Rustom Khan vs State Of West Bengal And Others

Prakash Shrivastava, CJ

By this appeal the writ petitioner has challenged the interlocutory order dated 25.10.2021 passed by the learned Single Judge in WPA 14422 of 2021

whereby learned Single Judge has expressed that prayer for ad interim order of injunction cannot be decided without exchange of affidavits.

The submission of learned Counsel for the appellant is that he is already having a decree of permanent injunction in the civil suit and that the

execution proceedings are pending thereof in the meanwhile the appellant should be allowed to access the land in dispute because the crop is at the

harvesting stage. He has submitted that instead of taking action to protect the appellant, the police has initiated proceedings against him by issuing

show cause notice dated 29.09.2021.

Learned Counsel for the respondents has opposed the appeal and has submitted that the interlocutory order under challenge is not in the nature of

judgment, therefore, the appeal is not maintainable and that the appellant cannot resort to the writ remedy after already availing execution remedy.

Having heard the learned Counsel for the parties and perusal of the record, it is noticed that both the private parties are setting up their respective

claim for the land in question. The petitioner is relying upon the ex parte decree in Title Suit No. 49 of 2004 whereas at the instance of the respondent

No. 4 the Title Suit No. 175 of 2020 is pending. In view of the facts disclosed in the writ petition and keeping in view the background of the litigation

between both the parties, learned Single Judge has rightly observed that matter cannot be decided without exchange of affidavits. So far as notice

dated 29.09.2021 is concerned that is only for maintaining peace in terms of Section 107 of the Cr.P.C.

That apart, in terms of the judgment of the Hon’ble Supreme Court in the matter of Shah Babulal Khimji vs. Jayaben D. Kania and another,

AIR 1981 SC 1786 an order deciding a controversy affecting valuable right of one of the parties can be treated as judgment within the meaning of the

letters patent.

In the above background we are of the opinion that order of learned Single Judge does not require any interference. Since in the impugned order the

prayer for interim order of injunction has not been rejected, therefore, we are of the opinion that the appellant has remedy to make a prayer for interim

order or final decision before the learned Single Judge. To expedite the matter private respondent is directed to file the affidavit-in-opposition before

the leaned Single Judge within two weeks hence, if not already filed. We make it clear that we have not expressed any opinion on the merits of the

case or about the maintainability of the writ petition. Since we find no reason to interfere in the order of the learned Single Judge, therefore, the appeal

is dismissed.