Manimala Ghosh vs Prafulla Kumar Ghosh and Another

Nripendra Kumar Bhattacharyya, J.—Heard the submissions of the learned senior advocate for the petitioner, Mr. S.P. Roy Chowdhury with Ms. Rani Srimal and the learned advocate for the opposite party Mr. Sudipto Maitra appearing with Mr. S. Pachhal.

Considered the materials on record.

By this Revisional application u/s 115 of the Code of Civil Procedure, the plaintiff as petitioner has challenged Order No.3 dated 7th August, 1995 passed by the learned District Judge, Howrah in Misc. Appeal No. 153 of 1995. The matter arises in the background of the case that the plaintiff, petitioner herein, filed a suit for declaration of title and for mandatory injunction in the Court of the learned Munsif, Fourth Court, Howrah where it has been registered as Title Suit No. 177 of 1995. In that suit, the plaintiff also made an application under Order 39, Rules 1 and 2 of the CPC and the learned Trial Court passed an ad- interim Order of status quo, by his Order No.4 dated 12th July, 1995. That order was appealed against by the defendants before the learned District Judge, Howrah where it has been registered as Misc. Appeal No. 153 of 1995. In connection with that appeal, an application under Order 41, Rule 5 of the Code of the Civil Procedure was filed praying for stay of operation of the Order passed by the learned Munsif and the learned Appeal Court stayed the operation of the order of the learned Munsif till the disposal of the Misc. Appeal. Against that, the present Revision has been filed by the plaintiff.

At the very outset, Mr. Maitra took a preliminary objection that the Revision is not maintainable inasmuch as the Appeal Court by granting stay acted as the original Court and an appeal against such an order is preferable under Order 43, Rule l(r) of the Code of Civil Procedure.

In support of his submission, Mr. Maitra relied on two decisions of this Court-one Single Bench and the other Division Bench, to wit, Gnan Singh v. Gulzar Singh reported in 1988(1) Cal LJ 389 and Prabal Chandra Mondal v. State of West Bengal reported in 1992(1) Cal LJ 454. In both the decisions, this Court has held that against an order of injunction passed in appeal, a Miscellaneous Appeal is maintainable before this Court and not a Revision; because, the Appeal Court there acted as original Court. The same point is pending before the Special Bench awaiting adjudication.

But, this is not a case like that. In this case, no application before the Appeal Court was made under Order 39, Rule 1. In those two cases, as referred hereinabove, orders were passed by the Appeal Court, upon an application under Order 39, Rules 1 and 2 of the Code of Civil Procedure. But, in the instant case, the Appeal Court stayed the operation of the order upon an application of the appellants under Order 41, Rule 5 of the CPC and as such, in my view, those two decisions are of little relevance in this case; and I, accordingly, overrule the preliminary objection as has been taken by Mr. Maitra.

At this point of time, both Mr. Roy Chowdhury and Mr. Maitra made a suggestion before this Court that as the main appeal is pending before the learned District Judge, a time-bound direction should be given to the learned District Judge for disposal of the appeal. Accordingly, the learned District Judge is directed to hear out the main appeal being Misc. Appeal No. 153 of 1995 within three weeks from the date of service of the copy of this order which is to be served by. a special messenger at the cost of the opposite parties which is to be put in by tomorrow. Liberty is given to the learned advocates for the parties to take down the gist of this order and to communicate the same to the court of the learned District Judge and the learned District Judge is directed to act on such communication.

I make it quite clear that I have not entered into the merits of the case. The order is passed without prejudice to the rights and contentions of the parties which are to be made out before the Appeal Court.

This disposes of the Revisional application.

There will be no order as to costs.