D/L.35 & 36.

May 21, 2025.

.

MNS FMAT No. 127 of 2025 +

CAN 1 of 2025(Section 5)

with FMAT No. 141 of 2025 +

CAN 1 of 2025(stay application)

Artistery Properties Private Limited and another Vs.

Shri Sunil Kumar Roy and others Mr. Sabyasachi Chowdhury, Mr. Rishad Medora, Mrs. R. Hariharan, Mr. S. Saha,, Mr. S. Rao … for the appellants. Mr. Satyajit Talukdar, Mr. Arindam Chatterjee …for the respondent no. 10.

Re: CAN 1 of 2025 (Section 5 application)

1. Despite service, none appears for the respondents apart from proforma respondent no. 10.

2. This is an application for condonation of delay filed in connection with FMAT No. 127 of 2025.

3. Upon hearing learned senior counsel appearing for the appellants, we find that the reason for the delay in preferring the appeal has been made out in paragraph nos. 4 to 7, primarily on the ground that there was a change of management of the appellant no. 1 in favour of the appellant no. 2, which caused difficulty on the part of the appellants to trace out the relevant documents for preferring the appeal.

4. We are satisfied with the sufficiency of the cause shown for the delay.

5. Accordingly, CAN 1 of 2025 is allowed, thereby condoning the delay in preferring FMAT No. 127 of

2025.

6. The appeal is registered accordingly.

7. We take up both the appeals, being FMAT No. 127 of 2025 and FMAT No. 141 of 2025, for hearing under Order XLI Rule 11 of the Code of Civil Procedure.

8. Heard learned senior counsel for the appellants.

9. We find from the impugned order that the learned trial Judge granted the initial ex parte ad interim injunction and subsequently extended the same on the basis of the case made out by the plaintiffs/respondents in their plaint and injunction application, against which orders the appeals have been respectively preferred.

10. From a perusal of the impugned order, we find that certain documents in the nature of records of rights and other land records, produced by the plaintiffs/respondents, were primarily relied on by the learned trial Judge for granting status quo order in respect of the nature, character and possession in respect of the suit property without arriving at any specific finding as to who is in possession of the property.

11. Learned senior counsel appearing for the appellants seeks to rely on several documents annexed to the stay application filed in connection with FMAT No. 141 of 2025, which prima facie indicate that the appellants have title to the property as well as possession inasmuch as the property was apparently acquired and subsequently allotted to the appellants.

12. However, we desist from interference at this stage since the documents sought to be relied on by the defendants/appellants were not before the learned trial Judge at the point of time when the initial ad interim injunction was passed, the test for which would be the averments made in the plaint and the injunction application. Such order was extended from time to time.

13. Since the main injunction application is pending before the learned trial Judge and the pleadings have been exchanged in respect of the same as well as an application under Order XXXIX Rule 4 of the Code of Civil Procedure (in short “the Code”) is pending at the behest of the appellants before the learned trial Judge, we are of the opinion that if the present appeals are admitted and decided and we express our opinion on the merits of those, the same might prejudicially affect the adjudication of the injunction application pending in the trial court.

14. Moreover, the present remedy of the appellants will be illusory to some extent inasmuch as the documents sought to be relied on by them substantially were not before the learned trial Judge at the time of passing the impugned order, and therefore cannot be looked into for adjudicating the present appeals.

15. Accordingly, we dismiss the appeals, being FMAT No. 127 of 2025 and FMAT No. 141 of 2025, at the admission stage under Order XLI Rule 11 of the Code, however, in the light of the abo