Amal Ghosh vs Arijit Sarkar & Anr

This appeal arises from an order no. 24 dated March 14, 2019 passed by the learned Civil Judge (Senior Division), Bishnupur, Bankura in Title Suit No. 15 of 2017 by which an application for temporary injunction was rejected.

The plaintiff/appellant filed a suit for declaration of title and permanent injunction alleging that the defendants/respondents taking advantage of the adjoining plot, which they possess, are trying to make construction over his plot of land without any permission and/or sanction from the competent authority. It is not in dispute that an ex parte ad interim order of injunction was passed by the trial Court and later on an application under Order XXXIX Rule 4 of the Code of Civil Procedure was taken out for variation, vacation and/or setting aside of the said ex parte ad interim order of injunction on the alleged suppression of material facts.

At the very outset, we should record that merely on the premise that the Court did not find any prima facie case made out by the plaintiff/appellant, does not invite allowing an application under Order XXXIX Rule 4 of the Code consequently. Order XXXIX Rule 4 of the Code has a different purpose and in the event, the ex parte order is passed suppressing the material fact, the Court may recall, vary, modify and/or set aside such order without venturing to go into the merit of the case made out in the injunction application.

In the instant case, the learned Judge has proceeded to decide the application for temporary injunction along with an application under Order XXXIX Rule 4 of the Code and since it is held that the plaintiff/appellant has failed to make out a prima facie case, not only the application for temporary injunction was dismissed but consequently the application under Order XXXIX Rule 4 was allowed.

Be that as it may, we are concerned with the rejection of an application for temporary injunction on the findings recorded in the impugned order. It is to be borne in mind that mere suppression of every fact does not entail variation and/vacation of an ex parte ad interim order of injunction. There is a stern distinction between suppression of fact and suppression of material facts. Every facts which do not constitute a part of the cause of action, if not disclosed, may not invite the variation and/or vacation of the ex parte ad interim order but if the fact which has a material bearing and intricately related with the cause of action if not disclosed, the Court may vary and/or recall the order as a person cannot be allowed to reap the benefit by suppressing the material fact.

In the instant case, the trial Court held that there is a dividing pathway in between a plot owned by the plaintiff and defendant and, therefore, the allegations of the plaintiff that both the plots are contiguous, is not correct.

The learned Advocate appearing for the plaintiff/ appellant produced the sketch map prepared by the Advocate Commissioner appointed by the trial Court to show that the pathway only stands on the northern side of the suit plot whereas the plot owned by the defendant is situated on the western side. According to him the said finding is factually wrong and, therefore, the Court should not have dismissed the application for temporary injunction At the first blush, we were impressed with such submission after looking into the certified copy of the reports submitted by the Advocate Commissioner but after looking at the material, we do not find there is any necessity to interfere with the ultimate decision taken by the trial Court. It is a case of alleged encroachment over the property owned by the plaintiff and, therefore, assumes a boundary dispute. Whether the defendants have encroached upon the property owned by the plaintiff is a matter of evidence, required to be decided at trial obviously after relay and survey of both the plots of land. The additional fact, which we feel, is sufficient enough to uphold the ultimate decision of the trial Court is that the boundary wall has already been constructed which appears to be the pivotal allegation in the plaint. Obviously if the plaintiff succeeds, the Court is not powerless to pass an appropriate order on the mitigating circumstances.

We thus do not find any merit in the instant appeal.

The appeal is thus dismissed. However, there shall be no order as to costs.

In view of the dismissal of the appeal the connected application being CAN 9403 of 2019 is accordingly dismissed.

Urgent Photostat Certified Copy of this order be given to the parties, if applied for, within three days from the date of such application.