22.01.2025 Item No.

A 190 Saswata C.O. 1707 of 2024 Chittaranjan Barai versus Madan Bhunia Mr. R.Mahata Mr. A.S.Ray …For the petitioner

1. Leave is granted to the learned advocate on behalf of the petitioner to append the certified copy of order of the order dated 23rd April, 2024.

2. Challenging the order dated 23rd April 2024 passed by the Learned Additional District Judge, 6th Court, Paschim Medinipur in Misc. appeal no.56 of 2021 arising out of the order dated 16th June 2021 passed by the Learned Civil Judge (Junior Division), First Court, Paschim Medinipur in Title Suit no. 292 of 2021 refusing to pass any ex parte ad interim order, the instant revisional application has been filed.

3. The petitioner’s case proceeds on the premise that the plaintiff/petitioner had filed a suit for declaration and injunction before the Learned Civil Judge (Junior Division), First Court, Paschim Medinipur which was registered as Title Suit no. 292 of 2021. Simultaneously, the plaintiff also filed an application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 (hereinafter referred to as the “Code”). By order dated 16th June 2021, the Learned Judge had refused to pass any ex parte ad interim order of injunction. Being aggrieved, the petitioner had filed a miscellaneous appeal which was registered as Misc. appeal no. 56 of 2021.

4. The petitioner also filed an injunction application in connection with the aforesaid miscellaneous appeal and the Learned District Judge, Paschim Medinipur by order dated 31st July 2021 on being satisfied with the case made out by the petitioner and noting the apprehension of irreparable loss and injury due to illegal construction of the defendant, had passed an ex parte ad interim order, thereby restraining the defendant from making any construction over the B1 schedule property without obtaining permission from local Panchayat and without leaving 0.90 meter space from the boundary line. By such order the petitioner was also directed to comply with the provisions of Order XXXIX Rules 3 (a)(b) of the Code.

5. Records would reveal that the petitioner had complied with the provisions of Order XXXIX Rule 3(a)(b) of the Code and the opposite party had appeared before the Learned Court, and on 29th May 2023 and had sought for time. Ultimately, the said miscellaneous appeal was heard and decided ex parte by order dated 23rd April 2024 and the Learned Judge was of the view that since there is a need for maintaining caution before granting ex parte ad interim injunction, the Learned Civil Judge had rightly refused the ad interim injunction and by proceeding on such premise had refused to interfere with the order dated 16th June 2021 passed by the Learned Civil Judge (Junior Division), First Court, Paschim Medinipur.

6. Mr. Mahata, learned advocate appearing in support of the instant revisional application by drawing attention of this Court to the Commissioner’s report would submit that the Commissioner’s report would demonstrate that in violation of the order passed by the Learned Court, the opposite party has been constructing pucca structure. He submits that the opposite party was put on notice prior to disposal of the miscellaneous appeal, as such the Learned Judge ought not to have rejected the miscellaneous appeal by refusing to interfere with the order passed by the Learned Civil Judge (Junior Division), First Court, Paschim Medinipur. He would submit that the interim order passed in the miscellaneous appeal had continued and remained valid till dismissal thereof. To establish his possessory right he has placed before this Court copies of two title deeds and a record of rights.

7. Having heard the learned advocate appearing for the petitioner, and considering the materials on record including the title deeds and the record of rights, I am of the view that the instant revisional application is required to be heard. Taking note of the prima facie case made out and also noting that an interim order was subsi