DISTRICT: SOUTH 24-PARGANAS
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
C. O. of 2023
In
the Matter of
An application under Article 227 of the Constitution
of India;
And
In the Matter of
Order no. 2, dated 15-03-2023, passed in Misc. Appeal
no. 14 of 2023, by the Learned Civil Judge (Senior Division), 2nd
Court, Baruipur, South 24 Parganas;
And
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, Mobile Number 9831095724.
…… Defendant
no. 2, /Petitioner
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 /Opposite Parties
Application Valued at 
100/-
To
The Hon’ble
Prakash Shrivastava, Chief Justice and His Companion Justices of the said
Hon’ble Court
The humble petition of the petitioner above-named most
respectfully;
Sheweth: -
1.
That the Plaintiffs/ Opposite Parties,
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 Plaintiffs/ Opposite Parties
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 said Smt. Basanti Ghosh, while in
possession and peaceful enjoyment of the Suit Property, transferred the same,
in the year 1982, in favour of one Sukanta Dutta Gupta.
Photostat
Copy of the said Deed is annexed herewith and marked as Annexure – “P-1”.
4.
That the said Sukanta Dutta Gupta is
the Owner of the Suit Plot of Land. His name has been mutated, 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 Sukanta 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 His name has been recorded in
the record of right. He has been paying regular taxes before the concern authority.
Photostat
Copies of the R.O.R., Mutation, etc. are annexing herewith and marked as
Annexure – “P-2”, collectively.
5.
That the said Sukanta Dutta Gupta by a
Registered Development Agreement has entrusted the Defendant no. 2/ Petitioner
to develop the Suit Plot of Land. On the basis of the building plan sanctioned
by the concerned authority, the petitioner is in progress of the development
work. As on date the petitioner has completed a considerable work in the suit
plot of land.
Photostat
copies of the photograph of the ongoing construction work, are annexed herewith
and marked as Annexure – “P-3” Collectively.
Leave
may be granted to produce the sanctioned building plan, if required, before the
Hon’ble Court at the time of hearing of this application.
6.
That under such backdrop, the
Plaintiffs/ Opposite Parties have instituted a Title Suit being T.S. no. 147 of
2023, before the Learned Civil Judge (Junior Division), 2nd Court,
Baruipur, South 24 Partganas, for Permanent Injunction, praying for permanent
injunction upon the petitioners/ defendants, not to enter into the suit
property or not to damage the suit property by making construction. On
02-03-2023, the Learned Court below heard the interim prayer for injunction and
has been pleased to direct both the parties to maintain status quo with regard
to nature, character, and possession of the suit property, till 31-05-2023.
Photostat
copies of the Orders, plaint and injunction application, are annexed herewith
and marked as Annexure – “P- 4” Collectively
7.
That the Petitioner challenging the
said 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, preferred a Misc. Appeal being 14 of 2023, before the Learned
Civil Judge (Senior Division) 2nd Court, Baruipur, South 24
Parganas.
8.
That by Order no. 2, dated 15-03-2023,
the Learned Court below has been pleased to refuse, the prayer for stay to give
chance of being heard of the opposite parties. The matter has been fixed on
13-06-2023.
Certified
copy of the order dated 15-03-2023, is annexed herewith.
9.
That the Petitioner states and submits
that while passing the order impugned the Learned Court did not consider the
title deed, record of right, tax receipts, sanctioned building plan, submitted
through firishti.
10.
That the Petitioner states and submits
that the Opposite Parties have not made the present owner namely one Sukanta
Dutta Gupta, as a Party in the Suit. They have made party the vendor of the
present owner, who is defendant no. 1.
11.
That the Petitioner states and submits
that the Learned Court fail to appreciate ongoing construction by raising
foundation being advanced by the petitioner is deciding who is in possession.
The documents annexed with this application which were produced before the
Learned Court below, clearly proves the Title, mutation, and Possession of said
Sukanta Dutta Gupta – the Owner of the Suit Plot of Land, who has engaged the
Petitioner to do the development work on the suit plot of land.
12.
That the petitioner states and submits
that the Learned Court below has miserably failed to appreciate that an exparte
application is heard and necessary order is passed on the basis of the
submitted documents, wherefrom the Learned Court gets an idea about prima facie
case. If the Court is satisfied with the primafacie case, then the interim
order is passed with the direction for appearance of the other party, to pass
the final order, in the instant case the documents relating to title and
possession were sufficient to establish the prima facie case in favour of the
petitioner, still the Learned Judge did not consider those document, which is
not permissible under the Law.
13.
That the Petitioner states and submits
that the Learned Court has not taken note of the fact that the building
materials will be of no use, and the petitioner will face a huge loss.
14.
That the Petitioner states and submits
that the Learned Court below has missed to note that the Learned Court below
has observed “the considered view of this Court is that if any order of stay is
passed without giving an opportunity of the other parties, the entire relief of
the appeal will be supposed to be granted”. But in observing this the Learned
Court below, did not take note that the Court was hearing the stay application
which means the Learned Court below has accepted that the Learned Trial Court
has passed the final relief of the suit while passing the order in ad-interim
injunction application. Therefore the Learned Court below, even after accepting
such error committed by the Learned Trial Court, has affirmed the same.
15.
That the petitioner states and submits
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 the petitioner states and submits
that the Order no. 2, dated 15-03-2023, passed in Misc. Appeal no. 14 of 2023,
by the Learned Civil Judge (Senior Division), 2nd Court, Baruipur,
South 24 Parganas, is patently wrong and erroneous and thus not sustainable in
the Law.
17.
That
being aggrieved by and dissatisfied with the impugned Order
no. 2, dated 15-03-2023, passed in Misc. Appeal no. 14 of 2023, by the Learned
Civil Judge (Senior Division), 2nd Court, Baruipur, South 24
Parganas, Your petitioner begs to move Your Lordship for
revision on the following amongst other
G R O U N D S
I.
For that
while passing the order impugned the Learned Court did not consider the title
deed, record of right, tax receipts, sanctioned building plan, submitted
through firishti;
II.
For that
the Opposite Parties have not made the present owner namely one Sukanta Dutta
Gupta, as a Party in the Suit. They have made party the vendor of the present
owner, who is defendant no. 1;
III.
For that
the Learned Court fail to appreciate on-going construction by raising
foundation being advanced by the petitioner is deciding who is in possession.
The documents annexed with this application which were produced before the
Learned Court below, clearly proves the Title, mutation, and Possession of said
Sukanta Dutta Gupta – the Owner of the Suit Plot of Land, who has engaged the
Petitioner to do the development work on the suit plot of land;
IV.
For that
the Learned Court below has miserably failed to appreciate that an exparte
application is heard and necessary order is passed on the basis of the
submitted documents, wherefrom the Learned Court gets an idea about prima facie
case. If the Court is satisfied with the primafacie case, then the interim order
is passed with the direction for appearance of the other party, to pass the
final order, in the instant case the documents relating to title and possession
were sufficient to establish the prima facie case in favour of the petitioner,
still the Learned Judge did not consider those document, which is not
permissible under the Law;
V.
For that
the Learned Court has not taken note of the fact that the building materials
will be of no use, and the petitioner will face a huge loss;
VI.
For that
the Learned Court below has missed to note that the Learned Court below has
observed “the considered view of this Court is that if any order of stay is
passed without giving an opportunity of the other parties, the entire relief of
the appeal will be supposed to be granted”. But in observing this the Learned
Court below, did not take note that the Court was hearing the stay application
which means the Learned Court below has accepted that the Learned Trial Court
has passed the final relief of the suit while passing the order in ad-interim
injunction application. Therefore the Learned Court below, even after accepting
such error committed by the Learned Trial Court, has affirmed the same;
VII.
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;
VIII. For that the Order no. 2, dated 15-03-2023, passed in
Misc. Appeal no. 14 of 2023, by the Learned Civil Judge (Senior Division), 2nd
Court, Baruipur, South 24 Parganas, is patently wrong and erroneous and thus
not sustainable in the Law.
18.
That the
Petitioner craves leave to produce the copy of relevant documents relied on by
the petitioner, at the time of hearing before the Hon’ble Court.
19.
That the
application is made bona fide and for the ends of justice.
Under the above circumstances, Your petitioner most
humbly prays that Your Lordship may graciously be pleased to show
cause as to why the order impugned no. 2, dated 15-03-2023, passed in Misc.
Appeal no. 14 of 2023, pending before the Learned Civil Judge (Senior Division)
2nd Court, Baruipur, South 24 Parganas, shall not be set aside and
to stay operation 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,
immediately, and/or to pass such other further Order/Orders as to Your Lordship
may deem fit and proper
And Your
petitioner as in duty bound shall ever pray.
AFFIDAVIT
I, Sri Sujit
Saha, Son of Late Amar Chandra Saha, aged about 56 years, by faith Hindu, by
Occupation Business, residing at Village Peyarabagan, Post Office Lashkarpur,
Police Station – Narendrapur, Kolkata – 700153, District South 24 Parganas, do
hereby solemnly affirm and say as follows:
1. That I am the petitioner of this
application and I am well acquainted with the facts and circumstances of the
case.
2. That the
statements made in paragraph No. 1,2,3,4, & 5, are true to my knowledge and
those made in paragraphs 6,7, & 8,
are true to my information derived from the records of the case and rest
paragraphs are my respectful submission before this Hon’ble Court.
Prepared in my office The deponent is
known to me
Advocate Clerk to: Mr. Advocate
Solemnly affirmed before me
on this the day of March, 2023.
I
certify that all annexures
are
legible.
Advocate. COMMISSIONER
DISTRICT : South 24 Parganas.
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
C.O.
No. of 2023;
In
the matter of:
An
application under Article 227 of the Constitution of India;
And
In
the matter of:
Sri
Sujit Saha
………..Petitioner
-Versus-
Rejak
Ali Mondal & Others.
……Opposite Parties
REVISION PETITION
MR. ASHOK KUMAR
SINGH
Advocate
Bar Association,
Room No.15,
High Court,
Calcutta.
(M) 9883070666 /
9836829666.
Email : aksinghadvocate@rediffmail.com
Enrollment Number :
F/872/2000
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