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Judgment
Jyotirmay Bhattacharya, J.—This first miscellaneous appeal is directed against an order being No. 13 dated 31st January, 2013 passed by the Learned Trial Judge by allowing the plaintiffs application for temporary injunction and by rejecting the application for vacating ad-interim order of injunction filed by the defendant No. 1 under Order 39 Rule 4 of the Code of Civil Procedure. The defendant No. 1 is the appellant before us. He has challenged the legality of the impugned order in this first miscellaneous appeal.
Paper books which are filed by the appellant in Court today be kept with the record.
Let it be recorded that a copy of the paper book has already been served upon the learned advocate of the respondents.
Let us now consider the merit of the instant appeal in the facts of the instant case.
The plaintiffs/respondents filed a suit for partition of the suit property claiming their 3 annas share therein. The suit property comprises of 1 acre 84 satak of land lying at L.R. Dag No. 1035 at Mouza - Uttarbard in the District of Paschim Medinipur. Though the plaintiffs disputed the title of the defendant No. 1 in the suit property but no relief has been claimed in the said suit for any declaration that the defendant is not a co-sharer as he has no interest in the suit property.
The plaintiffs alleged that the defendant No. 1 started raising construction on the best portion of the suit property abutting the metal road. As such, the plaintiffs filed an application for temporary injunction under Order 39 Rule 1 and 2 of the Code of Civil Procedure for restraining the defendant No. 1 and the defendant No. 3 from raising any construction in the suit property during the pendency of the suit. The plaintiffs also sought for ad-interim order of injunction in similar terms.
The Learned Trial Judge by his order dated 25th July, 2012 passed an ad-interim order of injunction by directing the parties to maintain status quo in respect of the nature and character and possession of the suit property as it stood till 8th August, 2012.
Immediately thereafter, on the same day, on an application for local inspection filed by the plaintiffs/respondents under Order 39 Rule 7 of the Code of Civil Procedure, an advocate commissioner was appointed for holding local inspection at the site for ascertaining as to whether any construction has been made by the appellant in the suit premises or not and to submit a report preferably within 15 days from the receipt of the writ of commission. Pursuant to such order passed by the Learned Trial Judge, local inspection was held within 5 days thereafter. A report was also submitted by the Learned Commissioner indicating therein the extent of construction raised by the defendant No. 1 over the suit property.
On receipt of the notice regarding ad-interim order of injunction passed by the Learned Trial Judge, the defendant No. 1 appeared in the said suit and filed an application for vacating ad-interim order of injunction passed by the Learned Trial Judge.
It was stated therein that he had purchased 32 decimals of land out of 1 acre 84 satak of land from the co-sharer and had raised construction over 4 decimals of land, after obtaining building plan sanctioned from the panchayat concerned. It was further stated therein that the construction has substantially progressed and it is almost complete excepting the casting of roof. He thus, prayed for vacating the interim order so that he can complete the incomplete construction. It was further stated therein that the State Government has refused to renew his licence unless he completes the construction of a go-down according to government specification for storing 1000 metric ton of food grains therein.
The Learned Trial Judge disposed of both the said applications i.e. the application for temporary injunction filed by the plaintiffs/respondents and the application under Order 39 Rule 4 of the Code of Civil Procedure filed by the defendant No. 1/appellant. The plaintiffs'' application for temporary injunction was allowed. The defendants'' application for vacating the interim order was rejected. The defendants were restrained from making any construction over the suit property till the disposal of the suit. The Officer-in-charge of Daspur-I Police Station was directed to personally visit the suit property to promulgate the said order and implement the same and for submission of the report.
The Learned Trial Judge while disposing of those two applications considered the respective pleadings of the parties and held that the suit property being admittedly an undivided property, every co-sharer has proportionate right over every grain of dust. The Learned Trial Judge further held that so long the property remains undivided, the co-sharer possesses such property for himself as well as the representative of the other co-sharers. He thus, held that simply because a co-sharer is in exclusive possession of a portion of the suit property, he cannot be allowed to raise construction over a portion of the suit property inasmuch as such a co-sharer possesses the said portion of the suit property as a representative of all the co-sharers.
Thus, relying upon the reported decisions cited by the plaintiffs, i.e., one in I. Gouri and Others Vs. C.H. Ibrahim and Another, and another in Om Prakash and others Vs. Chhaju Ram, , the Learned Trial Judge held that the plaintiffs have succeeded in proving a strong prima facie case for going for trial. As such, the injunction order was passed and the defendants'' application for vacating the interim order of injunction was rejected.
Let us now test the legality of such an order in the facts as stated above.
We have already narrated above the pleadings of the parties. We have examined the Commissioner''s report. On perusal of the Commissioner''s report, we have seen that the local inspection was held immediately, i.e. within five days from the date of passing of the ad-interim order of injunction. The Commissioner has submitted a report indicating therein that substantial construction has already been made by the defendant No. 1/appellant over the suit property. The learned Commissioner has also mentioned in his report that the construction upto the lintel level has already been completed and only casting of the roof is yet to be completed.
In this context, we have to examine the legality of the impugned order.
Here is the case where we find that though the learned Trial Judge while passing the ad-interim order of injunction as well as the order of temporary injunction, considered the prima-facie case of the plaintiff, but he has not considered the other two principles for grant of injunction, i.e. balance of convenience and inconvenience of the parties and irreparable loss and injury. It has already been held by the Hon''ble Supreme Court in the case of Shib Kumar Chadda Vs. Municipal Corporation of Delhi reported in 1993 S.C.C. (3), 161 and in the case of Morgan Stanley Mutual Fund Vs. Kartick Das, that injunction cannot be passed either in the ad-interim form or in the temporary form unless all the three tests for grant of injunction are satisfied.
Here is the case where we find that though the plaintiff resides in a portion of the suit premises, but still then he did not come forward for seeking injunction for restraining the said defendant from raising any construction over the suit property though he had noticed that the defendant No. 1 was taking steps for raising construction over a portion of the suit property. From the Commissioner''s report, we have seen that not only the construction has commenced but construction has progressed substantially and it is complete upto the plinth level, only casting of roof is yet to be completed. The extent of construction has also been specified in the Commissioner''s report. Length, breadth and height of the rooms constructed therein by the defendant No. 1 have also been mentioned in the Commissioner''s report.
When substantial construction was allowed to be raised by the plaintiff in our view, the plaintiffs cannot now seek injunction for restraining the said defendant No. 1 from completing the said construction. This conclusion we draw by following the principles as laid down by the Hon''ble Supreme Court in the case of Mandali Ranganna and Others etc. Vs. T. Ramachandra and Others, wherein the Hon''ble Supreme Court has held that grant of injunction is an equitable relief and as such, if a person had kept quiet for a long time and allowed another to deal with the property exclusively, ordinarily he would not be entitled to an order of injunction. The Hon''ble Supreme Court, thus, in an identical situation held that interest of justice will be subserved, if while allowing the party to carryout construction of the building, a condition is imposed to the extent that such construction will be made subject to the ultimate decision of the suit and the hearing of the suit is expedited. Identical view was expressed by a learned Single Judge of this Court almost in an identical situation, in the case of Soumendra Kumar Dutta and Another Vs. Sree Sridhar Jew and Others, .
That apart we find that though the appellant has purchased 32 decimals of land but he is raising construction only on 4 decimals of land. Considering the area of this land on which such construction is being raised, we cannot hold that the relief claimed in the suit may ultimately be frustrated if the appellant is allowed to complete the incomplete construction without permitting him to extend the area of such construction.
Thus, in the facts of the present case, we respectfully disagree with the findings of the learned Trial Judge that this is a fit case where injunction should be granted in restraining the defendant No. 1/appellant from completing the construction already made therein.
We, thus, modify the impugned order by permitting the defendant No. 1/appellant to complete the incomplete construction which has already been made by the said defendant over a portion of the suit property without further extending the area of such construction and without claiming any special equity for such construction in the suit property.
Needless to mention here that such construction should be raised strictly in compliance of the sanctioned plan issued by the Panchayat authority.
The parties are also directed to maintain status-quo with regard to nature and character of the suit property and/or possession of the parties in the remaining part of the suit property till the disposal of the suit.
The learned Trial Judge is also requested to dispose of the said suit as expeditiously as possible without granting any unnecessary adjournment to any of the parties.
The appeal is disposed of.
In view of the disposal of the appeal, no further order need be passed on the interlocutory application filed by the appellant being CAN 2463 of 2015. The said application is also dimmed to be disposed of.
Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.
Debi Prosad Dey, J.
I agree.