Shelter Sales Private Limited vs Sri Wangdi Sherpa

This First Miscellaneous Appeal is directed against an order being no. 2 dated 28th September, 2016 passed by the learned Civil Judge, Senior Division, Jalpaiguri, in Partition Suit No. 111 of 2016 at the instance of the defendant/appellant.

By the impugned order, the parties were directed to maintain status-quo in respect of title, possession, nature and character of the suit property till 28th November, 2016. Such ad-interim order of injunction was passed in the partition suit filed by the plaintiff.

The instant appeal was admitted for hearing under the provision of Order 41 Rule 11 of the Code of Civil Procedure.

At the time when an application for interim stay of the operation of the impugned order filed by the appellant was taken up for hearing by this Court, we are requested by the learned counsel appearing for the parties to dispose of this appeal on the materials available before this Court.

We are also informed by the learned counsel appearing for the parties that the papers which are necessary for disposal of the appeal arising out of an adinterim order of injunction passed on the plaintiff''s application for interim injunction are annexed to the stay application. We are also informed that the limited ad-interim order of injunction which was passed by the learned Trial Judge was subsequently extended from time to time, at least on four occasions, and against extension of the ad-interim order of injunction on each occasion, separate appeal was filed. Thus, altogether five appeals were filed by the appellant in connection with the order of ad-interim order of injunction passed by the learned Trial Judge and the extensions which were granted by the learned Trial Judge subsequently.

Since common question of law and fact are involved in all these appeals, we have decided to dispose of all these appeals and the applications filed in connection therewith by a common order.

Since all the papers which are necessary for disposal of all these appeals are now before us, we have decided to dispose of all these appeals by dispensing with the requirement of filing paper books in these appeals.

Heard the learned counsel appearing for the parties. Considered the materials on record.

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

Here is the case where we find that the plaintiff filed a suit for partition claiming his half share in the suit property. It is alleged by the plaintiff that he purchased 50% share from the erstwhile co-sharer of the suit property by virtue of the sale deed which was presented for registration before the Sub- Registrar, Jalpaiguri, on 19th April, 2005. It is, further, alleged therein that the registration of the said title deed could not be completed due to nonpayment of the requisite stamp duty as per the assessment made by the concerned Registrar. Subsequently, the plaintiff on 20th July, 2016 applied before the DIGR, Range-VIII, Jalpaiguri, for assessment of the market value so that the stamp duty which are required to be paid on such assessment can be paid by the plaintiff for completion of registration of the said document. The plaintiff further claims that the possession of the land which he allegedly purchased through the said sale deed was handed over to him by his vendor. Since subsequently, the defendant being his co-sharer reused to partition the suit property denying the right of the plaintiff, the plaintiff filed the instant suit for partition. In such a suit, the plaintiff has also prayed for temporary injunction for restraining the defendant and his men and associates from transferring, changing the nature and character of the suit property till the disposal of the suit. Ad-interim order of injunction in similar form was also prayed by the plaintiff in the said suit.

Learned Trial Judge considering the nature of the suit and the khazna receipt, produced by the plaintiff showing payment of land revenue to the government by the plaintiff, passed an ad-interim order of injunction directing the parties to maintain status-quo in respect of title, possession, nature and character of the suit property as on the date of passing of the impugned order till 28th November, 2016.

We have already mentioned above that the said ad-interim order of injunction was extended repeatedly from time to time, at least for four occasions, and the other appeals are directed against extension of interim order which were granted by the learned Court below.

Fact remains that the defendant has already entered appearance in the suit. He has also filed an application challenging the maintainability of the suit by inviting the learned court below to decide the said maintainability issue as per Order 14 Rule 2 of the Code of Civil Procedure. However, the said application was rejected by the learned Trial Judge. The defendant has not yet filed any comprehensive objection against the plaintiff''s application for temporary injunction.

Mr. Banerjee, learned advocate, appearing for the defendant/appellant submits that his client does not admit the legality and/or effectiveness of the deed through which the plaintiff is claiming title of the suit property. He further submits that the title deed through which the plaintiff is claiming title does not pertain to the suit property.

Such submission of Mr. Banerjee is, however, refuted by Mr. Bhattacharya, learned advocate, appearing for the plaintiff/respondent.

Since the defendant has already appeared in the suit, we feel that justice will be subserved, if instead of deciding this appeal by discussing the merit thereof at this stage, we request the learned Trial Judge to dispose of the plaintiff''s application for temporary injunction within a time bound period, after exchange of affidavits between the parties.

We, thus, direct the defendant to file affidavit-in-opposition to the plaintiff''s application for temporary injunction in course of this week.

Leave is granted to the plaintiff/ respondent to file reply to the said affidavit within a week thereafter.

We request the learned Trial Judge to dispose of the plaintiff''s application for temporary injunction by the end of April, 2017.

The time schedule which is fixed hereinabove should be regarded as peremptorily fixed by this Court.

Considering the nature of the suit, we direct that the ad-interim order of injunction which was passed by the learned Trial Judge will continue till the disposal of the plaintiff''s application for temporary injunction.

We, further, make it clear that the learned Trial Judge while disposing of the plaintiff''s application for temporary injunction will not be influenced by the interim arrangement which is made by this Court hereinabove, as this arrangement is not made after considering the merits of the plaintiff''s application for temporary injunction.

The learned Trial Judge is, thus, absolutely free to decide the plaintiff''s application for temporary injunction on his own merit in accordance with his own wisdom without being influenced by any of the observations made hereinabove.

All the appeals and the applications, filed in connection with these appeals, are disposed of.