Calcutta High Court (Appellete Side)
Pintu Modak vs Hemanta Paul & Ors on 12 August, 2020
Author: Subhasis Dasgupta
Bench: Subhasis Dasgupta
1 12.08.2020
Item No.1 Ct. No.19 CHC C.O.1144 of 2020 with C.A.N.3971 of 2020 (Via Video Conference) r Pintu Modak Vs. Hemanta Paul & ors.
Mrs. Sulekha Mitra, Mr. Manas Kumar Das ...for the petitioner Mr. Soumik Ganguly ...for the o.p. no.1 The impugned orders being no.2 dated 2.7.2019 and order no.14 dated 27th September, 2019 as well as order no.17 dated 12th December, 2019 passed by the Learned District Judge, Bankura in Misc.Appeal no.11 of 2019 are under challenge.
The petitioner is the defendant no.1 in a suit instituted by plaintiff being Title Suit No.152 of 2019 in the court of Learned Civil Judge (Junior Division), 1st Court, Bankura praying for declaration and injunction. In such suit, the purchased deeds of defendant nos.1 and 8 were alleged to be fraudulently manufactured, illegally obtained by deceitful means. Since 2 defendants on the strength of purchased deeds started raising construction in the prime portion of the property, the plaintiffs instituted the aforementioned suit with a specific plea challenging the title of the defendants, said to be derived from their purchased deeds. The trial Court refused to grant ad interim injunction dissatisfying with the prima facie case and also rejected the prayer for local inspection.
An appeal was preferred against the impugned order of rejection of ad interim injunction before the learned District Judge, Bankura in connection with Misc.Appeal No.11 of 2019, and the First Lower Appellate Court upon consideration of the prima facie case together with the other parameters and bearing in mind the 1/3rd share of the appellants in unpartitioned property, granted status quo directing both party to maintain the same. There was specific observation of the Appellate Court that the entire property could not yet be partitioned by way of metes and bounds between the co-sharers. If the valuable portion of the property is used in the matter of raising constructions, there is chance of causing encroachment in the joint property, which would cause irreparable loss and injury to the other parties opposing the construction. By another order dated 27th September, 2019, the prayer for local inspection was also allowed 3 by the First Lower Appellate Court, which was also rejected by the trial court.
The commission work has already been held and Ld. Commissioner has submitted his report on 12th December, 2019. There is a specific direction given by the Court to file written objection, if there by any, against the submission of the learned Commissioner's report.
Learned advocate for the petitioner submits adverting to the order, passed by co-ordinate Bench of this Court in C.O. No.1419 of 2015 that there has been complete suppression of material facts and making complete material suppression of the facts, the order of injunction has been obtained from the First Lower Appellate Court.
Learned advocate for the opposite party no.1 raises objection submitting that after due appraisal of the materials available before the First Appellate Court, the order of status quo was recorded in this case directing both parties to maintain so that the integrity of the unpartitioned property is maintained.
Learned advocate for the opposite party specifically denies the suppression, alleged to have been made, while obtaining the prayer for ad interim injunction from First Lower Appellate Court. Assuming for a moment that there has been suppression of facts, but there is specific provision provided in 4 the CPC for making modification and/or alteration of ad interim order of injunction granted by a court of law.
The petitioner is at liberty to make exercise of his power of resorting to that statutory relief provided under Order 39 Rule 4 CPC. Since there is specific remedy available in the Code of Civil Procedure, the Court is of the view that in absence of any apparent perversity in the order, discernable from the orders impugned, this Court should not exercise its Constitutional Authority under Article 227 of the Constitution of India. .
Liberty is, however, given to the petitioner to approach to the First Appellate Court with a prayer for modification of the ad interim order of injunction supported by documents to make out the alleged suppression. If any petition is filed for modification or alteration of the order under Order 39 Rule 4 of the CPC, the First Appellate Court would address to the points raised in the petition, and would take a reasonable approach to decide the issue so that nobody is put to suffer unnecessary injunction despite a good grounds in their respective favour.
Learned First Appellate Court is further directed to dispose of the pending Misc.Appeal in an expeditious manner providing sufficient opportunity of hearing to both the parties, if the appeal is otherwise made ready for hearing. 5 With this observation the revisional application being C.O.1144 of 2020 with C.A.N.3971 of 2020 is disposed of.
(Subhasis Dasgupta, J.)