JUDGMENT :

1. Heard Mr. S. Dutta, learned Senior Counsel for the appellant. Also heard Mr. G. N. Sahewalla, learned Senior Counsel for the respondents.

2. This is an application under Order 43 Rule 1(r) of the Code of Civil Procedure read with Section 151 of the Code of Civil Procedure for modification and/or setting aside the impugned order dated 17.11.2022, passed by the Court of learned Civil Judge, Dibrugarh, in Misc. (J) Case No. 126 of 2022 (in Title Suit No. 166 of 2022).

3. The facts leading to the present appeal is that the present appellant, as the petitioner, filed a petition under Order XXXIX Rule 1 & 2 of the Code of Civil Procedure, which was registered as Misc. (J) Case No. 126 of 2022, in connection with Title Suit No. 166/2022, seeking temporary injunction, which was rejected vide Order dated 17.11.2022.

4. On being highly aggrieved and dissatisfied with the order dated 17.11.2022, passed by the learned Court of Civil Judge, Dibrugarh, in Misc(J) Case No. 126/2022 in connection with Title Suit No. 166/2022, the appellant has preferred this appeal on the following grounds, amongst others:

(i) That the learned Trial Court has erred in law as well as facts in rejecting the application filed by the appellant, as the petitioner, under Order XXXIX Rule 1 & 2 of the Code of Civil Procedure in Misc. (J) Case No. 126/2022, and as such, the impugned order, dated 17.11.2022, passed by the learned Civil Judge, Dibrugarh, is liable to be set aside and quashed.

(ii) That the learned Court below, while disposing the petition under Order XXXIX Rule 1 & 2 of the Code of Civil Procedure, has completely overlooked and/or misunderstood the importance and/or impact of the provision of “pre-emption” under which the appellant, as a plaintiff/petitioner, has exercised his right over the suit property, which caused serious miscarriage of justice and hence, the order passed by the learned Civil Judge, Dibrugarh, is liable to be set aside and quashed.

(iii) That the learned Civil Judge, Dibrugarh, arrived at a specific finding of there being a “prima facie case in favour of the appellant/petitioner/plaintiff” ought not to have rejected the prayer of injunction as had been sought for by the appellant. Taking the advantage, the opposite party/defendant No. 1, in result, changing the nature and character of the suit land and which shall in turn render the “prima facie” case of the appellant completely redundant and/or infructuous and for which, the impugned order dated 17.11.2022 is liable to be set aside and quashed.

(iv) The learned Court below came to a finding that the opposite party No. 1 is already in possession of the suit premises, though there was no such averment pleaded in the written objection of the opposite party No. 1, and moreover, the appellant, in his pleadings in respect of Misc. (J) Case No. 126/2022, had categorically stated that opposite parties are not possessing the suit premises and that being so, the impugned order, dated 17.11.2022, passed by the learned Civil Judge, Dibrugarh, in Misc. (J) Case No. 126/2022, is liable to be set aside and quashed.

(v) That the findings of the learned Civil Judge, Dibrugarh, to the effect that the balance of convenience is not in favour of the appellant/ petitioner as the opposite party No. 1 has already taken possession of the suit property which is erroneous inasmuch as the learned Court below failed to take note of the fact that the appellant, as the plaintiff/petitioner, had filed the Title Suit as well as the injunction petition on 30.09.2022. But, the learned Court below directed for issuance of notice upon opposite party vide its order dated 30.09.2022 in spite of specific pleadings that the opposite party No. 1 was yet to take possession of the suit property. Thus, the learned Civil Judge, Dibrugarh, had not only overlooked the urgency of the petitioner/ plaintiff, but also by way of completely disregarding the fact that the appellant as petitioner/plaintiff being aware o