The Court should be cautious and circumspect in passing a temporary mandatory injunction at the interlocutory stage and must consider the respective stands of the parties and the allegations made in an application seeking police help before passing such an order.

Harish Tandon, J.

This is one of the apparent examples how the unscrupulous litigants misused and abused the order of status quo passed by the Trial Court without specifying who is in possession in respect of the suit premises.

2. The Supreme Court in case of Kishore Kumar Khaitan & Anr v. Praveen Kumar Singh reported in (2006) 3 SCC 312 strongly deprecates the Court to pass an order of status quo when the possession is seriously disputed by the respective parties without categorical findings as possession of any of the parties in these words :

"It is necessary to notice at this stage that in an original suit of the nature, it was not appropriate for the Additional District Judge to pass an order directing the parities to maintain status quo, without indicating what the status quo was. If he was satisfied that the appellant before him had made out prima facie case for an ad interim ex parte injunction and the balance of convenience justified the grant of such an injunction, it was for him to have passed such an order of injunction. But simply directing the parties to maintain status quo without indicating what the status quo was, is not an order that should be passed at the initial stage of a litigation, especially when one court had found no reason to grant an ex parte order of injunction and the appellate court was dealing with only the limited question whether an ad interim order of injunction should or should not have been granted by the trial court, since the appeal was only against the refusal of an ad interim ex parte order of injunction and the main application for injunction pending suit, was still pending before the trial court itself. Therefore, we are prima facie of the view that the Additional District Judge ought not to have passed an equivocal order like the one passed in the circumstances of the case. But of course, that aspect has relevance only to the extent that before ordering an interim mandatory injunction or refusing it, the court has first to consider whether the plaintiff has proved that he was in possession on the date of suit and on the date of the order and he had been dispossessed the next day. Unless a clear prima facie finding that the plaintiff was in possession on those dates is entered, an order for interim mandatory injunction could not have been passed and any such order would be one without jurisdiction."

3. The plaintiff/opposite party filed a suit for declaration of his tenancy right in respect of the suit premises. In the said suit an application for temporary injunction was taken out and moved for passing the ad interim order of injunction on the ground of urgency.

4. By order no. 2 dated May 7, 2002, the learned Civil Judge (Jr. Division), Sealdah passed an ex parte ad interim order of injunction directing both the parties to maintain status quo in respect of the possession of the suit property. While the said suit was pending, another suit was filed by the plaintiff/opposite party for recovery of possession on the ground of revocation of license. The said suit was initially filed before Civil Judge (Sr. Division), 1st Court, Sealdah, which stood transferred to Civil Judge (Jr. Division), Additional Court, Sealdah and renumbered as Title Suit No. 141 of 2007. The suit for declaration was also transferred to the same Court with new number Title Suit No. 32 of 2010.

5. Alleging that despite the order of injunction in the form of status quo being known and communicated to the petitioner, he illegally and forcibly dispossessed him from the suit premises and prayed for a direction upon the police authorities to restore back the possession of the plaintiff/opposite party. The Trial Court allowed the application directing the police authorities to put the plaintiff/opposite party back in possession relying upon a judgment of the Division Bench rendered in case of Sujit Pal v. Prabir Kumar Sun & Ors reported in AIR 1986 Calcutta 220. The learned advocate for the opposite party further reli