Sikha Das & Ors. vs Naresh Koley & Ors.

Sabyasachi Bhattacharyya, J.:-

The present appeal has been preferred against an order whereby an ad interim injunction has been refused in a suit for partition filed by the plaintiffs/appellants, who claimto be to owners to the extent of 5/8^th share in the suit property, being the sisters of the principal respondents.

Learned counsel appearing for the appellants argues that the learned Trial Judge refused to grant ad interim injunction on two -fold grounds --first, that no photographs or videos were produced to show that constructions were going on and, secondly, that the proforma respondents herein, who are subsequent purchasers from the principal respondents, against whom the main relief was sought in the injunction application, were arrayed as proforma defendants instead of principal defendants.

Accordingly, it was observed by the learned Trial Judge that if the plaintiffs so intend and are advised, may seek transposition/impleadment under Order I Rule 10(2) of the Code of Civil Procedure with regard to the proforma respondents, by bringing them to the category of principal defendants instead of proforma respondents.

Learned counsel places reliance on the transfer deeds executed by the principal respondents, the two brothers of the present appellants, in favour of the proforma respondents, who are third parties to the family.

From the said documents, it is evident that the vendors/principal respondents gave themselves out to be sole, absolute and recorded owners of the entire suit property, by suppressing the 5/8^th share of the plaintiffs/appellants.

It is argued that in view of both the bases of the impugned order being erroneous and the learned trial Judge having failed to advert to the aforesaid considerations, the impugned order ought to be set aside.

Learned senior counsel appearing for the proforma respondents argues, by placing reliance on the annexures to the affidavit-in-opposition filed by the proforma respondents in this Court, that a huge project is coming up at the behest of the proforma respondents on the suit property. Since the primary structures have already been erected, it is submitted that the proforma respondents will suffer injury and substantial loss in the event injunction is granted. It is submitted that the balance of convenience and inconvenience is against the grant of injunction.

Learned senior counsel further argues that even if it is assumed that the proforma respondents acquired the shares of the principal respondent nos. 1 and 2/brothers of the appellants, to the extent of 2/8^th share in the property, which comes to about 18 decimals of land, the construction which is coming up on the suit property at the behest of the proforma respondents is being built within the said area.

Thus, in any event, the shares of the vendors of the proforma respondents have not been exceeded in making the construction.

Learned senior counsel next argues that even as per the averments of plaint, it will be evident that the plaintiffs/appellants had knowledge of the conversion of the property and the obtaining of sanction plan by the proforma respondents since long back. However, the appellants chose to keep silent and permitted the construction to commence and, subsequently thereafter, coming to court and seeking injunction.

It is argued that the law is well-settled that in such circumstances, no premium should be given to such delayed applications for injunction.

Lastly, learned senior counsel contends that the appellants have failed to prove the foundational documents to show that they are sisters of the respondent nos. 1 and 2 and as such have title in the suit property.

Upon hearing learned counsel, we propose to decide the appeal along with the application, in view of the brief points involved..

The cardinal principle of adjudication by the Court at the ex parte ad interim stage of injunction is that the averments made in the plaint and the temporary injunction application are to be taken as sacrosanct for the limited purpose of consideration of grant of ex parte order or refusal thereof.

At this stage, the court cannot look into the documents sought to be relied on by the respondents or the proforma respondents.

Since the documents now relied on by the proforma respondents were not before the Trial Court at the time of passing of the impugned order, it is beyond the jurisdiction of this Court, on a composite reading of Order XXXIX Rules 1 and 2 read with the provisions of Order XLIII, to go beyond the pleadings and look into the documents sought to be produced by the proforma respondents.

An appeal is pyramidal in nature and insofar as the judicial hierarchy is concerned, the appellate court’s powers cannot be extended beyond those vested in the Trial Court while passing the impugned order. The appellate court, thus, cannot look into documents which were not before the trial court.

Secondly, from the averments made in the plaint, we only find that allegations have only been made that the proforma respondents are digging and preparing to make construction on the subject property. It is not disclosed in the plaint as to whether or not the plaintiffs were aware of the constructions since long back and/or that the construction has been raised up to a substantial level.

Thus, on a plain reading of the plaint, we find that a sufficiently strong prima facie case has been made out by the plaintiffs for grant of injunction.

At this stage, the averments on oath made in the temporary injunction application and the plaint are to be looked into, from which we find from the transfer deeds executed in favour of the proforma respondents, the principal respondents transferred the entire suit property, prima facie suppressing the 5/8^th share, that is the majority share, of the plaintiffs/respondents.

Thus, at this juncture, if the proforma respondents are permitted to raise construction, the suit may ultimately be rendered infructuous.

However, we make it clear that the above observations are tentative in nature, based only on the averments made in the plaint and the injunction application, and it will be open for the respondents and the proforma respondents to file their respective written objections to the temporary injunction application in the trial court. As and when the said objections are filed, it will be open to the learned trial Judge to decide the temporary injunction application on merits in accordance with law by treating the above observations and those passed in the impugned order to be tentative in nature.

Insofar as the two grounds resorted to by the learned trial Judge in passing the impugned order, we do not find substance in either of those.

At the ex parte ad interim stage, as indicated above, the Court has to proceed only on averments on oath made in the plaint and the temporary injunction application and the documents relied thereon.

At such stage, it is only the apprehension of the plaintiffs which has to be looked into, which is clear from the averments of the plaint and temporary injunction application, even in the absence of photographs/side videos etc.

Insofar as the arraignment of the proforma respondents as proforma defendants in the suit is concerned, despite the main relief having been sought against them, the law does not distinguish between a “defendant” and a “proforma defendant”. It is only a matter of convenience that a practice has developed to implead proper parties as proforma parties whereas the principal parties are impleaded as “proforma” defendants.

However, in law, there is no distinction between the two. Since it is evident from the plaint and the injunction application, as to against whom the principal relief is sought, the mere arraignment of the proforma defendants in such capacity could not have been a valid factor for refusing injunction to the appellants.

Accordingly, FMA No. 733 of 2026 is allowed on contest, thereby setting aside the impugned order, bearing Order no. 2 dated November 11, 2025 passed by the learned Civil Judge (Senior Division) at Chandernagore, District- Hooghly in Title Suit No. 186 of 2025, and restraining the proforma respondents and/or their men and agents by an order of injunction from changing the nature and character of the suit property till disposal of the temporary injunction application in the trial court.

In the event the proforma respondents file their written objection to the temporary injunction application in the Trial Court within a fortnight from date, it is expected that the learned Trial Judge shall dispose of injunction application itself as expeditiously thereafter as possible, preferably within four weeks from the date of filing of such written objection, without being prejudiced in any manner by any of the observations made herein.

CAN 2 of 2026 and CAN 3 of 2026 are consequentially disposed of as well.

There will be no order as to costs.

Urgent certified copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.

I agree.