Calcutta High Court (Appellete Side)
Smt. Sima Chakraborty & Anr vs Smt. Anjusri Chakraborty & Ors on 3 October, 2023
03.10.2023
28
Ct. no. 652
sb
CO 3647 of 2019
With
CAN 1 of 2021
CAN 2 of 2023
Smt. Sima Chakraborty & Anr.
Vs.
Smt. Anjusri Chakraborty & ors.
Mr. Krishnendu Bera
Ms. Debolina Chakraborty
...for the Petitioners
Mr. Uday Sankar Chattpadhyay
Ms. Trisha Rakshit
Ms. Rajashree Tah ...for the O.P nos. 1 to 3
Mr. Soumya Banerjee
Ms. Sucheta Banerjee ...for the Kamarhati
Municipality
Being aggrieved and dissatisfied with the
judgment and order no. 15 dated 30.9.2019 passed by
the learned Additional District Judge, Fast Track Court-
IV, Barrackpore , North 24 parganas in Misc. Appeal no.
57 of 2017, present application under Article 227 of the
Constitution of India has been preferred.
The petitioners contended that the petitioners as
plaintiffs instituted a suit for declaration and injunction
being Title Suit no. 372 of 2017 against the opposite
parties herein being the defendants inter alia for a
decree of declaration that the defendants/opposite
parties have no right title and interest over the
petitioner's "B" schedule property and decree of
permanent injunction restraining the
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defendants/opposite parties not to construct any illegal
unauthorised construction over any part or portion of
the "B" and "C" schedule property and to remove the
illegal unauthorised construction.
In the said suit, the petitioners moved for an ex
parte ad-interim order of injunction and since no caveat
was lodged by the opposite parties, after hearing the
petitioners only, the trial court, in the aforesaid suit,
passed ad interim order of injunction restraining the
defendants and their men and agents from making any
unauthorised construction over any portion of the "B"
and "C" schedule property and from changing the
nature and character of the suit property.
Being aggrieved by that ad-interim order of
injunction, the defendants/opposite parties herein
preferred Misc. appeal being no. 57 of 2017. Learned
Appellate Court by the impugned order, was pleased to
allow the aforesaid Misc. Appeal with cost of Rs. 3,000/-
and thereby set aside the ex parte ad interim order of
injunction passed by the Trial court vide order dated
18.9.2017.
Being aggrieved by that order, the
plaintiffs/petitioners have preferred this application
under Article 227 of the Constitution of India
contending that the opposite parties all along are trying
to encroach the petitioners land upon raising
unauthorised construction over "C" schedule property
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without leaving side space as per provision of the West
Bengal Municipal Act and Rules. He further contended
that he made several representations before the
concerned municipality. His further case is that the
court below has completely misunderstood the fact that
Municipality have sanctioned the 1st floor building plan
to the respondents.
Having considered the facts and circumstances of
the case, it appears to me that the suit was filed in the
year 2017 and ad-interim order of injunction was
passed in September, 2017. Curiously, since then the
plaintiff's petition for temporary injunction has not yet
been heard and disposed of and for which the suit has
not been proceeded. In such view of the matter, learned
trial court is hereby directed to dispose of the plaintiff's
petition for temporary injunction after giving
opportunity to both the parties to contest, within a
period of twelve weeks from the date of communication
of the order without granting any unnecessary
adjournment to either of the parties. I have made it clear
that I have not gone into the merits or demerits of the
plaintiff's petition for injunction nor I have adjudged
anything about merits of the order impugned but the
aforesaid direction is made upon the Trial Court
exercising supervisory jurisdiction and for the ends of
justice. Accordingly, court below will dispose of the
injunction application without being influenced by any
observation made herein. I have also made it clear that
this order will not preclude concerned municipality to
issue sanctioned plan, if any, to the opposite parties, if
they are legally entitled to get. This court while
admitting the application was pleased to restrain
opposite parties by an order of injunction from making
any unauthorised construction over the "C" schedule
property and from changing the nature and character of
the suit property, which shall continue till disposal of
injunction application by the court below.
Accordingly, C.O. 3647 of 2019 is disposed of.
Connected application also stands disposed of.
Urgent photostat certified copy of this order, if
applied for, be given to the parties upon compliance of
all requisite formalities.
(Ajoy Kumar Mukherjee, J.)
