JUDGMENT :

Sabyasachi Bhattacharyya, J.

1. The present appeal has been preferred against an order dated September 19, 2023, whereby the application of the defendant no.1/appellant under Order XXXIX Rule 4 of the Code of Civil Procedure (in short “the Code”) for vacating an ex parte ad interim order of injunction dated September 13, 2021 was dismissed and the ad interim injunction was extended.

2. Learned senior counsel appearing for the appellant argues that the initial order of ad interim injunction was obtained ex parte by suppression of material facts. Prior to the filing of the present suit, another suit had been filed by the plaintiffs/respondents for similar reliefs.

3. The filing of the said suit and the refusal of the prayer for injunction made by the plaintiffs/respondents in the said suit has been completely suppressed while obtaining the ex parte ad interim order, thereby bringing the case within the fold of Order XXXIX Rule 4 of the Code.

4. Learned senior counsel points out that in the previous suit filed between the same parties and on the same subject property, the plaintiffs/respondents took a plea that it had a right of easement because the suit property (a lawn) was being used as a playground and for other purposes by the students and teachers of the plaintiff/school. However, in the same breath, a mutually destructive plea of irrevocable licence was also taken.

5. It is argued that the contradiction between the simultaneous claims of easementary right and licence has been sought to be mitigated by filing the present suit during pendency of the previous suit by suppressing the fact of the subsistence of the previous suit and seeking now a declaration that the plaintiffs have easementary right to enjoy free flow of air and light “through and from” the suit lawn.

6. It is contended that the learned trial Judge completely overlooked the said facts while observing that the defendant no. 1/appellant has failed to lay particulars of alleged suppression of material facts. It was further held erroneously by the learned trial Judge that the petition under Order XXXIX Rule 4 of the Code falls short of its requirement.

7. In the cryptic reasoning portion of the impugned order, the learned trial Judge also observed that “admittedly” the plaintiffs/respondents are in permissive possession of the plaintiffs’ property, which is completely contrary to the records, since at no point of time did the defendant admit any such permissive possession.

8. Learned senior counsel takes the Court through the previous order of rejection of injunction by the learned trial Judge in the prior suit, which was affirmed by a Division Bench of this Court. While so affirming, the Division Bench observed that the plaintiffs/respondents had claimed its permissive possessory right to use the said lawn as a playground for the students and teachers of the plaintiff school. Though certain documents regarding grant of such permission allegedly issued by the defendant no. 1 were annexed to the injunction application, it was observed by the said Division Bench, no document was annexed to the injunction application showing that the plaintiffs in fact were in possession of the disputed lawn as on the date of filing of the suit.

9. Accordingly, leave was granted to the plaintiffs, on the prayer of the learned Advocate appearing for the plaintiffs, to file a supplementary affidavit before the trial court bringing on record the documents to show the plaintiffs’ possession of the suit lawn. However, an affidavit was subsequently filed by the plaintiffs before the learned trial Judge in connection with the earlier suit, which was diametrically opposite to the leave obtained before the Division Bench, by reiterating that there was no document to show permissive possession of the plaintiffs in respect of the property.

10. Learned senior counsel places reliance on a judgment reported at (2010) 14 Supreme Court Cases 38 (Ramjas Foundation and another Vs. Union of India and o