Page No.# 1/7 vs Khoirul Hussain And 4 Ors
2025 Latest Caselaw 3373 Gua

Gauhati High Court

Page No.# 1/7 vs Khoirul Hussain And 4 Ors on 21 February, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                                Page No.# 1/7

GAHC010089482024




                                                          2025:GAU-AS:1953

                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                          Case No. : FAO/29/2024

         CHAMPUPARA BAZAR COMMITTEE AND ANR
         AT CHAMPUPARA BAZAR, P.O. CHAMPUPARA BAZAR, P.S. CHAYGAON,
         DIST. KAMRUP, ASSAM, PIN- 781136, REP. BY THE PRESIDENT OF
         CHAMPUPARA BAZAR COMMITTEE, ABDUS SATTAR, R/O- VILL.-
         CHAMPUPARA PATHAR, P.O. CHAMPUPARA BAZAR, P.S. CHAYGAON, DIST.
         KAMRUP, ASSAM

         2: ABDUS SATTAR
          S/O- LATE ABDUS SALAM
          R/O- VILL.- CHAMPUPARA PATHAR
          P.O. CHAMPUPARA BAZAR
          PS CHAYGAON
          DIST. KAMRUP
         ASSAM
          PIN- 781136

         VERSUS

         KHOIRUL HUSSAIN AND 4 ORS
         S/O- LATE TOSER ALI, R/O- VILL.- CHAMPUPARA GAON, P.O.
         CHAMPUPARA BAZAR, P.S. CHAYGAON, DIST. KAMRUP, ASSAM, PIN-
         781136.

         2:MONTAZ ALI AHMED
          S/O- LATE SHONGSHER ALI
          R/O- VILL.- CHAMPUPARA GAON
          P.O. CHAMPUPARA BAZAR
          P.S. CHAYGAON
          DIST. KAMRUP
         ASSAM
          PIN- 781136.

         3:NASIM UDDIN AHMED
          S/O- LATE ABDUL JALIL
                                                                     Page No.# 2/7

            R/O- GOROIMARI BAZAR
            P.O. TUKRAPARA
            P.S. GOROIMARI
            DIST. KAMRUP
            ASSAM
            PIN- 781137.

            4:CHAN MAHMUD
             S/O- LATE ABDUL JOBBAR
             R/O- VILL.- CHAMPUPARA PATHAR
             P.O. CHAMPUPARA BAZAR
             P.S. CHAYGAON
             DIST. KAMRUP
            ASSAM
             PIN- 781136.

            5:SOBUR UDDIN
             S/O- LATE HUSSAIN ALI
             R/O- VILL.- GOROIMARI SATRA
             P.O. TUKRAPARA
             P.S. GOROIMARI
             DIST. KAMRUP
            ASSAM
             PIN- 781137

For the Appellant(s)       : Mr. R. Majumdar, Advocate
For the Respondent(s)      : Mr. S. Sinha, Advocate


Date of Hearing                         : 21.02.2025
Date of Judgment                        : 21.02.2025




                                      BEFORE
                       HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                             JUDGMENT AND ORDER (ORAL)

Heard Mr. R. Majumdar, the learned counsel appearing on behalf of the appellants. Mr. S. Sinha, the learned counsel appears on behalf of the Page No.# 3/7

respondent Nos. 1 to 5.

2. This is an appeal filed under Order XLIII Rule 1(r) read with Section 104 of the Code of Civil Procedure, 1908 (for short, "the Code") challenging the orders dated 28.03.2024 and 23.04.2024 respectively passed in Misc(J) Case No. 116/2024 (in Title Suit No. 67/2024) whereby the Court of the learned Civil Judge (Senior Division), Kamrup, Amingaon (hereinafter referred to as, "the learned Trial Court") declined to grant an ad-interim injunction against the defendants.

3. From a perusal of the materials on record, it is seen that the appellants herein as plaintiffs had filed a suit being Title Suit No. 67/2024 seeking a decree for confirmation of possession of the plaintiffs over the suit land; for eviction of the defendants from the suit property with exemplary cost in favour of the plaintiffs; for recovery of khas possession of the plaintiffs over the suit property and for permanent injunction restraining the defendants, their men, agents, workmen and associates from disturbing the peaceful use, occupation and possession of the plaintiffs over the suit land. The suit was registered and numbered as Title Suit No. 67/2024.

4. The appellants herein had also filed an application seeking ad-interim temporary injunction which was registered and numbered as Misc(J) Case No. 116/2024, wherein the appellants herein had sought for an ad-interim injunction restraining the opposite parties/defendants, their men, agents, workmen and associates from disturbing the peaceful possession over the suit land, and/or doing any lawful works of the plaintiffs/petitioners, further occupation of the Schedule- E, F, G, H, I, J, K, L, and M lands illegally by the opposite Page No.# 4/7

parties/defendants and in making any structures whether commercial or residential or changing the nature and character of the Schedule lands till the disposal of the suit.

5. It is seen from the records that pursuant to the filing of the said suit, the learned Trial Court was of the view that no case for an urgent relief under Order XXXIX Rule 3 of the Code was made out. The learned Trial Court further observed that no photographs of the alleged constructions undertaken have been filed to buttress the claim and as such, it was the opinion of the learned Trial Court that before passing any order of injunction, the learned Trial Court would hear both the parties. Accordingly vide an order dated 28.03.2024, the learned Trial Court had issued notice to the opposite parties/the respondents herein thereby fixing the date on 23.04.2024.

6. On 23.04.2024, the respondents herein had appeared and filed a petition being petition No. 1181/2024 seeking time for filing written objection. The appellants herein filed another petition being petition No. 1161/2024 to bring on record certain documents and further sought for urgent relief. The prayer for bringing on record certain documents was allowed. However, the learned Trial Court was of the view that no order to stop the alleged constructions can be passed at that stage which was reflected in the order dated 23.04.2024. Being aggrieved, the appellants have approached this Court by filing the present appeal. At this stage, it is relevant to observe that along with the appeal, no application was filed before this Court for injunction.

7. This Court heard the learned counsels appearing on behalf of the parties and given its anxious consideration to the materials on record.

Page No.# 5/7

8. At the outset, it is relevant to observe that there was no application for injunction filed before this Court. However, inadvertently the learned Coordinate Bench of this Court vide an order dated 08.05.2024 admitted the appeal and further directed that till the returnable date, no construction works shall be undertaken over the Schedule E to M lands. The said interim order thereupon has been continuing.

9. Mr. S. Sinha, the learned counsel appearing on behalf of the respondents submitted that in the said suit as well as in the injunction proceeding, the respondents herein, who are the defendants/opposite parties, have filed their written statement as well as the written objection.

10. Taking into account that there is already an injunction proceeding pending before the learned Trial Court wherein written objections have been filed, it is the opinion of this Court that it would not be proper to maintain two parallel injunction proceedings, one before the learned Trial Court and the other before this Court more so when the appellants had approached this Court at the initial stage, being aggrieved at the non granting of an ad-interim ex-parte injunction. It is also the opinion of this Court that the injunction application so filed before the learned Trial Court is required to be disposed of at the earliest, taking into account the submissions made by learned counsels appearing on behalf of the appellants as well as the respondents.

11. Accordingly, the instant appeal stands disposed of with the following observations and directions:

(i) This Court taking into account that an injunction proceeding being Misc(J) Page No.# 6/7

Case No. 116/2024, being pending before the Court of the learned Trial Court i.e. the Court of the learned Civil Judge (Senior Division), Kamrup, Amingaon is not inclined to further pursue with the instant appeal. Accordingly, this Court disposes of the instant appeal with a direction to the learned Trial Court i.e. the Court of the learned Civil Judge (Senior Division), Kamrup, Amingaon to dispose of the said injunction application at the earliest.

(ii) It has been submitted by Mr. S. Sinha, the learned counsel appearing on behalf of the respondents that the next date is fixed on 11.04.2025. This Court is of the opinion that the date for the purpose of the injunction proceedings is required to be preponed. Accordingly, this Court directs the learned Trial Court i.e. the Court of the learned Civil Judge (Senior Division), Kamrup, Amingaon to prepone the date of hearing of the injunction proceedings and dispose the same at the earliest.

(iii) This Court directs both the parties to appear before the learned Trial Court i.e. the Court of the learned Civil Judge (Senior Division), Kamrup, Amingaon on 03.03.2025. Taking into account the business, the learned Trial Court shall fix a date for hearing of the injunction application being Misc (J) Case No. 116/2024 and thereupon dispose of the same at the earliest, and preferably on or before 11.04.2025.

(iv) This Court further taking into account that there is an order passed on 08.05.2024, whereby there was a direction that no construction works shall be undertaken over the Schedule E To M lands, is of the opinion that the said order is required to be continued till the disposal of the injunction application being Misc (J) Case No. 116/2024 for the ends of justice. Accordingly, till the disposal of Misc (J) Case No. 116/2024, there shall be maintenance of status quo as Page No.# 7/7

regards constructions in respect to the properties described in the Schedules to the plaint.

12. Before parting with the record, this Court observes that the learned Trial Court i.e. the Court of the learned Civil Judge (Senior Division), Kamrup, Amingaon shall dispose of the said injunction proceeding without being influenced by any of the observations made herein above.

JUDGE

Comparing Assistant