Calcutta High Court (Appellete Side)
Smt. Manjusree Dutta & Anr vs Sri Amal Das & Ors on 16 February, 2022
16.02.2022
(S/L-12)
Ct.-18
(Susanta)
(Via Video Conference)
C.O. 2633 of 2019
Smt. Manjusree Dutta & Anr.
-Vs-
Sri Amal Das & Ors.
Mr. Debjit Mukherjee,
Mr. Kaustav Bhattacharya,
.... For the Petitioners.
Mr. Kaustav Bhattacharya, learned advocate for
the petitioners, files affidavit-of-service which is taken
on record.
None appears on behalf of the opposite parties in
spite of service.
The plaintiffs in a suit for declaration of title and
injunction are the petitioners of the present
application under Article 227 of the Constitution of
India which is directed against order no. 25 dated
June 24 , 2019 passed by the 4th Court of learned
Civil Judge (Junior Division), Alipore in the said suit
being Title suit No. 378 of 2017.
The petitioners in the said suit filed an
application under Section 151 of the Code of Civil
Procedure for restoration of their possession over the
suit property on the allegation that the defendants in
violation of the subsisting order of injunction passed
in the suit have dispossessed them.
The learned Trial Judge by the order impugned
has dismissed the said application.
2
Mr. Bhattacharya, learned advocate appearing
on behalf of the petitioner, submits that the
petitioners have been wrongfully dispossessed from
the suit property in violation of the order of
injunction, as such, the learned Trial Judge in
exercise of his inherent power under Section 151 of
the Code should have restored possession of the
petitioners over it. In support of such contention, he
refers to the following judgments of the learned Single
Judges of this Court.:-
1.
In the case of Hashen Seikh & Ors. vs.
Asura Bibi & Ors. reported in 2019 (1) ICC
74 (Cal.)
2. In the case of Manash Kumar Maji & Ors.
vs. Suman Maji & Ors. reported in 2019(1)
ICC 829 (Cal).
Heard Mr. Bhattacharya, perused the materials-
on-record.
In the suit, the possession of the parties over the
suit property is in dispute. The learned Trial Judge
did not find any material to hold that as on the date
of order of injunction or prior thereto the petitioners
were in possession over the suit property and under
such facts and circumstances of the case, refused to
grant the relief as prayed for in the said application at
that stage.
There is no dispute in the proposition of law laid
down in the cited judgments that the Court can
restore the possession of a party to the suit who has
been dispossessed from the suit property in violation
of the order of injunction but the said proposition of
law has no manner of application in the facts and
circumstances of the present case.
This Court does not find any illegality and/or
infirmity in the order impugned warranting
interference.
It is however made clear that this order shall not
prevent the petitioners from seeking appropriate relief
in the suit for restoration of their possession over the
suit property subject to proof that they were in
possession prior to the said order of injunction
passed in the suit.
The learned Trial Judge is requested to dispose
of the application for injunction expeditiously, if the
same is still pending.
C.O. 2633 of 2019 is disposed of with the above
observations without any 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.)
