Calcutta High Court (Appellete Side)
Ac Kasem Sarkar & Ors vs Md. Asadul Haque on 11 January, 2012
Author: Harish Tandon
Bench: Harish Tandon
1 Sl/ 11.01.12 C.O. 1423 of 2010 7 ac Kasem Sarkar & Ors
-vs-
Md. Asadul Haque Mr. Jiban Ratan Chatterjee Mr. Partha Pratim Roy ... For Petitioners In spite of service, none appears on behalf of the opposite party. Affidavit-of-service filed today be kept with the record.
This revisional application is directed against Order No. 48 dated 7th December 2009 passed by the Civil Judge, (Junior Division), Nabadwip, Nadia, in Title Suit No. 77 of 2005 by which an application under Section 151 of the Code of Civil Procedure was rejected.
In a suit for declaration of title and permanent injunction, an application for temporary injunction was filed by the plaintiff/opposite party, which was disposed of by directing the parties to maintain status quo in respect of 'B' schedule property.
It is apparent from the revisional application that prior to passing of the order of status quo, an inspection was made by appointing a Commissioner wherein no construction was shown to have been made in 'B' schedule property. Subsequently, another Commissioner was appointed who held inspection of the 'B' schedule property and it appears from the report filed by the Commissioner that the Anchal Panchayat has constructed a toilet on the 'B' schedule property.
Subsequently, an application under Section 151 of the Code of Civil Procedure is taken out by the 2 defendants/petitioners wherein it is alleged that between the period from the first commission work and the second commission work the plaintiffs/opposite parties have, in gross violation of the order of status quo, raised a bathroom C.O. 1423 of 2010 and a toilet on the 'B' schedule property.
It is a specific stand of the plaintiff/opposite party that the 'B' schedule property is a public pathway and the Anchal Panchayat has constructed a toilet for the benefit of the public and has thus denied the allegation of the defendants/petitioners that he is responsible for construction of the said toilet.
While rejecting the said application, the trial Court observed that it is uncertain whether the said construction is made after the order of status quo or whether the plaintiff/opposite party is responsible for such construction. Although this Court finds that the reason given by the trial Court is not supportable but the conclusion arrived at by the trial Court cannot be faulted with.
Mr. Chatterjee, learned Senior Advocate, strenuously submitted that the Court has ample power to remove the construction, if raised in violation of an order of injunction, by invoking Section 151 of the Civil Procedure Code and places reliance upon a Division Bench judgment in the case of Sujit Pal -vs- Prabir Kumar Sun & Others, reported in AIR 1986 Calcutta 220. It has been laid down therein that technicalities cannot stand in the way of rendering justice between the parties. It has further held that the process, enshrined under Order 39 Rule 2A of the Code of Civil Procedure, may not ultimately be effective as it does 3 not provide for granting an immediate relief to the party which can be granted only by the Court in exercise of its inherent power.
There could be no dispute to such proposition that the Court has ample power to pass an order for demolition of the construction made by the parties to the suit during subsistence of an injunction order. By invoking inherent power, as enshrined under Section 151 of the Civil Procedure Code, Court cannot pass an order of demolition if C.O. 1423 of 2010 such alleged construction is made by any person other than a party to the suit. A third party to the suit has a right to be heard before an order of demolition of a construction is made by the Court.
Order 39 Rule 2A of the Civil Procedure Code contemplates a situation where disobedience of an injunction granted by the Court is alleged to have been violated by the person, who is otherwise found guilty for such disobedience, Court may pass an order to detain such person in civil prison or his property can be attached. Therefore, the said provision does not envisage that the person denotes a party to a suit but a third party as well who is found guilty of disobedience of an order of injunction. Any restricted meaning attributed to the said provision would negate the purpose and intent of the legislature.
Court, while considering the matter where third party is found guilty of disobedience of an injunction order under Order 39 Rule 2A of the Code of Civil Procedure, is not denuded to invoke the inherent power for demolition of the construction made during pendency of an injunction order as 4 the said provision, contained under Order 39 Rule 2A of the Code of Civil Procedure, provides attachment of property and/or detention in civil prison.
Admittedly, in the instant case, the Commissioner, during second inspection, categorically
recorded that the construction is made by the Anchal Panchayat, which is corroborated by the statement of the plaintiff/opposite party in his opposition. Since, invokation of Section 151 of the Code of Civil Procedure against a third is not permissible the impugned order cannot be faulted with.
In such view of the matter, I do not find any illegality and/or infirmity in the ultimate decision of the trial Court. However, the rejection of an application under C.O. 1423 of 2010 Section 151 of the Civil Procedure Code filed by the petitioners shall not preclude them from taking appropriate steps for alleged violation of the order of status quo.
For abundant precaution it is hereby made clear that the observation made in this order is restricted to the application under Section 151 of the Civil Procedure Code filed by the petitioners and shall not have any bearing at the time of disposal of any other application or proceeding initiated by the petitioners.
The revisional application is, therefore, dismissed. However, there will be no order as to costs.
Urgent photostat certified copy be supplied to the parties, if applied for, on priority basis.
(Harish Tandon, J.)