Subham Paul vs Sankari Mondal And Ors
2023 Latest Caselaw 2905 Cal

25.04.2023
 KC(10)



                               F.M.A. 109 of 2023
                                  Subham Paul
                                     -versus-
                             Sankari Mondal and Ors.
                                       With
                                 CAN 1 of 2023
                                       With
                                 CAN 2 of 2023



             Mr. Devajyoti Barman,
             Ms. Sanjukta Basu Mallick............For the appellant.

             Mr. Joydeep Kar, Sr. Adv.,
             Mr. Sagar Bandyopadhyay,
             Mr. Arijit Chakraborty,
             Mr. K.K. Maity,
             Mr. Supriyo Kumar Roy,
             Mr. Tamal Banerjee,
             Ms. Puja Rajbhar........................For the respondent

nos. 7 and 8.

Mr. Kamal Krishna Pathak, Mr. Souvik Maji...........................For the respondent no. 19.

We are in a position to dispose of the appeal,

dispensing with all formalities.

The appearing respondents/defendants are

developers. They claim to be the owners of and

undertaking development work in a large property of

over 100 cottahs under the Sonarpur Police Station in

Kolkata. The appellant/plaintiff claims to have 1/24th

share in dag nos. 230 and 231 and 1/16th share in dag

no. 232 in the said property. This claim is very seriously

denied by the respondents/defendants.

In a suit inter alia for declaration, partition and

injunction filed in the court below by the

appellant/plaintiff on 7th December, 2018 the said court

had passed an ex parte interim order directing the

respondents/defendants to maintain status quo over

the property. Soon thereafter the respondents/

defendants filed an application under Order XLI Rule 4

of the Code of Civil Procedure for discharge of the said

interim order.

In course of time the injunction application

together with the Order XLI Rule 4 application became

ready for hearing. On 3rd January, 2023 the learned

court below disposed of the injunction application by

vacating the interim order. The plaintiff/appellant

wants continuance of the said order.

We find that the impugned judgment and order of

the learned court below is quite well reasoned. It is trite

that when an order of injunction is made or refused by

a reasoned order, the appellate court respects the

discretion of the learned court below and does not

interfere with the said order. It is only interfered with if

the order is perverse or in such gross disregard of facts

and evidence that it is unconscionable to support it or

is otherwise most unreasonable. That is not the case

here.

In any event, the share which the plaintiff/

appellant claims is quite insignificant compared to the

defendants'/respondents' share. Any restraint order

would very seriously affect these major co-sharers.

In that view of the mater, we direct that the suit

be made ready and heard out expeditiously preferably

within one year of communication of this order.

The appellant/plaintiff shall make an application

before the learned court below within ten days from

date to pass necessary directions for expeditious

hearing of the suit e.g. discovery, inspection etc.

The respondents/defendants shall be permitted to

develop the property and deal with the same subject to

the result of the suit.

On the prayer of learned counsel for the

appellant/plaintiff we make it clear that any

observation made by us or by the learned court below at

this stage shall be taken to be prima facie and tentative.

The appeal (F.M.A. 109 of 2023) and the

applications (CAN 1 of 2023 and CAN 2 of 2023) are

disposed of.

(I.P. MUKERJI, J.)

(BISWAROOP CHOWDHURY, J.)