Sri Debasish Chakraborty vs Sri Debasish Samanta and Ors

Prasenjit Mandal, J.—Challenge is to the Order No. 41 dated December 16, 2010 passed by learned Civil Judge (Junior Division), Haldia in Title Suit No. 176 of 2007. The Defendant No. 1 has filed this application against the Plaintiffs / opposite parties herein and the other proforma Defendants challenging an order of disposal of the application u/s 151 of the CPC filed by the Defendant No. 1 on August 30, 2010.

The short question involved in the matter is whether the Court could pass an order giving permission to make construction to the applicant on a non-suit plot being No. 61.

By the application u/s 151 of the CPC under reference, the Petitioner sought for permission to make construction according to the sanctioned plan obtained from the concerned Gram Panchayat and that application was rejected by the learned Trial Judge. Being aggrieved, this application has been preferred.

Now, the question is whether the impugned order should be sustained.

Upon hearing the learned Counsel for the parties and on going through the materials on record, I find that the following facts are not in dispute:

(i) That the Plaintiffs instituted a suit being Title Suit No. 176 of 2007 before the learned Civil Judge (Junior Division), Haldia against the petition praying for declaration in respect of plot in suit, that is, plot No. 60 and permanent injunction restraining the Petitioner from raising any construction over the plot above 1 decimal in plot No. 61 as described in the plaint of the said suit.

(ii) That the Petitioner as Defendant entered an appearance and filed a written statement denying the material allegations raised in the plaint.

(iii) That the application for temporary injunction filed by the Plaintiffs was heard by the learned Trial Judge on February 25, 2008 and the learned Trial Judge directed both the parties to maintain status quo till disposal of the suit.

(iv) That an local inspection was held at the instance of the Plaintiffs and the learned Commissioner submitted a report and the report shows that the two plots i.e. plot No. 60 and the non-suit plot No. 61 are side by side and intervened by a strip of land which is used as passage.

(v) That the Defendant got the plan sanctioned for making construction on the non-suit plot.

(vi) That the Plaintiffs filed a misc. case being Misc.

Case No. 14 of 2008 for breach of injunction under Order 39 Rule 2A of the CPC and the said proceeding is still pending.

Now, the question is whether this Court can give permission to the Petitioner to make construction on the non-suit plot No. 61 as per sanctioned plan.

Upon due consideration of the materials on record and the above admitted facts, the learned Trial Judge observed that there was No. scope of jurisdiction in the instant suit to pass any order as regards construction on the non-suit plot No. 61. I am of the view that this finding is based on reasoning and natural justice.

The learned Trial Judge has also opined that there is No. change of circumstances which attracts for variation of the order of status quo by way of Order 39 Rule 4 of the CPC and that the dispute involved in the suit is with regard to the property in dispute over which an order of status quo was passed in exercising of the jurisdiction under Order 39 Rule 1(a) of the Code of Civil Procedure

Under the circumstances, if the permission as sought for by the Petitioner is granted, it may cause prejudice to the proceeding lodged under Order 39 Rule 2A of the CPC by the Plaintiffs and it may also encroach the suit property. Though, the Defendant / Petitioner herein stated that he would not a claim of equity in the event of his failure in the suit, the object of granting temporary injunction is to keep the property in suit in status quo condition till the disposal of the suit. The suit under reference is at the stage of settling date for peremptory hearing and so, the suit is likely to be disposed of soon.

Under the above circumstances, I am of the view that the learned Trial Judge has rightly rejected the application u/s 151 of the CPC There is No. scope of interference at all with the impugned order. So, the revisional application fails to succeed.

It is, therefore, dismissed.

Considering the circumstances, there will be No. order as to costs.