Calcutta High Court (Appellete Side)
Lakjan Bibi & Ors vs Idris Ali & Ors on 10 August, 2015
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Jyotirmay Bhattacharya
AND
The Hon'ble Justice Debi Prosad Dey
F.M.A. 2446 of 2015
(CAN 5386 of 2015)
Lakjan Bibi & Ors.
-Vs-
Idris Ali & Ors.
For the Appellants : Mr. Partha Pratim Roy,
Mr. Md. Y. Mondal
For the Respondent No. 1 : Mr. Md. Farhaduddin
Heard on : 10.08.2015 Judgement on: 10.08.2015 Jyotirmay Bhattacharya, J. :-
This first miscellaneous appeal is directed against an order being No. 2 dated 25th March, 2015 passed by the learned Civil Judge (Senior Division), 1st Court, Barasat in Title Suit No. 454 of 2015 at the instance of the defendant Nos. 1 to 8/appellants.
By the impugned order, the parties were directed to maintain status quo in respect of a suit property till 24th April, 2015. Such ad-interim order of injunction for maintaining status quo was passed by the learned Trial Judge in a suit for partition. The plaintiff filed an application for interim injunction in the said partition suit by alleging that the defendants are trying to build up construction on the suit property. The learned Trial Judge was of the prima facie view that for maintaining status quo with regard to the suit property, such injunction should passed. Accordingly, ad-interim order was passed.
The legality and/or propriety of the said order is under challenge in the said appeal at instance of the defendant Nos. 1 to 8.
Mr. Partha Pratim Roy, learned Advocate appearing for the appellants submits that the plaintiff has a nominal share in the suit property. He submits that injunction cannot be granted for restraining the major shareholders from raising any construction in the suit property. Mr. Roy further submits that having regard to the fact that construction has already commenced and has also substantially progressed, the learned Trial Judge ought not to have passed an ad-interim order of injunction in the said suit.
We find no substance in such contention of Mr. Roy, learned Advocate for the appellants.
Admittedly, the suit property still remains joint. Whatever insignificant share the plaintiff has in the suit property, he can maintain a suit for partition for partition of the suit property. In fact he has done so by filing the partition suit in the instant case. So long as the property remains joint, no shareholder has any right to change the nature and character of the suit property. If any shareholder is allowed to change the nature and character of the suit property, ultimately the relief which the co-sharers deserve in the said partition suit, may not be ultimately granted to them.
Under such circumstances, we hold that the learned Trial Judge did not commit any illegality by passing an ad-interim order of injunction particularly when the plaintiff has not been able to approve that he has commenced the work of construction and the construction has progressed substantially before filing of the suit. Though a photograph showing such construction has been produced before us, we cannot take cognizance of that photograph in the absence of the necessary pleadings in the stay application. Accordingly, we do not find any merit in this appeal. Leave is granted to the defendants/appellants and/or the other defendants in the said suit to file objection against the plaintiff's application for interim injunction within two weeks from date. Counter objection, if any, be filed by the plaintiff within a week thereafter. The learned Trial Judge is requested to dispose of the plaintiff's application for temporary injunction as early as possible without granting any unnecessary adjournment to any of the parties.
It is made clear that the observations which are made hereinabove are made by this court only for the purpose of disposal of the appeal. As such, the learned Trial Judge, while deciding the plaintiff's application for temporary injunction, will be absolutely free to decide the plaintiff's application for temporary injunction on its own merit, after considering the pleadings of the respective parties and in accordance with law without being influenced by any of the observations made hereinabove.
The appeal is thus disposed of.
Re : C.A.N. 5386 of 2015 In view of disposal of the appeal in the manner as aforesaid, no further order is required to be passed in the interlocutory application.
The said application is also deemed to be disposed of. Urgent Photostat certified copy of this order, if applied for, be supplied to the parties as early as possible.
[JYOTIRMAY BHATTACHARYA, J.] [DEBI PROSAD DEY, J.] akd