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Form No. J(2)

In the High Court at Calcutta

Civil Appellate Jurisdiction

Appellate Side

Present: The Hon’be Justice Sabyasachi Bhattacharyya

And

The Hon’ble Justice Supratim Bhattacharya

F.M.A. 1867 of 2025

IA No: CAN 1 of 2025

Kashi Prasad Jhajharia HUF

Vs.

Sarawogi & Sandeep Builders and Developers LLP and others

For the appellant : Mr. Somnath Roy Chowdhury

Ms. Arpita Chowdhury

For the respondents/Caveators : Mr. Saptanshu Basu

Mr. Mahendra Prasad Gupta

Ms. Moumita Dhar

Heard on : 23.12.2025

Judgment on : 23.12.2025

Sabyasachi Bhattacharyya, J.:-

1. The affidavit-of-service filed in court today be kept on record.

2. The present challenge has been preferred against an order

whereby an application under Order XXXIX Rule 4 of the Code of

Civil Procedure filed by the respondents has been allowed by the

learned Trial Judge, thereby vacating an ad interim order of

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status quo obtained by the plaintiff/appellant in a declaratory

suit.

3. The suit filed by the plaintiff/appellant is primarily for

declaration of the plaintiff’s 1/6^th share in the suit property as

well as for declaration challenging transfer deeds executed by

the defendants/respondents inter se.

4. In such suit, on temporary and ad interim injunction being

sought by the plaintiff/appellant, the learned Trial Judge

initially granted status quo as regards possession as well as

changing the nature and character of the suit property.

5. Subsequently, the respondents filed an application under Order

XXXIX Rule 4 of the Code, thereby pointing out that there is a

subsisting order passed by the Kolkata Municipal Corporation

under Section 412A of the Kolkata Municipal Corporation Act,

1980, directing submission of necessary documents as asked by

the building department to process plan proposal under Section

412A of the KMC Act, 1980 as well as the KMC Building Rules,

2009 as expeditiously as possible. The premise of such order is

that the suit building is in a dilapidated and precarious

condition and may crumble down any day.

6. The construction work, as per the said order dated February 2,

2022 is also to be completed within the stipulated period as per

plan, to be sanctioned by the KMC.

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7. Learned senior counsel appearing for the respondents contends

that unless construction is made and the building is

renovated/reconstructed, there would be utter non-compliance

of the notice of the KMC, which has not been challenged before

any forum by any of the parties.

8. Secondly, it is contended by learned senior counsel that there is

serious risk to life and limb of the residents of the house as well

as the persons in the vicinity unless the order of the KMC is

carried out immediately.

9. Thus, on such valid ground only, the ad interim order granted

was vacated, particularly since such order of the KMC was

suppressed in the injunction application and the plaint.

10. After carefully considering the submissions of the parties, we

find annexed to the present papers an order of the Kolkata

Municipal Corporation dated February 2, 2022 where the KMC

has also cited a previous notice under Section 411(2) of the KMC

Act, 1980, which provides that the Municipal Commissioner

may, if it appears to him necessary so to do, cause a proper

hoarding or other means of protection to be put up at the

expense of the owner at the site.

11. Section 412A, in Clause (iii) thereof, provides that

simultaneously with the making of a declaration under Clause

(ii), the KMC will serve a notice upon the owner or owners, as

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the case may be, and paste it on the outdoor of the building

providing an option to the owner or owners, as the case may be,

of the building to reconstruct the building according to the plan to

be sanctioned by the Corporation with such expedition as

possible.

12. Thus, this court is convinced that before obtaining an order of

ad interim injunction, the said fact was necessarily to be

disclosed to the learned Trial Judge.

13. Moreover, not only was suppression of such fact a material

consideration in the application under Order XX