An application under Section 151 of the Code of Civil Procedure is not maintainable when miscellaneous cases under Order 39 Rule 2A are pending.

Sahidullah Munshi, J.

This revisional application is at the instance of plaintiffs in a suit for declaration, recovery of khas possession and for permanent injunction and is directed against an order dated 15th December, 2014, passed by the learned Civil Judge (Junior Division), 3rd Court, Baruipur, South 24-Parganas, in Title Suit No.20 of 2011. By the order impugned the learned Judge has rejected the plaintiff-petitioners' application for police help under Section 151 of the Code of Civil Procedure. While rejecting the application under Section 151 of the Code of Civil Procedure the learned Judge held that the plaintiffs have already filed four miscellaneous cases vide Misc. Case No.31 of 2012, No.11 of 2011, No.35 of 2011 and No.5 of 2013 under the provisions of Order 39, Rule 2A of the Code of Civil Procedure complaining violation of the order of injunction dated 26th September, 2011 and all those cases are pending before him. It has been held that once Misc. case for violation of the order of injunction has been filed before disposal of the same another application under Section 151 of the Code cannot be entertained.

2. It has been held by the learned Court below that police help cannot be made by mere asking of the party but the inherent power must be exercised with caution and circumspection. It has been held that for arriving at a definite conclusion of the rival claims it would be obligatory for the trial Court to allow the parties to lead evidence. The learned Court below has held that ad interim mandatory injunction is not a remedy which can be easily granted. An order can be made only in the circumstances when it is clear that status quo has been altered by one of the parties to the litigation and there is a clear evidence to that effect. The learned judge has held that application under Section 151 of the Code of Civil Procedure is not maintainable when the aforesaid miscellaneous cases are pending.

3. The petitioners' case in short is as follows :-

"The petitioner filed a suit for declaration, recovery of khas possession and permanent injunction in the Court of the learned Civil Judge (Junior Division), 3rd Court, Baruipur, South 24-Parganas. In the said suit the petitioner filed an application for temporary injunction against the defendant Nos.1, 2, 3 and defendant No.12. The said application for temporary injunction was contested by defendant Nos.1, 2, 3 and defendant No.12 by filing two separate written objections. It is the specific case in the written objection filed by defendant Nos.1, 2 and 3 that in the suit property plaintiffs have neither got any title, nor possession.

By an order dated 22nd February, 2011, on consideration of the plaintiffs' prayer for ad interim injunction, the learned trial Court was pleased to allow the plaintiffs' prayer for ad interim injunction. Both the plaintiffs, the defendant Nos.1, 2, 3 and defendant No.12 were directed to maintain status quo in respect of nature and character of the suit property and not to fill up the suit tank with earth or cut down trees till 18th March, 2011. By an order dated 26th September, 2011, the learned Court below made the ad interim order of injunction passed on 22nd February, 2011 absolute till disposal of the suit and the application for temporary injunction was disposed of on contest.

It is the petitioners' case that despite the order of injunction passed by the learned trial Court defendants/opposite parties have violated the said order and in order to implement the said order of injunction the plaintiffs have filed an application under Section 151 of the Code of Civil Procedure praying that the order dated 22nd February, 2011, passed by the learned Court below should be implemented by issuing necessary direction upon the local police authorities. In support of the petitioners' case Mr. Jibon Ratan Chatterjee, senior advocate, submitted that it is settled law that an application under Section 151 of the Code of Civil Procedure is mainta