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Judgment
This first miscellaneous appeal is directed against an order dated 3rd November, 2016 passed by the learned Civil Judge (Senior Division), 5th Court at Alipore in Title Suit No. 233 of 2016 at the instance of the plaintiff/appellant.
By the impugned order, the plaintiff''s prayer for ad interim injunction was refused by the learned Trial Judge. Hence, the plaintiff is aggrieved. Such interim order was sought for in a suit for specific performance of a contract. Learned Trial Judge held that the plaintiff has not been able to make out a prima facie case as the contract has not yet reached its finality.
We also do not find any illegality in such finding of the learned court below on the basis of the pleading made out by the plaintiff in the plaint as well as in the injunction application as we find that it was contemplated in the memorandum of understanding that the parties will ultimately enter into the final contract in respect of the transaction to be made concerning the suit property. Hence, we decline to admit this appeal under the provision of Order XLI Rule 11 of the Code of Civil Procedure.
However, we direct the defendant/respondent to file affidavit in connection with the plaintiff''s application for temporary injunction within two weeks from date in the court below; reply, if any, be filed by the plaintiff/appellant within a week thereafter.
We request the learned Trial Judge to dispose of the plaintiff''s application for temporary injunction as early as possible preferably within one month after completion of affidavits of the parties.
It is made clear that the time schedule which is so fixed for filing affidavits by the parties is peremptorily fixed by this Court and as such, no further extension will be granted to anyone of them for filing affidavits in the court below.
We, however, clarify that the learned Trial Judge while disposing of the plaintiff''s application for temporary injunction, will dispose of the same in accordance with law and according to his own wisdom without being influenced by any of the prima facie observations either made in the impugned order by the learned Trial Judge or made by this Court hereinabove.
The appeal and the application filed in connection therewith are, thus, disposed of.
Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.