AI Structured Summary
Not yet generated for this judgment
Judgment
Sabyasachi Bhattacharyya, J.:-
Affidavit-of-service filed in court today be kept on record.
Apart from respondent no.2, all the other respondents have been served and/or are represented before us.
Learned counsel for the appellant submits that there is extreme urgency in the matter inasmuch as, allegedly, the concerned respondents are attempting to alter the nature and character of the suit property.
It is further submitted that respondent no.2, the service upon whom returned with the endorsement “left without intimation”, resides at the same premises as the respondent no.1 and the service was attempted to be made at the self-same address.
Since substantial service has been effected almost on all the respondents, and keeping in view the urgency of the matter, we take up CAN 1 of 2026 for hearing.
The delay of about 388 days (335 days according to the Stamp Reporter’s report) was occasioned due to pendency of an appeal against the self-same impugned order before the concerned District Court.
The appeal was admitted by the District Court and interim orders granted.
Subsequently, upon discovery of the lack of pecuniary jurisdiction of the said court, the said appeal was dismissed on July 31, 2026.
On August 7, 2026, that is, within a week thereafter, the present appeal has been preferred.
Upon hearing learned counsel for the parties, we find sufficient explanation for the delay having been made out, inasmuch as the District Court entertained the appeal erroneously preferred before it and had granted interim order, which strengthens the perception that the appellant proceeded bona fide in pursuing the said appeal before a wrong forum.
Hence, the benefit of Section 14 of the Limitation Act, 1963 ought to be extended to the appellant.
Accordingly, CAN 1 of 2026 is allowed on contest, thereby condoning the delay in preferring FMAT 276 of 2026.
There will be no order as to costs.
The appeal is now taken up for hearing under Order XLI Rule 11 of the Code of Civil Procedure.
The appeal is admitted and shall be heard on the grounds taken in the Memorandum of the appeal.
In view of the short scope of the appeal, we take up the same for hearing along with the connected application.
In a suit for partition instituted by the plaintiff/appellant, an application for temporary injunction was filed, seeking a restraint order on the principal defendants and/or their men and agents from making any sort of construction over the A1 schedule property and from changing the nature and character thereof and/or from disturbing the peaceful possession of the plaintiff in respect of the A1 schedule property.
The premise of such prayer was that allegedly the principal respondents, in particular the respondent no.12, the Power of Attorney holder for respondent nos.3 to 10, entered into the suit premises on February 2, 2025 and mercilessly broke down a pathological center being run by the appellant in the rooms comprised of the A1 schedule property, inter alia, with a JCB machine (bulldozer).
The learned Trial Judge, it is argued, without adverting to the merits of the case and/or the yardsticks governing the grant of injunction, refused to grant ad interim injunction only on the premise of the perception that reasonable opportunity is required to be given to the defendants before passing any order.
Learned counsel appearing for the respondent nos.3 to 12 contends that, in a subsequent declaratory suit filed by the self-same plaintiff/appellant, a different stand has been taken as to the ownership of A1 schedule property, since exclusive title to the said property has been claimed in the said suit, as opposed to the co-ownership claimed in the present suit.
It is further submitted that necessarily, by dint of the averments made in the plaint and the temporary injunction application, the appellant has admitted his dispossession from the A1 schedule property and, as such, cannot now claim injunction in respect of the self-same property.
Upon a consideration of the impugned order, we find that the same cannot be sustained even on the sole ground that it is entirely devoid of any reason.
The learned Trial Judge merely narrated the averments in the plaint and the injunction application and the arguments of the plaintiff and thereafter, without adverting either to the materials and averments before the trial court and/or the cardinal tests to be applied in grant of ad interim injunction, refused to grant the plaintiff’s prayer merely on the premise that in the opinion of learned Trial Judge, reasonable opportunity is to be given to the defendants before passing an order.
Thus, the learned Trial Judge shirked the duty of considering the prayer for ad interim injunction on merits.
Insofar as the filing of a subsequent suit is concerned, the significance of the same in the present case can only be considered by the learned Trial Judge when such fact is brought on record before the trial court.
At the ad interim stage, the learned Trial Judge had to proceed on the premise that the averments made in the plaint and the injunction are sacrosanct and to consider whether injunction can be granted on the basis of the same.
We cannot expand the scope of the present appeal by going beyond the jurisdiction which the learned Trial Judge had on the day of passing of the impugned order.
That apart, subsequent facts do not justify the refusal of injunction on the day when the impugned order was passed.
Even otherwise, regarding the argument of dispossession advanced by the appearing respondents, we do not find much merit in the same since, as per the allegations in the plaint and the temporary injunction application, the respondent no.12 demolished the A1 schedule property, which is only a part of the total subject-matter of the suit comprised in the A schedule property.
There is no averment that consequentially possession of the said portion was also taken by the respondent no.12.
Even otherwise, in a partition suit, it is deemed that the possession of one of the co-sharers is construed to be possession on behalf of the other co-owners as well.
Accordingly, in view of the gross violation of the rights of the plaintiff as a co-owner of the property as alleged in the plaint and the temporary injunction application, this court is of the opinion that a sufficient prima facie case was made out before the trial court for grant of injunction.
Moreover, the balance of convenience and inconvenience and the test of irreparable injury are also in favour of grant of injunction in favour of the appellant.
As a rider, we may add that being prima facie satisfied, the District Court had also entertained the appeal initially and granted an interim order of protection, despite the said court not having pecuniary jurisdiction.
In view of the above, we find a sufficient case for grant of ad interim injunction as sought for by the plaintiff having been made out.
We must record at this juncture that learned counsel for the appellant also seeks an injunction order in respect of transfer of the suit property and/or creation of encumbrance in favour of third parties.
However, the scope of the present appeal is limited to the extent of the jurisdiction of the learned Trial Judge as on the day of passing the impugned order.
Since the prayer in the temporary injunction application did not contain any element of protective order regarding transfer or creation of third-party encumbrance, sitting in appeal, we cannot expand the scope of the temporary injunction application pending in the trial court itself.
Be that as it may, the appellant will be at liberty to seek an appropriate amendment in that regard in the injunction application before the trial court.
Hence, FMAT 276 of 2026 is allowed on contest against the appearing respondents and ex parte against respondent nos.1 and 2, setting aside the impugned order bearing Order no.2 dated May 8, 2025 passed by the learned Civil Judge (Senior Division) at Serampore, District-Hooghly in Title Suit No. 122 of 2025 and passing an order of injunction restraining the defendants/respondents and their men and agents from changing the nature and character of the suit property in respect of the A1 schedule property of the plaint in any manner whatsoever and/or from disturbing the possession of the plaintiff/appellant in respect thereof, till disposal of the temporary injunction application in the trial court.
CAN 2 of 2026 is also disposed of consequentially.
In the event the appellant files an appropriate application for amendment of the injunction application seeking further relief of injunction restraining the defendants from transferring and/or creating third party interest in respect of the suit property within a week from this date, the learned Trial Judge shall take up the same and dispose it of as expeditiously as possible and, immediately thereafter, take up the injunction application itself for hearing.
Written objection, if any, to the amendment application shall be filed by the defendants/respondents within a week from filing of the same.
Written objection to the temporary injunction application shall also be filed within a fortnight from this date before the trial court.
It is expected that the learned Trial Judge shall dispose of the injunction application itself as expeditiously as possible, preferably within one week after the reopening of the trial court subsequent to the upcoming Annual Vacation of the said court.
We make it clear that the merits of the injunction application and/or the suit have not been gone into and it will be open to the learned Trial Judge to independently decide both on their own merits, without being unnecessarily influenced by any of the observations made above.
There will be no order as to costs.
Urgent Photostat certified copies of this judgment, if applied for, be made available to the parties upon compliance with the requisite formalities.
I agree.