Ganesh Chandra Pan vs Lakshmi Rani Pan

Jyotirmay Bhattacharya, J.—This first miscellaneous appeal is directed against an order being No. 7 dated 20th June, 2013 passed by the learned Civil Judge (Senior Division), Kalna in Title Suit No. 61 of 2013 at the instance of the plaintiffs/appellants.

By the impugned order, the application under Order 39, Rule 4 read with Section 151 of the Code of Civil Procedure filed by the defendant nos. 1(a) to 1(c) was allowed. As a result, the ad interim order of injunction which was passed by the learned Trial Judge in the suit on 14th May, 2013 vide Order No. 3 was vacated. The instant first miscellaneous appeal is directed against the said impugned order passed by the learned Trial Judge.

At the time when the application for interim injunction filed by the plaintiffs/appellants was taken up for hearing, we were requested by the learned counsel appearing for the parties to dispose of the appeal itself on merit. We are informed by the learned counsel appearing for the parties that all papers necessary for disposal of the appeal are annexed to the application for injunction and as such, we have decided to dispose of the appeal itself by dispensing with the requirement of filing paper book in this appeal.

Let us now consider the merit of the instant appeal in the facts of the present case.

The plaintiffs/appellants filed a suit for partition against their co-sharers. After filing the said suit, the plaintiffs filed an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure praying for temporary injunction so that status quo in respect of possession of the parties in the suit property and the nature and character thereof is maintained and neither party can transfer his share in the suit property to any stranger purchaser. Ad interim order of injunction in similar terms was also prayed for by the plaintiffs in the said application.

The learned Trial Judge was pleased to pass an ad interim order of injunction on 14th May, 2013 vide Order No. 3 directing the plaintiffs and the defendants to maintain status quo in respect of possession of the suit property. The parties were also restrained from transferring the suit property and/or from changing the nature and character thereof till 13th June, 2013.

Subsequently the defendant nos. 1(a) to 1(c) filed an application under Order 39, Rule 4 of the Code of Civil Procedure praying for vacation of the said ad interim order of injunction on the ground of suppression of material facts. It was stated therein that the ad interim order of injunction passed in the said suit is detrimental to the interest of ''Mahishmardini Puja'' and is also detrimental to the interest of people of Kalna and surrounding districts and the defendants. It was further stated therein that the people of Kalna worshipped the goddess of ''Mahishmardini''. It was also stated therein that the suit property is part and parcel of the Puja area over which several amusements and functions are organized. They thus claimed that if the performance of ''Mahishmardini Puja'' and the festive fair are not allowed to be organised and/or continued for a month i.e. from 1st July, 2013 to 7th August, 2013, then hardship will be caused not only to the defendants but also to the local people of Kalna and the surrounding districts. Since the said festival is one of the famous festivals in West Bengal, they prayed for vacation of the ad interim order of injunction.

The learned Trial Judge was pleased to vacate the ad interim order of injunction passed in the suit by holding that if the ''Mahishmardini Puja'' is not allowed to be performed and the festive fair is not allowed to be organized, then hardship will be caused to the applicants. The learned Trial Judge also held that the plaintiffs are guilty of suppression of material facts in the injunction application as they did not disclose that such Puja is performed on the suit property and/or such festive fair is organised on the suit property.

Let us now consider as to how far the learned Trial Judge was justified in allowing the defendants'' application under Order 39, Rule 4 of the Code of Civil Procedure in the facts of the present case.

We have already mentioned above that the ad interim order of injunction was passed by the learned Trial Judge in a suit for partition filed by the plaintiffs against their co-sharers. It is not the case of the defendant nos. 1(a) to 1(c) who are the co-owners of the suit property that they themselves will perform such Puja and/or organise festive fair on the joint property. If such Puja and/or festive fair are not organised by any of the co-sharers over the suit property, the parties to the suit cannot suffer any hardship even if performance of such Puja and/or holding of such festive fair are not allowed to be organised on the suit property. Neither ''para'' people nor the organizer of such Puja and/or festive fair has any right, title and interest over the suit property. As such, no stranger having no interest in the suit property can be allowed to perform any Puja and/or hold any festive fair on the suit property.

Since performance of such Puja on the suit property by the non-parties and/or holding of any festive fair in connection therewith by the non-parties on the suit property has nothing to do with the cause of action of the partition suit and/or the interim relief prayed for by the plaintiffs in connection therewith, we are of the view that non-disclosure of such performance of Puja on the suit property and/or holding any festive fair thereon by some non-parties during any particular period of the year does not amount to suppression of material facts affecting the merit of the plaintiffs'' application for injunction and thus the ad interim order of injunction, in our view, ought not to have been vacated.

Accordingly, we hold that the learned Trial Judge was not justified in vacating the ad interim order of injunction passed on 14th May, 2013 vide Order No. 3. The impugned order, thus, stands set aside. Ad interim order of injunction passed by the learned Trial Judge on 14th May, 2013 is, thus, restored.

Both the appeal and application for injunction being CAN 8086 of 2013 thus stand disposed of.

Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.