C.O. 3975 of 2016. Case: Abdul Mujid Mondal and Ors. Vs Piar Md. Gayen and Ors.. High Court of Calcutta (India)
| Case Number | C.O. 3975 of 2016 |
| Counsel | For Appellant: Kaushik Dey, Adv. and For Respondents: Hiranmoy Bhattacharya, Adv. |
| Judges | Ashis Kumar Chakraborty, J. |
| Issue | Code of Civil Procedure, 1908 (CPC) - Order IX Rule IX; Order XXXIX Rules 1, 2, XXXIX; Sections 141, 151, 2(16), 94, 94(c); Constitution of India - Article 226 |
| Judgement Date | March 10, 2017 |
| Court | High Court of Calcutta (India) |
Judgment:
Ashis Kumar Chakraborty, J.
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This revisional application is directed against the order dated September 28, 2016 passed by the learned Civil Judge (Junior Division), Additional Court at Bankura in Misc. Case No. 4 of 2016, arising out of Title Suit No. 19 of 2013. By the impugned order, the learned Court below rejected the application filed by the revisional petitioners under Section 94(c) read with Section 151 of the Code of Civil Procedure (in short "the Code") praying for, an order of injunction restraining the opposite parties from interfering with their possession and user of the suit property, a tank.
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The petitioners claiming to be in possession of the tank namely, Tamlibandh (hereinafter referred to as "the suit property") filed the suit against the opposite parties, before the learned Court below claiming, inter alia, a decree for permanent injunction restraining the opposite parties from interfering with their possession in respect of the suit property. In the suit the petitioners also filed an application under Order XXXIX Rules (1) and (2) of the Code praying for, an interim order of injunction against the opposite parties which was rejected by the learned trial Judge. The petitioners carried the said order passed by the learned trial Judge in appeal, being Misc. Appeal No. 35 of 2009 before the learned Civil Judge (Junior Division), Additional Court at Bankura. By order dated February 25, 2011 the learned Additional District Judge held that the petitioners herein, the appellants are in possession of the suit property set aside the impugned order passed by the learned trial Judge and passed an order of status quo regarding the possession of the suit property till the disposal of the suit. The said order dated February 25, 2011 was challenged by the opposite parties before this Court in a revisional application, C.O. 826 of 2011. By order dated February 25, 2011 a learned Single Judge of this Court upheld the decision of the learned Additional District Judge dated February 25, 2011 and rejected the revisional application. It is the case of the petitioner that during the pendency of the suit before the learned Court below, the defendant No. 12 died, but since they did not get proper information they could not take appropriate steps for bringing the heirs and legal representatives of the defendant No. 12 on record of the suit and by order dated April 22. 2016 the learned Court below recorded that the entire suit stood abated. The petitioners claimed that the delay in filing the application for bringing the heirs and legal representatives of the deceased defendant No. 12 was for reasons beyond their control and in any event there is no question of the entire suit being abated. They have filed an application before the learned Court below for review of the said order dated April 22, 2016. In the said review application the petitioners filed an application under Section 94(c) read with Section 151 of the Code praying for, an order for protection of their possession in respect of the suit property. By the order dated September 28, 2016 the learned Court below rejected the said application. The learned Court below held that in the present case when the abatement of the suit has not yet been set aside, there is no scope to pass an order of injunction under Section 94(c) of the Code. The learned Court below further held that once the suit has been recorded to have been abated, the Court in exercise of the inherent power cannot override, the rights accrued to the defendants by operation of law. The learned Court below was...
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