31.07.2025 Item No. 14. Court No.37.

AB (Bench ID 266311) F.M.A. 570 of 2025 With CAN 1 of 2025 Nirmala Malhotra & Anr.

Vs Indira Khanna & Ors.

Mr. Abhratosh Majumdar, Sr. Adv, Mr. Dhiraj Trivedi, Sr. Adv, Mr. P. P. Roy, Mr. R. K. Dubey, Mr. Samrat Chakraborty ….for the Appellants.

Mr. Subhankar Nag, Ms. Priyanka Tibrewal, Ms. Rashhmi Singhee …..for the Respondent No.1 & 2. Dictated by Arijit Banerjee, J.

1. Affidavit of service filed in Court today, be kept with the records.

2. By consent of the parties, the appeal and the connected application are taken up for hearing together.

3. This appeal is directed against an order dated December 7, 2024, passed by the learned 4^th Civil Judge (Sr. Division) at Alipore in Title Suit No.416 of 2008. The present appellants are defendant nos.2 and 3 in the suit.

4. The suit is one for partition of joint properties. It was instituted in 2008. An order of status quo was passed which was affirmed sometime in the year 2017.

5. The defendant nos.2 and 3, in or about December, 2024, made an application before the learned Trial Court for variation or modification of the order of status quo to permit the said defendants to install a home elevator from the ground floor to the top floor of the building without any provisions of any pit on the ground floor, but with emergency exit points on the other floors of the said building.

6. The plaintiff opposed such application.

7. By the order impugned, the learned Trial Court rejected the application made by the defendant nos.2 and 3 under Order 39 Rule 4 of the Code of Civil Procedure. The operative portion of the impugned order reads as follows:

“Defendant no.3 files the instant application on 18.08.2023 and praying for installation of a home a elevator by modifying the order of injunction dated 14.07.2017 by invoking the provision as laid down under Rule 4 to Order 39 CPC read with Section 151 CPC.

The scope of an application of Rule 4 to Order 39 CPC is regarding discharge, variation of an injunction order which has been passed ex parte and if the injunction order has been obtained by making a false or misleading statement in relation to a material particular.

From the instant application of defendant no.3, there is no such allegation leveled regarding any misleading statement by plaintiff in obtaining the order of the temporary injunction till disposal of the suit and therefore, no question to invoke the provision as contained in Rule 4 to Order 39 CPC will arise.

Secondly, the instant application of defendant no.3 do not contain any description of property on which the installation of a home elevator has been sought for and thirdly, the question of installation of a home elevator from the ground floor to the top floor of the building is not the subject matter of this suit and therefore, no question to allow the prayer of defendant no.3 is arising and the instant application is thus not maintainable.

At the time of hearing Ld. Advocate representing defendant nos.2 and 3 has pointed out about submission of Engineer Commission report pertaining to this suit but the said report has no relevancy in view of aforesaid findings of the Court.

Therefore, the instant application of defendant no.3 is devoid of any merit and is not maintainable and is liable to be rejected.”

8. We have heard learned Counsel for the parties.

9. Mr. Majumdar, learned senior advocate representing the appellants, says that the learned Trial Judge completely misdirected himself in not considering the provisos to Order 39 Rule 4 CPC. It is not that only if an order is obtained by misrepresentation of fact or fraudulently that the same can be discharged or varied. Change of circumstances may also justify or necessitate variation or modification of an interim order. He further says that the defendant nos.2 and 3 are both octogenarians and have serious difficulty in moving around or climbing floors. Installation of a home elevator is absolutely essential and has also been medically prescribed. In this conn