Calcutta High Court (Appellete Side)
Smt. Sabita Barik vs Sri Subrata Maity And Others on 23 June, 2021
23rd June,
(AK)
C.O 758 of 2021
Smt. Sabita Barik
Vs.
Sri Subrata Maity and others
Mr. Tanmoy Mukherjee
Ms. Shila Sarkar
...For the Petitioner.
Mr. Uday Sankar Bhattacharya
...For the Pro-forma Opposite Party.
The petitioner has challenged an order passed by
the appellate court dismissing a Miscellaneous Appeal
against an order passed on an injunction application filed
by the opposite party no.1 directing both the petitioner
and the opposite party no.1 to maintain status-quo in
respect of the nature, character and possession of the
suit property.
The present grievance of the petitioner is that the
opposite party no.1 is causing hindrance to the laying of
underground cable for taking electric connection to the
plot no.2237, which is jointly owned by her husband, in
the petitioner's name.
Regarding the passage under which the connection
is sought, a previous decree by an appellate court stares
in the face of the petitioner, which granted relief to the
petitioner only to the extent of declaring the joint
ownership of the petitioner's husband and other co-
owners in respect of plot no.2237 and refused the relief
claimed by the petitioner's husband for right of user and
enjoyment of the passage in-question.
A second appeal was preferred against the said
appellate court's judgment and decree, which is now
pending in this court after admission.
However, although the petitioner does not have a
right of user till date, subject to the decision taken in the
second appeal, over the disputed passage, mere
installation of electric connection under the said passage
to plot no.2237, particularly when another underground
connection is existing under the same passage, would not
tantamount to regular user or enjoyment of such
passage.
That apart, the injunction order directing the
parties to maintain status-quo is restricted to changing
the nature, character and possession of the passage,
whereas temporary digging and subsequent filling up of
the passage for the limited purpose of taking
underground electric connection to plot no.2237 cannot
be deemed to be a violation of such status-quo order,
since the nature and character as well as possession of
the passage will not be changed by such temporary work
by the CESC.
The affidavit-of-service which is on record shows
that service has been effected on all the opposite parties.
However, although the proforma opposite parties are
represented through counsel along with the petitioner,
none appears today, when the matter is called on for
hearing, on behalf of the opposite party no.1.
The learned advocate-on-record for the petitioner
shall serve a further notice of the next returnable date on
his counter-part appearing for the opposite party no.1 in
the court below and file a copy of the receipt and/or an
affidavit-of-service on the next date of hearing.
Learned counsel appearing for the proforma
opposite parties is requested to take instruction in the
meantime as to how long it will take for the CESC to
complete the work on the disputed passage.
The matter shall next be enlisted on June 25, 2021
fairly at the top of the list.
(Sabyasachi Bhattacharyya, J.)
