Sanjit Jana vs Sri Nilanjan Mal
2021 Latest Caselaw 5685 Cal

   27
 sandip
 Ct. 18
16.11.2021

C.O. No. 1448 of 2020 (Via Video Conference)

Sanjit Jana Vs.

Sri Nilanjan Mal

Mr. Sanjib Mal, Mr. Soumen Bhattacharjee ... For the petitioner.

Mr. Subrata Bhattacharjee ... For the opposite party.

Affidavit-of-service filed in Court today be kept with

the record.

The defendant in a suit for declaration is the

petitioner of the present application under Article 227

of the Constitution of India which is directed against

the judgment and order dated July 22, 2020 passed

by the learned District Judge at Howrah in Misc.

Appeal No. 51 of 2019.

The learned Trial Judge by the Order No. 26 dated

January 30, 2019 allowed an application for

injunction filed by the plaintiff/opposite party.

The learned Trial Judge by the said order, directed

the parties to maintain status quo as regards the

nature, character, title and possession over the suit

property till the disposal of the said suit.

The petitioner aggrieved by the said order preferred

the connected Misc. Appeal No. 51 of 2019.

The appeal Court below by the order impugned has

affirmed the order of the learned Trial Judge.

Mr. Sanjib Mal, learned counsel appearing on

behalf of the petitioner submits that since both parties

are claiming possession over the suit property the

appeal Court below felt it necessary to hold local

inspection of the suit property to ascertain the parties'

possession but without taking said recourse, has

affirmed the order of the learned Trial Judge.

In the present case, both the parties are claiming

possession over the suit property, under such

circumstances, an order of injunction in the form of

status quo regarding possession over the suit property

without ascertaining as to who is in possession of the

suit property shall create numerous complications; as

such, the appeal is required to be heard afresh to

avoid such complications.

The order impugned, for the aforesaid reason, is set

aside.

C.O. 1448 of 2020 is disposed of with a request to

the appeal Court below to decide the said appeal

afresh in accordance with law, expeditiously.

The parties are at liberty to adduce evidence in the

said appeal in support of their respective claims by

taking recourse of Order XLI Rule 27 of the Code of

Civil Procedure.

There shall be no order as to costs.

Urgent Photostat certified copy of this order, if

applied for, be supplied to the parties subject to

compliance with all requisite formalities.

(Biswajit Basu, J.)