of Civil Procedure for variation and/or vacating of the ad interim order and as such parallel proceeding could not continue.
It is submitted on behalf of the petitioners that the learned Additional District Judge, Fast Track, Court No.5, Barasat failed to exercise its jurisdiction as vested under the law and should have interfered with the order impugned by granting an interim stay upon consideration of the irreparable loss and injury as also upon consideration of the fact that the plaintiff did not have a prima facie case to go to trial.
Mr. Banerjee submits that if an ad interim stay was granted by the learned court below, the same would amount to allowing the main relief in the appeal and as such the learned court below rightly fixed another day for hearing of the miscellaneous appeal without considering the prayer for stay.
Mr. Sanyal submits on behalf of the developer that the development work had just commenced on the property and the plot was in a precarious condition and as such the application for temporary injunction should be disposed of expeditiously.
Having heard the contentions of the respective parties, in my view, justice would be sub-served if the learned trial judge, that is the learned Civil Judge (Senior Division), 2nd Court at Barasat is directed to dispose of the application for temporary injunction along with the application under Order XXXIX, Rule 4 of the Code of Civil Procedure as expeditiously as possible preferably within a period of two months from the date of communication of this order. If written objections have not been filed to the respective applications then the parties will be at liberty to file their written objections within ten days from date. The time period fixed for hearing should be treated as peremptory in nature. As nothing remains to be decided in the miscellaneous appeal, the Miscellaneous appeal No. 123 of 2019 is disposed of. If the LCR has been received by the lower appellate court, the same be sent down to the learned trial court immediately. It is clarified that the observations made by the learned lower appellate court will not influence the learned trial judge while disposing of the application for temporary injunction.
The revisional application is disposed of.
There will be, however, no order as to costs.
3Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis.
(Shampa Sarkar, J.)