The principle laid down in "Asha Chaubey v. Shib Dayal Shukla" that a judicial authority has a duty to adjudicate upon an application alleging serious prejudice caused by its erroneous order is distinguishable and should be applied with restraint, particularly in cases where an application requesting restoration of status quo ante on the ground of dispossession would require a trial on evidence.

Sanjib Banerjee, J.

In view of the order proposed to be made, no previous service is required to be effected on the opposite party. The petitioner will, however, remain obliged to immediately forward a copy of the petition along with a copy of this order to the opposite party.

2. The grievance of the petitioner is that despite the petitioner asserting before the appellate court that the petitioner had been dispossessed pursuant to an ex parte ad interim order obtained in the appeal, the appellate court declined to go into the matter while rendering the final order and dismissing the appeal.

3. The petitioner claims to be the tenant who was in occupation of the suit premises at the time of the institution of the suit. The plaintiff has claimed that the petitioner herein had surrendered possession of the tenanted premises. Curiously and despite such assertion, the suit has been filed apparently to restrain the tenant from creating third party rights in respect of the suit properties or otherwise dealing with the same.

4. There is considerable suspicion that is aroused in a landlord claiming that a tenant had voluntarily surrendered the tenancy but was thereafter seeking to create third party rights in respect of the suit premises, probably by inducting others thereat.

5. The ex parte ad interim order sought before the trial court was appropriately declined. The refusal to pass an ex parte order was carried in appeal and, as is the bad habit in the district judiciary, the appeal was not only entertained but an ad interim order was passed therein without indicating how the trial court had grievously erred in exercising a discretion that was undoubtedly vested in the trial court.

6. A digression is necessary at this stage. Courts in the district judiciary must be disabused of the notion that an ex parte ad interim order is the rule and not the exception. It is emphasised that an ex parte order should be regarded as an exception and which is why there is a special provision in such regard in Order 39, Rule 3 of the Code. In particular, appellate courts should be wary of passing ex parte ad interim orders in appeals arising out of the refusal of ex parte ad interim orders.

7. To return to the matter at hand, the petitioner herein claims that armed with the ex parte ad interim order mindlessly passed by the appellate court, the landlord dispossessed the petitioner from the suit premises by breaking upon the padlocks put up thereat by the petitioner. The petitioner applied under Order 39 Rules 1 and 2 of the Code before the appellate court in seisin of the miscellaneous appeal for restoration of the petitioner's possession of the suit premises.

8. While finally adjudicating the appeal and dismissing the same, the appellate court found that there was no prima facie evidence produced by the petitioner herein of the petitioner having been dispossessed from the suit premises pursuant to the ex parte ad interim order passed in the appeal.

9. The petitioner relies on a judgment reported at 2009 (2) CHN 806 (Asha Chaubey v. Shib Dayal Shukla) where, in somewhat similar circumstances, this Court rendered a view that when an illegal order of the appellate court had been taken advantage of by a wrongdoer to dispossess a person from an immovable property, it was the duty of the appellate court to adjudicate on the application of the person dispossessed and undo the wrong, if any. However, there is a distinction which prevents the principle being applied with equal force in the present case; and, a matter of policy that would require the principle to be applied with considerable restraint.

10. For a start, the ad interim order obtained by the appellant in the case of Asha Chaubey was set aside on a petition under Article 227 of the Constitution. At the time that the petition under Article 227 of the Constitution was taken up by this Court, it was pointed out that because of subsequent events, an application had been made by the respondent in the l