Calcutta High Court (Appellete Side)
Tarak Chandra Patra vs Ansuman Das & Ors on 16 May, 2017
Author: Mir Dara Sheko
Bench: Mir Dara Sheko
1 16.05.2017(23)
AKS C.O. No.3022 of 2016 Tarak Chandra Patra Vs. Ansuman Das & Ors.
Mr. Hiranmoy Bhattacharya Mr. Debanjan Das .... For the petitioner.
Mr. Partha Chakraborty Mr. Chayan Debnath ... For the opposite party no. 1.
Affidavit of service filed be kept on record.
Heard Mr. Bhattacharya, learned Advocate, being assisted by Mr. Das appearing on behalf of the petitioner and Mr. Chakraborty, learned Advocate, being assisted by Mr. Debnath representing the opposite party no. 1.
During course of hearing, it appears as an admitted situation that the petitioner is the recorded Bargadar in respect of the subject property and the pro forma opposite party nos. 2 to 4 as well are the owners of the same.
Mr. Chakraborty during course of hearing in his usual fairness, however, disclosed that the opposite party no. 1/defendant no.1 is the husband of the recorded owner of the subject property.
Mr. Bhattacharya, from the assertion in the plaint as well as the statement of the written statement filed by the opposite party no. 1 pointed out that there is nothing on record to show that even the wife of the opposite party no. 1 has got any ownership or right, title and interest over any part of the subject property. Mr. Chakraborty submitted that his wife has ownership in the subject property. Mr. Bhattacharya to meet the query of the court submitted that the opposite party no. 1 has been made as a party in the suit for permanent injunction filed by the petitioner asserting cause 2 of action basically against him as because the opposite party no. 1 was causing disturbance in exercising the right of Bargadar of the petitioner in the subject property. Criticizing the order impugned, submitted that the impugned application under Section 151 of the Code of Civil Procedure seeking police help was sought for on the cause of action as mentioned in paragraph 10 onwards of the application where it was alleged that by causing unlawful assembly the opposite parties being accompanied with their men encroached upon the suit property forcibly and took away the paddy therefrom but the learned trial court instead of appreciating the text of that application in proper perspective declined to render assistance through police help although the order of temporary injunction though the order of injunction is in force till disposal of the suit.
Mr. Chakraborty per contra submitted that the suit itself was only for permanent injunction and therefore anyone is not permitted rather cannot expect also final relief in the interim stage. Second limb of his submission is that on earlier two occasions, first on 23rd March, 2011 and secondly, on 3rd February, 2012 the similar prayers seeking police help as were sought for by the petitioner were declined and therefore the present prayer of the similar nature is not maintainable since it is barred by res judicata.
Since after being refused to get the order of police help on 23rd March, 2011, the said order was tested before this court in C.O. 3658 of 2011. A copy of said civil revision along with a copy of the written statement filed by only defendant no.1, i.e. opposite party no. 1 as supplied by the Mr. Charkaborty be kept on record for future reference.
From the pleadings however it is not yet available about ownership of the wife of opposite party no.1 in the suit property. However it is an admitted situation that the petitioner filed Title Suit No. 132 of 2010 in the court of learned Civil Judge (Junior Division), 2nd Court, Basirhat, 24- Parganas (North) for permanent injunction so that the opposite parties/defendants may be restrained 3 permanently from causing any obstruction in exercising his possession in the suit property as Bargadar. The pleadings go to show that there is no dispute as regard Bargadarship of the petitioner in respect of the subject plot. Therefore, learned trial court while disposing of the application for temporary injunction on 14/12/2010 allowed the same of course ex parte but without cost which would remain in force till disposal of the suit. This court has been apprised by the learned Advocates upon instruction that the said order of temporary injunction dated 14/12/2010 was neither altered nor modified nor set aside by any forum, meaning thereby, it has been subsisting and shall subsist till disposal of the suit.
Appreciating the submission of Mr. Chakraboty at one end, it can be accepted that the question of res judicata even at the interlocutory stage may be applicable, provided, the subsequent application as urged if is matched with the previous one identically, i.e. on the point of cause of action and relief sought for as were pleaded in previous application were adjudicated. In the instant case the first refusal order dated 23rd March, 2011 was assailed in C.O. 3658 of 2011 and since the grievance was lacking behind for want of any overt act, this court during disposal of the civil revision on 16/11/2011 had given opportunity to the petitioner to supplement his application by making additional affidavit within a period of "seven days from date", had there been any complaint of overt act requiring police help for implementation of the order of temporary injunction granted by the learned trial court. Learned trial court in the impugned order dated 11/07/2016 recorded its observation that the petitioner could not comply within the stipulated period to avail of the opportunity to supplement his application by any supported affidavit.
It is needless to mention that in the second application dated 3rd February, 2012 under Section 151 of the Code of Civil Procedure which was filed for the second time seeking police help was on alleged subsequent cause of action. However, the said application was also rejected. Now in 4 the third application which is the impugned one, there is specific averment that the opposite parties allegedly armed with weapons and accompanied with some persons of their camp took away the ripen paddy from the subject property which was planted by the petitioner. It was averred that a process of search warrant also was adopted before the court of learned Additional Chief Judicial Magistrate, Basirhat where the learned Additional Chief Judicial Magistrate had called for report. Be that as it may, the third application obviously has disclosed separate cause of action which is not identical to the alleged causes of action contained in the two earlier applications seeking police help. Therefore, though on earlier two occasions, the prayer of police help was declined on two different earlier consequences, which was of course within the judicial discretion of the learned trial court, but the argument as advanced by Mr. Chakraborty that the instant application vis-à-vis the revisional application should be held as barred by res judicata, cannot be accepted, since, the cause of auction as disclosed in the third application is absolutely un-identical to the previous two.
It is of course needless to mention that the relief of temporary injunction as granted by the learned trial court is an interim relief but equally this court is not unmindful to observe that the said interim relief shall subsist till disposal of the suit, if not modified or set aside or varied on any earlier occasion. Uptil now there is no order before this court by which it can be said that there was ever any attempt to get the said order of temporary injunction altered, varied, modified or set aside. Therefore, up to certain stage when one order of temporary injunction granted by a court of competent jurisdiction has been subsisting and shall persist either till disposal of the suit or until further order of the learned trial court, it is the bounden duty of the learned trial court protect the same and to implement the same so long it is subsisting and if necessary by rendering police help.
Though it is not very relevant but still since it is co-related the petitioner may have option to go for a separate proceeding under Order 39 Rule 2A of the Code. But that is the option, and not a 5 compulsion. Therefore, if a party has been enjoying the order of temporary injunction under reference, then it is the duty of the court to stretch appropriate relief if it is approached, so that, the order passed by the learned trial court be made honoured with all dignified compliance and to make it implemented learned trial court has the ample power to exercise its judicial discretion to go to any extent as available under law.
In view of the above observations, the order dated 11th July, 2016 passed by the learned trial court is set aside and quashed by which the police help was declined with virtually wrong approach, and the revisional application being C.O. 3022 of 2016 is accordingly allowed with direction to the learned trial court to record appropriate order on the application under Section 151 of Code of Civil Procedure under reference upon rehearing both sides and would not feel shy to implement its own order of temporary injunction, so long it exists provided learned trial court would be satisfied with complaint of over act, and to give priority to such nature of suit so that, for convenience of all purposes, the trial of the suit can be disposed of within a reasonable period as early as possible without grant of any unnecessary adjournment if by this time all other interlocutory stages have been exhausted, and, issues have been framed.
There will be no order as to costs.
Department is directed to communicate a copy of this order to the learned court below.
( Mir Dara Sheko, J.)