Madhab Chandra Das vs Palash Bhuyan And 2 Ors.

Sudhanshu Dhulia, CJ

Heard Mr. N.N. Karmakar, learned counsel for the appellant. Also heard Mr. S.N. Sarma, learned senior counsel assisted by Mr. K. Kalita, learned counsel for the respondent Nos.1 and 2.

This writ appeal has been filed against the order dated 23.02.2022 passed by the learned Single Judge in I.A.(Civil) No.245/2022 whereby the interim order dated 16.12.2021 passed in WP(C) 6849/2021 was vacated.

In a title suit, being Title Suit No.9/1989 (later on renumbered as Title Suit 40/1989), the present appellant was the sole defendant. The suit was decreed in favour of the plaintiff in the year 1993. Thereafter, the defendant (present appellant) had preferred a title appeal (Title Appeal No.29/1993) which was dismissed by order dated 17.05.2006 by the learned trial Court. Thereafter, a second appeal was filed before this Court by the present appellant which was also dismissed. After the dismissal of the second appeal, the legal heirs of the plaintiff (respondent Nos.1 and 2 herein) had instituted execution proceeding before the trial Court. During the proceedings, the learned trial Court passed an order on 16.11.2021 holding that the degree passed in the year 1993 as executable and directing the judgment debtor (present appellant) to vacate the suit land. This order was challenged by the present appellant in WP(C) 6849/2021. In the said writ petition, the learned Single Judge passed an order on 16.12.2021 which reads as under:

“Heard Mr. N. N. Karmakar, learned counsel for the petitioner and Mr. K. Gogoi, learned Additional Senior Government Advocate, Assam for the respondent No. 1.

It is stated by the petitioner that late father of the respondent Nos. 3 to 5 during his lifetime on 25.01.1989 filed Title Suit No. 9/1989 before the Court of learned Munsiff No. 1, Barpeta for recovery of khas possession by vacating the defendant and for permanent injunction in which the petitioner was the sole defendant.

The said Suit was subsequently re-numbered as Title Suit No.40/1989 in the Court of learned Munsiff No. 2, Barpeta and on 30.09.1993, the Suit was decreed in favour of the plaintiff, late father of the respondent Nos. 3 to 5.

The Court of learned Munsiff No. 1, Barpeta passed order on 16.11.2021 in Title Execution No. 57/2017 filed by the respondent Nos. 3 to 5 herein being the Decree-Holder against the petitioner, the Judgment Debtor.

Being aggrieved with the same, the petitioner/sole defendant and the Judgment Debtor of the said Title Suit No. 40/1989 (Title Suit No. 9/1989 old), preferred this writ petition stating that the said Suit was barred by jurisdiction as the plaintiff of the said Title Suit No. 40/1989 admitted the fact that he was dispossessed from the property in January, 1987 whereas, the said plaintiff during his lifetime filed the said Title Suit No. 40/1989 (Title Suit No. 9/1989 old) only in the month of January, 1989, which was barred by the statutory provisions of Section 6 (2) of the Specific Relief Act, 1963. Hence, this writ petition.

Issue notice, returnable by 27.01.2022.

As Mr. K. Gogoi, learned Additional Senior Government Advocate, Assam, has accepted the notice on behalf of the respondent No. 1, no formal notice need to be issued to the said respondent.

Petitioner shall serve requisite extra copies of this writ petition including the annexures appended thereto to Mr. K. Gogoi, learned Additional Senior Government Advocate, Assam during the course of the day, obtaining necessary acknowledgment from him in that regard.

Petitioner shall take steps for service of notices on the respondent Nos. 2 to 5 by registered post with A/D by today itself, providing their correct and proper addresses with requisite postal stamps.

In the interim, till the returnable date, i.e., 27.01.2022, further proceeding of said Title Execution No. 57/2017 arising out of Title Suit No. 40/1989, noted above, pending before the Court of learned Munsiff No. 1, Barpeta shall remain suspended.

Maintainability of this writ petition has been kept open and shall be considered at the time of its admission.

List accordingly.”

Thereafter, the present respondent Nos.1 and 2 filed I.A.(Civil) 245/2022 for vacating the aforesaid interim order passed in the writ petition. The learned Single Judge has vacated the interim order passed on 16.12.2021 by order dated 23.02.2022, which is impugned in the present appeal. The operative portion of the order dated 23.02.2022 reads as under:

“13. As there is prima facie materials in the case which unerringly projects that there are suppression of material facts on the part of the writ petitioner while invoking the extraordinary, discretionary and equitable jurisdiction of this Court in that the writ petitioner has not stated the events which occurred in the interregnum after delivery of the judgment and decree dated 30.09.1993 and 14.10.1993 passed in Title Suit no. 40/1989; the judgment and order dated 17.05.2006 passed in Title Appeal no. 29/1993; and the judgment and order passed on 25.07.2016 passed in RSA Case no. 57/2017, it is clearly demonstrated that the writ petitioner, in obtaining the interim order, has suppressed those material facts. Had those facts been pleaded and placed before the Court while preferring the writ petition, there would not have arisen any occasion to pass such an interim order as the remedy resorted through the writ petition is not the proper remedy under the law. In such view of the matter, this Court does not find any justification to continue the operation of the interim order dated 16.12.2021 passed in the connected writ petition, W.P.[C] no. 6849/2021 for any further period. Consequently, this interlocutory application seeking vacation of the interim order dated 16.12.2021 passed in the connected writ petition, W.P.[C] no. 6849/2021 is allowed. Accordingly, the interim order dated 16.12.2021 stands vacated. It is needless to state that executing Court may proceed with the proceedings of Title Execution Case no. 57/2017 in accordance with law.”

From a perusal of the aforesaid order, it is very clear that the order is interlocutory in nature as none of the issues raised in the writ petition has been decided and the matter is still pending consideration before the learned Single Judge.

In view of the above, we are not inclined to entertain the present appeal and accordingly, the same is dismissed with a request to the learned Single Judge to decide the writ petition as expeditiously as possible.