Samser Ali And Others vs Sri Santosh Sharma And Others

Sabyasachi Bhattacharyya, J

The present challenge has been preferred by the defendants in a suit primarily for recovery of possession, against an order whereby a miscellaneous appeal preferred by the petitioners against an order of temporary injunction in the form of status quo was dismissed.

Learned counsel appearing for the defendants/petitioners argues that by the order impugned before the appellate court, the learned trial Judge, while hearing the temporary injunction application finally, mechanically made absolute the ad interim order of status quo granted earlier, without independently assessing the respective cases of the parties or adverting to the several aspects of the matter.

It is submitted that the ad interim and the final hearing of temporary injunction application stages are distinct and different and at the final hearing the learned trial Judge ought to have adverted to the arguments of the parties and the materials on record independent of the observations made at the ad interim stage.

Thus, the trial court's order was vitiated, which was again affirmed by the appellate court without entering into such aspect of the matter.

Learned counsel further points out that the ad interim order of status quo passed by the learned Trial Judge at the inception, which was made absolute by the temporary injunction order in the form of status quo by the Trial Court, was also palpably erroneous in the sense that admittedly the plaintiffs/opposite parties have filed a suit for recovery of possession from the defendants/petitioners, thereby explicitly admitting the possession of the petitioners whereas the learned trial Judge, purportedly on the basis of the materials before him, came to the conclusion that the plaintiffs are in possession and would suffer irreparable loss and injury if th,ey are forcibly dispossessed from the suit property.

Thus, the impugned judgment is erroneous from all perspectives.

Learned counsel appearing for the plaintiffs/opposite parties controverts the submissions of the petitioners and submits that the plaintiffs/opposite parties have all along been the owners and in possession of the suit property and were forcibly dispossessed therefrom.

However, upon hearing learned counsel for the parties, the court finds substance in the contention of the petitioners on all counts.

The learned appellate Judge, by the impugned judgment, merely paid lip-service to the essential tests for grant of injunction, namely prima facie case, balance of convenience and inconvenience and irreparable loss and injury, without adverting to or applying its judicial mind to the merits of the order impugned before the appellate court.

The learned appellate Judge, going beside the point, discussed the meaning of an order of status quo regarding nature, character and possession being to preserve such nature, character and possession, which is rather circular logic.

As such, the appellate court is found deficient in adverting independently to the legal and factual aspecs involved in the matter.

The learned Trial Judge, by the order impugned before the appellate court, also mechanically affirmed the status quo order granted at ad interim stage without independent consideration befitting a court taking up the final hearing of a temporary injunction application.

That apart, even the ad interim order, which was made absolute by the order of temporary injunction by the learned trial Judge, was deficient since it ran contrary to the grain of the suit itself.

Since the plaintiffs/opposite parties have filed a suit for recovery of possession, thereby explicitly admitting the possession of the defendants/petitioners, whatever might be the alleged character of such possession, there was no scope of the learned Trial Judge holding that the plaintiffs are in possession and granting status quo, purportedly to protect such possession of the plaintiffs.

Hence, the impugned judgment suffers from palpable dearth of jurisdiction and was passed in exercise of jurisdiction not vested in the appellate court.

Thus, for the ends of justice, the matter is required to be remanded to the learned Trial Judge for a fresh hearing of the temporary injunction application and disposal of the same on merits.

In the meantime, since initially the plaintiffs/opposite parties had been enjoying some form of injunction by way of status quo, it would only be appropriate that the interests of the parties are protected and the suit property is preserved.

Accordingly, CO No. 233 of 2025 is allowed on contest, thereby setting aside the impugned judgment dated August 30, 2025 passed by the learned District Judge at Jalpaiguri in Miscellaneous Appeal No. 23 of 2025 as well as order no. 14 dated June 12, 2025 passed by the learned Civil Judge (Junior Division), Second Court at Jalpaiguri in Title Suit No. 594 of 2024 and remanding the temporary injunction application to the learned Trial Judge for being heard and disposed of afresh on the materials already on record by passing a reasoned order and by application of independent judicial mind.

It is expected that such disposal shall take place as expeditiously as possible, preferably within six weeks from the date of communication of this order to the learned Trial Judge.

The parties shall remain restrained by an order of injunction from selling, transferring, alienating and/or from creating any third party interest in respect of the suit property and/or from making any construction or excavation on the suit property in any manner whatsoever till the disposal of the temporary injunction application afresh by the learned Trial Judge.

It is made clear that the above interim injunction is granted in aid of the final relief claimed in the injunction application and shall not in any manner be deemed to be final or conclusive at any further stage of the proceeding, including the hearing of the temporary injunction application and/or any subsequent stage of the suit.

CAN 1 of 2026 is consequentially disposed of as infructuous.

There will be no order as to costs.

Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.