CRP 398/2016. Gauhati High Court
| Case Number | CRP 398/2016 |
| Judgement Date | June 16, 2019 |
| Court | Gauhati High Court |
THE GAUHATI HI GH COURT
( THE HI GH COURT OF ASSAM, NAGALAND, MI ZORAM & ARUNACHAL PRADESH)
CRP No. 398 OF 2016
Sri Rintu Lahon
-Versus-
Sri Surender Prasad Shah @ Kanu and others
..Respondents
BEFORE
HON’BLE MR. JUSTI CE KALYAN RAI SURANA
For the petitioner : Mr. PJ Saikia,
Mr. AK Gupta,
Ms. M. Kechie, Advocates.
For the respondent : Mr. GP Bhowmick, Sr. Adv,
Ms. P. Chetia,
Ms. M. Kalita, Advs.
Date of hearing : 07.06.2017
Date judgment : 16.06.2017
JUDGMENT AND ORDER
Heard Mr. PJ Saikia, the learned counsel for the petitioner as well as Mr. GP Bhowmick, the learned senior counsel for the respondents.
2) By filing this revision application under Article 227 of the Constitution of I ndia, the petitioner has challenged the judgment and order dated 19.09.2016 passed by the learned Civil Judge, Dibrugarh in
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… Petitioner
Misc. Appeal No. 8/ 2014 by which the order dated 30.08.2014 passed by the learned Munsiff No.1, Dibrugarh in Misc (J) Case No.55/ 2014 was reversed. The learned Munsiff No.1, Dibrugarh had directed the parties to maintain status quo in respect of the suit land. The appellate court by setting aside the order of status quo, directed the parties not to alienate the suit property so that suit property can be preserved till disposal of the main suit.
3) Owing to the nature of the dispute raised in the present revision, I do not like to burden this judgment with the disputed facts of the case as set out in the pleadings of the parties. I t would be sufficient to indicate herein that while the plaintiff has claimed right, title and interest over the suit land described in Schedule–B of the plaint, the defendant No.1 has also set up a claim for right, title and interest over the same land, which is being adjudicated in Title Suit No. 49/ 2014 which is pending for adjudication before the court of learned Munsiff No.1, Dibrugarh.
4) Being aggrieved by the order dated 30.08.2014, by which the learned Munsiff No.1, Dibrugarh had directed the parties to maintain status-quo in respect of the suit land, the defendant No.1 had filed an appeal being Misc. Appeal No.8/ 2014 before the court of learned Civil Judge, Dibrugarh. The learned first appellate court on the basis of materials available on record, formulated the point of determination- whether the order dated 30.08.2014 passed by the learned Munsiff No.1, Dibrugarh in Misc.(J) Case No.49/ 2014 requires any interference in appeal.
5) The learned first appellate court arrived at a finding that the learned trial court had failed to consider that the suit land was in possession of the defendant No.1 and that the court below did not
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discussed the three golden principles of injunction i.e., existence of prima facie case, balance of convenience and irreparable loss and injury while directing the parties to maintain status quo in respect of the suit land.
6) The learned first appellate court on the basis of the decision of the Apex Court in Terene Traders vs. Ramesh Chandra Jamma Das and Co. reported in AIR 1987 SC 1492, had arrived at a conclusion that the party not in khas possession are not entitled to injunction. I t was further held that as the defendant No.1 was in possession of the suit land, any order preventing him from carrying out his construction work will definitely cause inconvenience to the opposite party/ defendant No.1 than the petitioner/ plaintiff and if the plaintiff is able to establish his case in the trial, then the construction made by the defendant No.1 could be demolished at the cost of defendant No.1. I t was further held that the learned Munsiff No.1 had failed to consider the three golden principles while discussing the petition under Order XXXI X Rule 1 & 2 of Code of Civil Procedure, which requires interference and the order of status quo against the construction by the defendant No.1 was set aside but both the parties are directed not to alienate the suit property so that the suit property can be preserved till disposal of the main...
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