Sm. Bimala Saha (Nee Bag) vs Smt. Indrani Saha (Nee Iti Sarkar)

Prasenjit Mandal, J.—This application is at the instance of the defendant and is directed against the Order No. 39 dated June 28, 2006 passed by the learned Civil Judge (Junior Division), 4th Court, Howrah in Title Suit No. 92 of 2004 thereby allowing an application u/s 151 of the Code of Civil Proceedure for mandatory injunction. The plaintiff / opposite party herein instituted the aforesaid suit before the learned Civil Judge (Junior Division), 4th Court, Howrah against the petitioner herein for declaration, permanent injunction and other reliefs. The plaintiff has contended that she was married to Motilal Saha (since deceased) and they lived together at 7, Baptist Burial Ground Road, under P.S. Golabari, Howrah as husband and wife. Subsequently, the husband suffered from various ailments and ultimately, he died in 2003. After the death of the husband of the plaintiff, the defendant / petitioner herein claimed that she was also married to Motilal Saha and one daughter was born in the wedlock and she claimed the right to property left by Motilal Saha. Then the plaintiff / opposite party herein instituted a suit being Title Suit No. 92 of 2004 and she filed an application for temporary injunction. On July 2, 2004, the learned Trial Judge granted ad interim order of injunction. Summons / notice was sent upon the petitioner but the defendant did not appear and ultimately, the interim order of injunction was made absolute on February 13, 2006.

It is contended by the plaintiff that on August 22, 2004 the defendant / petitioner herein took forcible possession of the suit premises in violation of the order of ad interim injunction. So, an application was filed u/s 151 of the C.P.C. for mandatory injunction and that application was allowed by the impugned order. Being aggrieved, this application has been preferred.

Now, the question for adjudication is whether the learned Trial Judge is justified in passing the impugned order.

Upon hearing the learned counsel for the petitioner and on perusal of the materials on record, I find that summons / notice could not be served upon the petitioner and in this regard, the petitioner has contended that the suit was instituted with mentioning of the wrong address of the petitioner. So, the summons/notice could not be served upon her.

From the materials on record I find that the address of the defendant was corrected subsequently by way of amendment of the plaint mentioning the correct address of the defendant. In the mean time, the ad interim order of injunction as noted above was passed and subsequently, the ad interim order of injunction was made absolute as indicated earlier, on February 13, 2006.

After appearance in the suit, the petitioner filed her written statement on March 24, 2006 and thereafter, on April 12, 2006 the said application u/s 151 of the C.P.C. for mandatory injunction was filed by the plaintiff. She also filed an objection against the application u/s 151 of the C.P.C. contending, inter alia, that the statement of the plaintiff relating to violation of the Court''s order is totally wrong. The defendant is in possession of Schedule ''A'' property and the plaintiff never possessed the Schedule ''A'' property. The other allegations or contentions as raised by the plaintiff were wrong. This objection is supported by an affidavit.

There is no finding in the impugned order, how such contention of the defendant has been dealt with by the learned Trial Judge. The impugned order or the earlier order dated July 2, 2004 does not indicate that the plaintiff was in possession of the suit property and the ex parte order does not indicate anything, save the noting that the plaintiff has proved, prima facie, case. It does not indicate that the plaintiff was in exclusive possession of the Schedule ''A'' property.

Under such circumstances, according to the decision of Kishore Kumar Khaitan and Another Vs. Praveen Kumar Singh, , the order of allowing the application u/s 151 of the C.P.C. was not proper. Mr. Sukumar Bhattacharyya has drawn my attention to the effect that the suit was filed mentioning the wrong address of the defendant so that appropriate ex parte orders could be passed against the defendant and that is why subsequently, the plaintiff sought for amendment of the plaint incorporating the correct address.

He has also submitted that when the plaintiff did not come to the Court with clean hands and exercised fraud upon the Court, the relief sought for in the application u/s 151 of the C.P.C. should not have been granted.

In support of his contention, Mr. Bhattacharyya has referred to the decision of Ram Chandra Singh Vs. Savitri Devi and Others, and Sudhangshu Sekhar Maity v. Santi Gopal Jana & ors. reported in 2011 (2) CLJ (Cal) 479.

In the instant case, I find that after the grant of the ad interim injunction, the amendment of the plaint was sought for in respect of the address of the petitioner and so, the submission of Mr. Bhattacharyya appears to be convincing. When such specific contention has been raised by the defendant and she has specifically stated that she is in possession of the suit property, unless evidence is tendered, it is not proper to grant relief on the basis of affidavits on an application u/s 151 of the C.P.C. and its objection. The plaintiff may amend the plaint, if she has been dispossessed from Schedule ''A'' property during the pendency of the suit. But the grant of relief by the impugned order cannot be justified under the circumstances. The learned Trial Judge has, therefore, failed to exercise his jurisdiction properly in the matter of disposal of the application u/s 151 of the C.P.C. and so, the impugned order cannot be supported.

In that view of the matter, I am of the opinion that the revisional application succeeds. The said application is, therefore, allowed. The impugned order is hereby set aside. The application u/s 151 of the C.P.C. filed by the plaintiff / opposite party herein stands disposed of in the manner indicated above. The learned Trial Judge shall proceed with the suit in accordance with law. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.