Calcutta High Court (Appellete Side)
Ziaul Haque vs Narul Islam & Ors on 15 March, 2011
Author: Prasenjit Mandal
Bench: Prasenjit Mandal
1
Form No.J(2) IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
C.O. No. 456 of 2011
Present :
The Hon'ble Mr. Justice Prasenjit Mandal
Ziaul Haque.
Versus
Narul Islam & Ors.
For the petitioner: Mr. J. R. Chatterjee,
Mr. Arup Banerjee,
Mr. Kaushik Dey.
For the opposite parties: Mr. Shyamal Chakraborty,
Mr. Abdullah Rahamani,
Mr. Kamal Jahiruzzaman.
Heard On: 17.02.2011.
Judgement On: March 15, 2011.
Prasenjit Mandal, J.: This application is at the instance of the
defendant/respondent and is directed against the order no.9 dated
February 4, 2011 passed by the learned Additional District Judge, Seventh Court, Alipore in Misc. Appeal No.625 of 2010 thereby directing for demolition of the boundary wall alleged to have been constructed by the defendant/respondent/petitioner herein.
The short fact is that the plaintiffs /appellants/opposite parties instituted a suit being Title Suit No.106 of 2010 before 2 the learned Civil Judge (Senior Division), Alipore against the petitioner praying for pre-emption under the Mohammedan Law, injunction and other reliefs. The petitioner is contesting the said application. At the time of filing of the said suit by the plaintiffs, they filed an application for temporary injunction and the learned Trial Judge did not grant any ad interim injunction as prayed for. The plaintiffs / opposite party filed a misc. appeal being Misc. Appeal No.625 of 2010 before the learned District Judge and at that time, they moved an application for ad interim injunction. The learned District Judge granted ad interim order of injunction and thereafter the said misc. appeal was transferred to the court of the learned Additional District Judge, Seventh Court, Alipore. The plaintiffs contended that in spite of order of injunction passed by the learned District Judge, the defendant/petitioner in violation of the said order, demolished the construction of the plaintiffs' boundary wall, structures of the plaintiff, etc. and they raised a new boundary wall. For that reason, the plaintiffs filed an application for violation of the order of injunction under Order 39 Rule 2A of the C.P.C. and that misc. case is now pending. They filed another application under Section 151 of the C.P.C. for restoring possession after dismantling wall constructed by the defendant/petitioner. That application was allowed. It has also been directed that the petitioners are at liberty to see police assistance for 3 dismantling the said wall, if required. Being aggrieved by such orders, this application has been preferred.
Now, the question is whether the learned Trial Judge is justified in passing the impugned order.
Upon hearing the learned counsel for the parties and on going through the materials on record, I find that the plaintiffs instituted a title suit being Title Suit No.106 of 2010 against the petitioner for pre-emption under the Mohammedan law, injunction and other reliefs before the learned Civil Judge (Senior Division), Alipore. The learned Trial Judge rejected the prayer for ad interim order of injunction as prayed for by the plaintiffs. Thereafter, the plaintiffs filed a misc. appeal being Misc. Appeal No.625 of 2010 before the learned District Judge and an ad interim order of injunction was granted on December 7, 2010. It is contended that in violation of the said order, the petitioner had demolished the asbestos shed of the plaintiffs, their boundary wall and reconstructed another boundary wall. The plaintiffs filed a contempt application under Order 39 Rule 2A of the C.P.C. and it is pending. They filed another application under Section 151 of the C.P.C. for restoration of the possession after breaking open the newly constructed wall by the defendant/petitioner herein.
So far as grant of injunction by the learned District Judge, it is undisputed. The plaintiffs have categorically stated that 4 they were in possession of the premises in suit and on December 21, 2010, the defendant/petitioner violated the said order and made alleged construction. From the facts and circumstances of the case, I find that immediately thereafter the plaintiffs filed the said application for violation of the order of injunction under Order 39 Rule 2A of the C.P.C. They also filed an application under Section 151 of the C.P.C. for restoration of their possession. The defendant could not show that he had possession over the suit property. But, I find that he attempted to take control over the property in suit by filing a writ petition being W.P. No.23643(W) of 2010 which was dismissed by this Hon'ble Court. Thereafter, he filed another application under Section 144(2) of the Code of Criminal Procedure on November 30, 2010. Thereafter, the learned District Judge granted the injunction on December 7, 2010. Thereafter, it is alleged by the plaintiffs that the defendant had violated the order of status quo on December 21, 2010 and on December 23, 2010. Then the local police station and the Superintendent of Police were informed of the fact. No doubt, as per decision of the Apex Court particularly in 2007 (2) Supreme today 936, the Civil Court is empowered to pas appropriate orders of mandatory injunction under Section 151 of the C.P.C. if the situation demands. But, before taking any action in this regard, I am of the view that there must be a clear finding of violation of the impugned order. 5
Since the learned Additional District Judge has not come to a clear finding on the basis of any evidence on record and the proceeding under Order 39 Rule 2A of the C.P.C. is yet to be disposed of on the basis of evidence to be recorded, I am of the opinion that the learned Additional District Judge was not justified at all in passing orders of dismantling the said wall. The impugned order cannot be supported at all. The learned lower appellate Court has committed material irregularity in passing the impugned order..
The revisional application, therefore, succeeds. It is allowed. The impugned order is hereby set aside. The learned Additional District Judge is directed to dispose of the proceeding under Order 39 Rule 2A of the C.P.C. within three months from the date of communication of this order.
Considering the circumstances, there will be no order as to costs.
Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.
(Prasenjit Mandal, J.)