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2017 Supreme(Cal) 74
IN THE HIGH COURT AT CALCUTTA
Jyotirmay Bhattacharya, Ishan Chandra Das, JJ.
Sri Anil Chorone Roquitte & Ors – Appellant
Versus
Sri Bhagawati Chorone Roquittee & Ors. – Respondents
F.M.A.T. 1124 of 2016 (CAN 10446 of 2016)
Decided on : 17-01-2017.
Advocate Appeared:
For the Appellants : Mr. Sourav Guha Thakurata.
For the Respondent: Mr. Vinay Kumar Purohit.
The need for sanctioned plans for construction and the maintenance of status quo to avoid multiplicity of proceedings.
Headnote:
Court Fees - Civil Procedure - Code of Civil Procedure, Section 94
Fact of the Case:
The appeal was against the rejection of an application under Section 94 of the Code of Civil Procedure by the Trial Judge, concerning an injunction application and the legality of construction on a property.
Finding of the Court:
The Court held that parties should not raise any construction on the property without a sanctioned plan and should maintain status quo regarding transfer of the property during the pendency of the suit.
Issues: The legality of the rejection of the application under Section 94 of the Code of Civil Procedure and the maintenance of status quo on the property.
Ratio Decidendi: The Court emphasized the need for sanctioned plans for construction and the maintenance of status quo to avoid multiplicity of proceedings.
Final Decision: The appeal was allowed, and the parties were restrained from raising any construction without a sanctioned plan or in deviation of the sanctioned plan, and from selling, transferring, or creating any third party interest over the property without the court's leave during the pendency of the suit.
1. We are informed by Mr. Guha Thakurata, learned advocate appearing for the appellants that the deficit court fees of Rs. 10/- has already been put in by the appellants.
2. The learned advocate of the appellants is directed to supply the filing number and the date on which such deficit court fees was submitted to the concerned officer in course of the day.
3. At the time when we were considering the appellants’ prayer for extension of interim order, we were invited by the learned counsel appearing for the parties to dispose of the appeal itself on merit.
4. We are informed by Mr. Guha Thakurata, learned advocate appearing for the appellants that pursuant to the order passed by this Court earlier, notice was served upon all the respondents.
5. Pursuant to such notice, Mr. Purohit, learned advocate appears on behalf of the respondent nos. 3, 4, 5, 7 & 9. Despite of service, none appears on behalf of the other respondents.
6. We are also informed by the learned counsel appearing for the parties that all papers necessary for disposal of the appeal are annexed to the stay application.
7. Under such circumstances, we have decided to dispose of the first miscellaneous appeal by dispensing with the requirement of filing paper books in this appeal.
8. Let us now consider the merit of the instant appeal in the facts of the present case.
9. The instant appeal is directed against an order passed by the learned Trial Judge on 21st September, 2016 vide order No. 262 whereby the appellants’ application under Section 94 of the Code of Civil Procedure dated 4th May, 2016 was rejected. While rejecting the appellants’ said application, the learned Trial Judge recorded that previously an injunction application under Order 39 Rule 1 & 2 of the Code of Civil Procedure, filed by the plaintiffs, was rejected and as such, presently no injunction is operating against the defendants concerning the suit property. It was also held that the Kolkata Municipal Corporation is the appropriate authority to ascertain as to whether any illegal construction is being made by any of the parties over the suit property or not.
10. The learned Trial Judge also held that unless the particulars relating to the proposed transaction which is under process between the defendants and some stranger purchasers regarding transfer of the suit property is disclosed, the Court cannot ascertain as to whether the defendant no.2 is really trying to dispose of and/or encumber the suit property in favour of third party or not. Holding as such, the plaintiffs’ application under Section 94 of the Code of Civil Procedure was rejected by the learned Trial Judge.
11. The legality of the said order is under challenge in this appeal at the instance of the plaintiffs/appellants.
12. The instant appeal was admitted for hearing under the provision of Order 41 Rule 11 of the Code of Civil Procedure on 5th October, 2016. After the appeal was admitted, an interim order of injunction was passed on an application being CAN 10446 of 2016 filed by the plaintiffs/appellants whereby the parties were restrained from raising any further construction over the suit property till 15th November, 2016 or until further order whichever is earlier. The said interim order was again extended by subsequent order passed by this Court on 16th November, 2016.
13. Despite communication of the aforesaid orders to the defendants/respondents, nobody has come forward for vacating the said interim order of injunction.
14. Be that as it may, though the learned Trial Judge mentioned in the impugned order that previously application for injunction was rejected by the learned Trial Judge but it was not mentioned in the said order as to whether the plaintiffs claimed identical relief in the earlier application on the basis of the identical set of facts which are pleaded in the present application for injunction or not.
15. In the absence of the pleadings of the parties in the earlier injunction proceeding and the or
