Sunday, March 26, 2023

Misc appeal challenging the order of injunction / Civil Court / Civil Suit / Civil

 

District : South 24 Parganas

In the Court of the Learned Civil Judge (Senior Division), Baruipur, South 24 Parganas

 

Misc. Appeal no.                 of 2023

Arising out of

Title Suit no. 147 of 2023

 

                                                     In the matter of ;

Sri Sujit Saha, Son of Late Amar Chandra Saha, aged about 56 years, residing at Village Peyarabagan, Post Office Lashkarpur, Police Station – Narendrapur, Kolkata – 700153, District South 24 Parganas,

     ______Defendant no. 2 /Appellant

-      Versus –

 

1)   Rejak Ali Mondal, Son of Late Golam Mohammad Mondal, residing at Village and Post Office – Chowhati, Police Station – Sonarpur, District South 24 Parganas,

 

2)   Masura Bibi Halder, Wife of Late Mobarak Halder, residing at Village and Post Office – Bonhooghly, Police Station – Sonarpur, District South 24 Parganas,

 

 

3)   Dulal Haslder, Son of Mobarak Halder, residing at Village and Post Office – Bonhooghly, Police Station – Sonarpur, District South 24 Parganas,

 

4)   Sariful Halder, Son of Late Mobarak Halder, residing at Village and Post Office – Bonhooghly, Police Station – Sonarpur, District South 24 Parganas,

 

5)   Layela Khan, Wife of Kalu Khan, residing at Bonhooghly Khan Para, Police Station Sonarpur, Post Office – Bonhooghly, District – South 24 Parganas,

 

6)   Sajeda Khatoon, Daughter of Late Mobarak Halder, residing at Village and Post Office – Bonhooghly, Police Station – Sonarpur, District South 24 Parganas,

 

7)   Salima Seikh, Wife of Julu Seikh, residing at Village – Dakhin Shalpukur, Police Station Bishnupur, Post Office – Nepalgunj, District South 24 Parganas,

 

8)   Salema Mondal, Wife of Late Bablu Mondal, residing at Bonhooghly Mir Para, Post Office School Math, Police Station Naredrapur, District South 24 Parganas,

 

9)   Runa Mondal, Wife of Siraj Mondal, residing at Village – Poleghat, Post Office – Rajpur, Police Station – Sonarpur, District South 24 Parganas,

 

10)        Safura Sardar, Wife of Ajgar Seikh, residing at Village – Natunhat, Post Office – Natunhat, Police Station – Sonarpur, District South 24 Parganas

______Plaintiffs/ Respondents

 

Appeal Valued Rs. 100/-

 

Most respectfully sheweth as under;

1.   That the Plaintiffs/ Respondents, has filed a Suit being T.S. no. 147 of 2023, for Permanent Injunction, against the appellant/ Defendant no. 2, and another person namely Smt. Basanti Ghosh, in respect of a Plot of Land measuring about 6 Decimals under Mouza – Laskarpur Gram, R.S. Khatian No. 411 & 226, corresponding to L.R. Khatian No. 1021, R.S. Dag no. 575, corresponding to L.R. Dag no. 1283, within Police Station previously Sonarpur, at present Narendrapur, District South 24 Parganas.

 

2.   That the Respondents/ Plaintiffs have described devolution of the Property upon them through inheritance and the appellant/ defendant no. 2, and said Smt. Basanti Ghosh has been described as Outsider.

 

3.   That by Order no. 2, dated 02-03-2023, the Learned Civil Judge (Junior Division), 2nd Court, Baruipur, South 24 Parganas, heard the Injunction application under Order XXXIX Rule 1 & 2, read with Section 151 of C.P.C. and was pleased to pass the Order of Status Quo with regard to the nature and Character of Possession of the Suit Property till 31-05-2023.

 

4.   That incompliance with Order 39 Rule 3(a) and 3(b), the Respondents/ Plaintiffs have served copies of the Injunction application upon the appellant.

5.   That the appellant has obtained certified copies of the Orders, passed by the Learned Court and the Copy of the Plaint and the Copy of the injunction application.

 

6.   That a look into the copy of the plaint reveals that the appellant and one Basanti Ghosh have been described as outsider in respect of the Suit Property.

 

7.   That it is the case of the appellant that one Sukanto Dutta Gupta Son of Sukumar Dutta Gupta, is the Owner of the Suit Property, who purchased the same on 21-09-1982, from said Basanti Ghosh, who has expired long ago.

 

8.   That the Owner of the Suit Property, namely Sukanto Dutta Gupta after purchasing the suit property, has mutated his name, before the concerned B.L. & L.R.O. and accordingly his name is appearing in both the R.S. R.O.R. and  L.R. R.O.R. Said Sukanto Dutta Gupta, being the Owner of the said Suit Property, has been paying Taxes before the concerned Authority. He has also paid Property Tax against valid receipts.

 

9.   That under the afore-stated background said Sukanto Dutta Gupta, clearly is the Owner of the Suit Property, who has appointed the appellant as Developer, to develop the said suit property. In terms of the Development Agreement considerable construction work has been done. As such the respondents /plaintiffs are no body to the suit property, who have instituted the suit being T.S. no. 147 of 2023, by producing manufactured documents, and making false averment to non-suit the appellant.

 

10.                That the said Suit filed by the Respondents/ Plaintiffs, is not maintainable since they have made Basanti Ghosh as defendant no. 1, who is a Dead Person, and expired long before institution of the suit.

 

11.                That the Injunction Order no. 02, dated 02-03-2023, passed in T.S. no. 147 of 2023, by the Learned Civil Judge (Junior Division), 2nd Court, Baruipur, South 24 Parganas, is patently wrong as the Learned Court has allowed the injunction application and passed the order of ad-interim injunction, which has been filed against the dead person. The appellant is not the Owner of the Suit Property, the Owner of the Suit Property, has not been made a party to the Suit.

 

 

12.                That the Learned Court below while passing the ad-interim order has passed the final order of the suit, since the respondents/ plaintiffs have prayed for a Decree restraining the appellant from changing nature, character of the suit property, in addition to further restrainment upon the appellant in not evicting the defendants/ plaintiffs, and further restrainment in not transferring the suit property to a third party. As such the prayer of the suit and that of the ad-interim injunction application are same. The Learned Court below has missed to appreciate that in guise of ad-interim order the plaintiffs/ respondents have prayed for the final order, which is not permissible by the law of the Land.

 

13.                That the Learned Court has Firstly, passed the ad-interim order of injunction against a dead person, Secondly, the recorded Owner of the Suit Property, has not been made a party, and Thirdly, Final Order has been passed, in the form of ad-interim injunction.

 

14.                That the appellant reproduced the operative portion of the Order no. 2, dated 02-03-2023, passed in Title Suit no. 147 of 2023, by the Learned Civil Judge (Junior Division), 2nd Court, Baruipur, South 24 Parganas, in the following;

 

“Considering the above facts and circumstances, it appears that the Plaintiffs have a Prima facie case. They have filed certified copies of RS RORs and LR RORs in support of their prima facie case and dispute. If time is consumed in serving notices to the principal defendants and in the mean time, the suit property is not preserved, then the plaintiffs may suffer irreparable loss and injury which may not be compensated later on. The object of injunction will be defeated by delay caused in serving the notices.

 

Issue notices upon the principal defendants, calling upon them to showing-cause within fifteen days from the date of receipt of this order as to why temporary injunction shall not be granted as per prayer of the plaintiffs.

 

Hence, it is Ordered that both the plaintiffs and the principal defendants (1&2) are directed to maintain an order of status quo with regard to the nature character and possession of the schedule suit property as on this day till 31-05-2023”

 

 

 

15.                That the Order no. 2, dated 02-03-2023, passed in Title Suit no. 147 of 2023, by the Learned Civil Judge (Junior Division), 2nd Court, Baruipur, South 24 Parganas, is patently wrong and erroneous and thus not sustainable in the Law.

 

16.                That being aggrieved and dissatisfied with the Order no. 2, dated 02-03-2023, passed in Title Suit no. 147 of 2023, by the Learned Civil Judge (Junior Division), 2nd Court, Baruipur, South 24 Parganas, the appellant beg to prefer the present Misc. Appeal, on the following amongst other ;

 

GROUNDS

 

I.             For that the Trial Court is wrong and unjustified in granting Ad-interim order of Injunction as prayed for by the respondents/ plaintiffs;

 

II.           For that the Order no. 2, dated 02-03-2023, passed in Title Suit no. 147 of 2023, by the Learned Civil Judge (Junior Division), 2nd Court, Baruipur, South 24 Parganas, is patently wrong and erroneous and thus not sustainable in the Law;

 

III.          For that it is the case of the appellant that one Sukanto Dutta Gupta Son of Sukumar Dutta Gupta, is the Owner of the Suit Property, who purchased the same on 21-09-1982, from said Basanti Ghosh, who has expired long ago;

 

IV.         For that the Owner of the Suit Property, namely Sukanto Dutta Gupta after purchasing the suit property, has mutated his name, before the concerned B.L. & L.R.O. and accordingly his name is appearing in both the R.S. R.O.R. and  L.R. R.O.R. Said Sukanto Dutta Gupta, being the Owner of the said Suit Property, has been paying Taxes before the concerned Authority. He has also paid Property Tax against valid receipts;

 

V.           For that under the afore-stated background said Sukanto Dutta Gupta, clearly is the Owner of the Suit Property, who has appointed the appellant as Developer, to develop the said suit property. In terms of the Development Agreement considerable construction work has been done. As such the respondents /plaintiffs are no body to the suit property, who have instituted the suit being T.S. no. 147 of 2023, by producing manufactured documents, and making false averment to non-suit the appellant;

 

VI.         For that the said Suit filed by the Respondents/ Plaintiffs, is not maintainable since they have made Basanti Ghosh as defendant no. 1, who is a Dead Person, and expired long before institution of the suit;

 

VII.        For that the Injunction Order no. 02, dated 02-03-2023, passed in Title Suit no. 147 of 2023, by the Learned Civil Judge (Junior Division), 2nd Court, Baruipur, South 24 Parganas, is patently wrong as the Learned Court has allowed the injunction application and passed the order of ad-interim injunction, which has been filed against the dead person. The appellant is not the Owner of the Suit Property, the Owner of the Suit Property, has not been made a party to the Suit;

 

VIII.      For that the Learned Court below while passing the ad-interim order has passed the final order of the suit, since the respondents/ plaintiffs have prayed for a Decree restraining the appellant from changing nature, character of the suit property, in addition to further restrainment upon the appellant in not evicting the defendants/ plaintiffs, and further restrainment in not transferring the suit property to a third party. As such the prayer of the suit and that of the ad-interim injunction application are same. The Learned Court below has missed to appreciate that in guise of ad-interim order the plaintiffs/ respondents have prayed for the final order, which is not permissible by the law of the Land;

 

IX.         For that the Learned Court has Firstly, passed the ad-interim order of injunction against a dead person, Secondly, the recorded Owner of the Suit Property, has not been made a party, and Thirdly, Final Order has been passed, in the form of ad-interim injunction;

 

X.           For that the Order no. 2, dated 02-03-2023, passed in Title Suit no. 147 of 2023, by the Learned Civil Judge (Junior Division), 2nd Court, Baruipur, South 24 Parganas, is based on surmises and conjecture and liable to be set aside.

 

XI.         For that, the impugned order is otherwise bad in law and it should be dismissed in limini.

 

It is therefore, prayed that Your Honour would graciously be pleased to admit the appeal, call for the records of the Lower Court and after hearing to set aside the impugned Order no. 2, dated 02-03-2023, passed in Title Suit no. 147 of 2023, by the Learned Civil Judge (Junior Division), 2nd Court, Baruipur, South 24 Parganas, and pass such other order or orders as Your Honour may deem fit and proper.

 

 

 

CERTIFICATE

I certify that I have examined the papers supplied to me and that in my opinion there are good grounds, as above set forth for this appeal, and I undertake to appear and support the appeal before the appellate Court.

 

Advocate

 

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