[Cites 3, Cited by 0]
Gauhati High Court
Page No.# 1/7 vs Bipul Tamuli And 2 Ors on 24 March, 2026
Page No.# 1/7
GAHC010058342026
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Civil)/932/2026
DAIBAKI DAS AND 9 ORS.
W/O LATE CHANDRADHAR DAS
R/O ATHGAON
RANGMAHAL
P.O.- RANGMAHAL
P.S.- CHANGSARI
DIST- KAMRUP
ASSAM
PIN-781030
2: ARABINDA DAS
S/O LATE CHANDRADHAR DAS
R/O ATHGAON
RANGMAHAL
P.O.- RANGMAHAL
P.S.- CHANGSARI
DIST- KAMRUP
ASSAM
PIN-781030
3: NARAYAN DAS
S/O LATE CHANDRADHAR DAS
R/O ATHGAON
RANGMAHAL
P.O.- RANGMAHAL
P.S.- CHANGSARI
DIST- KAMRUP
ASSAM
PIN-781030
4: KHARGESWAR DAS
S/O LATE CHANDRADHAR DAS
R/O ATHGAON
Page No.# 2/7
RANGMAHAL
P.O.- RANGMAHAL
P.S.- CHANGSARI
DIST- KAMRUP
ASSAM
PIN-781030
5: ANIL DAS
S/O LATE CHANDRADHAR DAS
R/O ATHGAON
RANGMAHAL
P.O.- RANGMAHAL
P.S.- CHANGSARI
DIST- KAMRUP
ASSAM
PIN-781030
6: NRIPEN DAS
S/O LATE KHAGEN DAS
R/O ATHGAON
RANGMAHAL
P.O.- RANGMAHAL
P.S.- CHANGSARI
DIST- KAMRUP
ASSAM
PIN-781030
7: PRADIP DAS
S/O LATE KHAGEN DAS
R/O ATHGAON
RANGMAHAL
P.O.- RANGMAHAL
P.S.- CHANGSARI
DIST- KAMRUP
ASSAM
PIN-781030
8: AKSHAY DAS
S/O LATE KHAGEN DAS
R/O ATHGAON
RANGMAHAL
P.O.- RANGMAHAL
P.S.- CHANGSARI
DIST- KAMRUP
ASSAM
PIN-781030
9: SMTI. DILIPI DAS
Page No.# 3/7
W/O LATE MATIRAM DAS
R/O ATHGAON
RANGMAHAL
P.O.- RANGMAHAL
P.S.- CHANGSARI
DIST- KAMRUP
ASSAM
PIN-781030
10: DEBOJYOTI DAS
S/O LATE MATIRAM DAS
R/O ATHGAON
RANGMAHAL
P.O.- RANGMAHAL
P.S.- CHANGSARI
DIST- KAMRUP
ASSAM
PIN-781030
VERSUS
BIPUL TAMULI AND 2 ORS.
S/O LATE SRIDHAR TAMULI
R/O NAJIRAKHAT
RANGMAHAL
P.O.- RANGMAHAL
P.S.- CHANGSARI
PIN-781030
2:KALPA JYOTI TAMULI
S/O LATE SHREEDHAR TAMULI
R/O NAJIRAKHAT
RANGMAHAL
P.O.- RANGMAHAL
P.S.- CHANGSARI
PIN-781030
3:RAJIB JYOTI TAMULI
S/O LATE SHREEDHAR TAMULI
R/O NAJIRAKHAT
RANGMAHAL
P.O.- RANGMAHAL
P.S.- CHANGSARI
PIN-781030
------------
Advocate for : MR. S BANIK
Advocate for : H BORUAH (FOR CAVEATOR) appearing for BIPUL TAMULI AND
2 ORS.
Page No.# 4/7
In
FAO Case No. 22/2026
BEFORE
HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA
ORDER
24.03.2026
[1] Heard Mr. S. Banik, the learned counsel for the applicants.
Also heard Mr. N. Patiri, the learned counsel for the
caveator/respondent No. 1.
[2] This appeal under Order XLI Rule 5 read with Section 151 of
the Code of Civil Procedure, 1908 has been preferred by the
applicants, in connection with the connected First Appeal against
Order No. 22/2026, praying for stay of operation of the order dated
19.02.2026, passed by the Court of the learned Civil Judge(Senior
Division), Kamrup, Amingaon in Misc.(J) Case No. 85/2026, arising
out of Title Suit No. 68/2026, whereby the trial court granted ex
parte ad-interim injunction restraining the present applicants from
alienating the suit land or creating any kind of encumbrance thereon
as well as dispossessing the respondent No. 1/plaintiff from the suit
land before the next date fixed by the trial court.
[3] The learned counsel for the applicants has submitted that
the impugned order was passed by the trial court in Misc.(J)Case
No. 85/2026 on 19.02.2026 and though ex parte ad-interim
injunction was granted against the present applicants and notices
were issued to the present applicants, the next date of the aforesaid
Page No.# 5/7
Misc.(J)Case was fixed on 31.03.2026, i.e. well beyond the period of
30(thirty) days, as mandated in Rule 3(a) of Order XXXIX of the
Code of Civil Procedure, 1908 in which the court had to make an
endeavour to finally dispose of the application when an injunction is
granted without giving notice to the opposite party.
[4] The learned counsel for the applicants submits that by fixing
the date of appearance/ filing written objection by the present
applicants beyond the period of 30(thirty) days, as mandated in
Order XXXIX Rule 3A, the trial court has flouted the statutory
provisions, which are incorporated in the statue for protecting the
interest of the party, which was not before the court, when the order
of ex parte ad-interim injunction was passed.
[5] The learned counsel for the applicants has cited a ruling of
the Apex Court in the case of "A. Venkatasubbiah Naidu Vs. S.
Chellappan And Others" reported in "(2000)7 SCC 695,"
wherein the Apex Court has observed that in cases where the
mandate of Order XXXIX Rule 3A of the Code of Civil Procedure,
1908 is flouted, the aggrieved party is entitled to prefer an appeal
under Order 43 Rule 1(r) of the Code of Civil Procedure, 1908 and in
appropriate case, the appellate court may grant or vacate or modify
the order of such injunction.
[6] The learned counsel for the applicants submits that the
applicants are ready to agitate their case before the trial court by
filing written objection on the next date fixed, and in the meanwhile,
are also ready to maintain status-quo in respect of the suit property.
Page No.# 6/7
[7] On the other hand, the learned counsel for the
caveator/respondent No. 1 has submitted that the respondent No. 1
may be allowed to file written objection against the interlocutory
application filed by the present applicants. He also submits that in
the meanwhile, no status-quo order should be passed as though an
ex parte ad-interim injunction was granted, however, same has been
violated by the present applicants and the respondent has also
preferred an application under XXXIX Rule 2A of the Code of Civil
Procedure, 1908 for violation of the ad-interim injunction order by
the present appellants.
[8] Since the respondents are intending to file a written
objection, they are allowed to file written objection before the next
date fixed. However, as apparently, the impugned order has been
passed by the trial court, by fixing a date beyond the period of
30(thirty) days as prescribed in Order XXXIX Rule 3A of the Code of
Civil Procedure, 1908 which has been deprecated by the Apex Court
in the judgment referred hereinabove, hence, both the parties
hereto are directed to maintain status-quo in respect of suit
property, till the next returnable date.
[9] The applicants shall take steps for issuance of notice to the
other respondents within a day from the date of this order,
returnable on 7th April, 2026.
[10] Since the next date of this interlocutory application as well as
the connected appeal has been fixed after the date which is fixed for
the cases pending before the trial court, this order passed today,
Page No.# 7/7
shall have no bearing on the trial court while dealing with the
application filed by the respondents under Order XXXIX Rule 2A, of
the Code of Civil Procedure, 1908 which is pending before it.
JUDGE
Comparing Assistant
