Calcutta High Court (Appellete Side)
Kahm Industries Pvt. Ltd. & Anr vs Punalur Paper Mills Ltd on 28 March, 2022
28.03.2022
SL No.15
Court No.8
(gc)
FMAT 57 of 2022
With
CAN 1 of 2022
Kahm Industries Pvt. Ltd. & Anr.
Vs.
Punalur Paper Mills Ltd.
(Via Video Conference)
Mr. Jishnu Saha, Sr. Adv.,
Mr. Sakya Sen,
Mr. S.R. Kakrania,
Mr. T. Kakrania,
Mr. K. Sharma,
...for the Appellants.
Mr. Probal Kumar Mukherjee, Sr. Adv.
Mr. Souradipta Banerjee,
Ms. Fatima Hassan,
...for the Respondent.
The plaintiff filed a suit for declaration and
injunction. In the suit, the plaintiff has prayed, inter
alia, for a judgment that the sale deed executed in
favour of the defendants on 5th April, 2003 is liable to be
delivered up and cancelled. The plaintiff contended
before the Trial Court that the plaintiff has a good prima
facie case and relied upon certain orders passed under
the land acquisition proceedings as well as the orders
passed in Title Suit No.314 of 2021. The plaintiff was
aware that there was an earlier proceeding between the
parties with regard to the entitlement of the claim of
compensation amount receivable in respect of
acquisition of few floors in the suit property. The order
passed in connection with the applications filed by the
respective parties before the Trial Court was under
challenge. The hearing of the appeal was concluded, in
fact, the hearing of the application for receiving the
balance compensation amount was heard few days back
and made C.A.V.
It was in such background, we feel that the plaintiff
ought to have moved the said application upon notice to
the defendants irrespective of the fact that whether
there was any caveat as any decision in the said
proceeding would adversely affect the interest of the
defendant. We feel that there has been a suppression of
material facts before the Trial Court and we are sure
that if such facts are brought to the notice of the Trial
Court, the learned Trial Judge might not have passed
an ex parte ad-interim order in favour of the plaintiff.
The deed of sale was executed in the year 2004. We feel
that approaching the Court with half baked facts was a
dishonest attempt on the part of the plaintiff to snatch
an order when prima facie it appears that the
defendants are the owners of the said property. In fact,
we feel that on the basis of the pleadings and having
regard to the fact that the sale deed of 2003 was
challenged in the suit only recently, the Trial Court
ought not to have exercised its discretion in favour of
passing an ad-interim order inasmuch as it does not
appear that the plaintiff was able to make out any
urgency. There was no tearing hurry. Moreover, we do
not find that the Trial Court has arrived at any prima
facie finding that the plaintiff was able to make out a
strong prima facie case and the balance of convenience
lies in favour of passing an ex parte ad-interim order in
favour of the plaintiff.
On such consideration, we set aside the impugned
order.
It appears that on 30th March, 2022 the matter has
been fixed by the learned Trial Judge for consideration
of the injunction application. The respondent shall file
written objection in the injunction application by
tomorrow.
The learned Trial Judge may consider the prayer for
injunction on 30th March, 2022 in presence of the
respondent.
We make it clear that the observation made by us
shall not influence the learned Trial Judge in disposing
of the injunction application on merits.
The learned Trial Judge while considering the
injunction application shall take into consideration the
application filed by the appellants under Order 7 Rule
11 of the Code of Civil Procedure.
With the aforesaid observation, the appeal being
FMAT 57 of 2022 is allowed and disposed of.
In view of the disposal of the appeal, the application
being CAN 1 of 2022 also stands disposed of.
However, there shall be no order as to costs.
All parties shall act on the server copies of this
order duly downloaded from the official website of this
Court.
(Ajoy Kumar Mukherjee, J.) (Soumen Sen, J.)
