Sri Mahabir Prasad Agarwalla vs Smt. Maitreyi Ghosh & Another
2022 Latest Caselaw 6055 Cal

29.08.2022
Court No.32
 rpan/13


                               FA 127 of 2022
                                    +
                              IA No.: CAN 1 of 2022
                     Sri Mahabir Prasad Agarwalla
                               - Versus -
                    Smt. Maitreyi Ghosh & Another

                    Mr. Asish Kumar Das,
                    Mr. Suman Chattopadhyay
                               ... for the Appellant.

                         In Re.: IA No.: CAN 1 of 2022 [Injunction]

                    Since    we   find   that    there   is   a   no caveat

              endorsement we take up hearing of this application

              exparte.

                    The present appeal has been filed challenging

              the judgment and decree dated 22 nd April, 2022 passed

              by the learned Judge, Bench - XIII, City Civil Court,

              Calcutta in Title Suit no.1453 of 2017.

                    In connection with the aforesaid appeal an

              application, being CAN 1 of 2022 has been filed inter

              alia praying for an interim order restraining the

              respondents from transferring alienating, encumbering

and/or creating any third party interest over and in

respect of the suit property.

As prayed for by Mr. Das, leave is granted to file

supplementary affidavit. Let the supplementary

affidavit filed on behalf of the appellant be kept on

record.

Mr. Das, learned advocate appearing in support

of the aforesaid application submits that the learned

trial judge has been pleased to dismiss the suit on an

application filed by the defendants/respondents by

invoking powers under Order 7 Rule XI of the Code of

Civil Procedure, 1908. He submits that the appellant

impugns the aforesaid judgment and decree on several

grounds and submits that the appellant/plaintiff has a

prima facie case to go for trial. Drawing our attention

to an order no.14 dated 15 th March, 2019, he submits

that the learned trial court on an application filed by

plaintiff was inter alia pleased to direct the parties not

to create any third party interest in respect of the suit

property till disposal of the suit.

Mr. Das submits that the respondents taking

advantage of dismissal of the aforesaid suit, are

attempting to transfer the suit property, which

comprises of a shop room, to a third party upon

receiving huge amount.

According to Mr. Das, if notice of this application

is served on the respondents, they shall immediately

deal with the aforesaid property so as to render the

present application infructuous. The suit property is

situated in a business area and possession thereof can

be easily transferred to a third party, as such he prays

for exparte order of injunction.

We have heard the learned advocate appearing in

support of the aforesaid injunction application. We

have considered the materials on record.

We have considered the averments made in the

application and the arguments, advanced by the

learned advocate appearing for the appellant. We find

that the appellant/plaintiff has filed a suit for recovery

of possession as also for other reliefs. We are of the

opinion that the appellant has been able to make out a

prima facie case to go for trial. We have also taken note

of the interim order passed by the Learned Court on

15th March, 2019. We are of the opinion that the

appellant should be granted a limited protection in the

form of an interim order at this stage and unless such

order is passed, the injunction application may be

rendered infructuous.

In such circumstances, as aforesaid, we direct

that the respondents shall not create any third party

interest and/or transfer or encumber or alienate the

suit property in any manner whatsoever till 30 th

September, 2022 or until further order whichever is

earlier.

The appellant is directed to serve a copy of the

injunction application, memorandum of appeal and the

supplementary affidavit filed today on the respondents

and also communicate a gist of the aforesaid order to

the respondents. The appellant is also directed to file

affidavit of service before this Court within 24 hours

stating that the copies of the aforesaid has been so

delivered or sent.

The respondents are at liberty to apply for

vacating and/or varying of the aforesaid order upon

notice to the appellant.

List this matter for further consideration on 20th

September, 2022.

(Raja Basu Chowdhury, J.) (Tapabrata Chakraborty, J.)