CIVIL APPEAL 116 of 2012 on 6 March 2012

09.12.2021

(S/L-30)

Ct.-18

(Susanta)

(Via Video Conference)

C.O. 816 of 2012

With

I.A. No CAN 1 of 2020 (Old CAN 3844 of 2020) I.A. No CAN 2 of 2020 (Old CAN 3846 of 2020) I.A. No CAN 3 of 2020 (Old CAN 3847 of 2020)

Dilip Kumar Sen

-Vs-

M/s. P.S. Enterprises & Ors.

Mr. Kishore Mukherjee,

…… For the Petitioner.

Mr. Gouranga Kumar Das,

….. For the Opposite Party No.1(a)

Re: I.A. No CAN 1 of 2020 (Old CAN 3844 of 2020) Re: I.A. No CAN 3 of 2020 (Old CAN 3847 of 2020)

The application for restoration of therevisional application dismissed for default onDecember 03, 2019 and the application forcondonation of delay thereof are taken uptogether for consideration.

Perused the applications, sufficientexplanations have been offered justifying thedelay in filing the application for restoration. Itfurther appears that petitioner was prevented bysufficient cause for not appearing before thisCourt when the matter was called on for hearing.

The delay in filing the application forrestoration is condoned. The order dated December 3, 2019 is recalled. The C.O. 816 of2012 is restored to its original file and number.

The interim order passed on March 18, 2012is also restored.

The application being I.A. No CAN 1 of 2020(Old CAN 3844 of 2020) for condonation of delayand application being I.A. No CAN 3 of 2020 (OldCAN 3847 of 2020) for restoration are thusdisposed of without any order as to costs.

C.O 816 of 2012

The revisional application under Article 227of the constitution of India is directed against theorder dated March 6, 2012 passed by thelearned District Judge-in-Charge, Alipore,District-24-Parganas (South) in Misc. Appeal No.116 of 2012 affirming the order dated February18, 2012 passed by the 1[st] Court of learned CivilJudge (Junior division), Alipore, District-24-Parganas (South) in Title Suit No. 82 of 2012.

The learned Trial Judge refused to pass anad interim order of injunction on an applicationfiled by the petitioner under Order XXXIX Rules1 & 2 of the Code of Civil Procedure.

The petitioner aggrieved by the said orderhas preferred the connected MiscellaneousAppeal.

The Appeal Court below by the orderimpugned has also refused the prayer of thepetitioner for an ad interim order of injunction.

Mr. Mukherjee, learned advocate appearingon behalf of the petitioner submits that thelearned Trial Judge may be directed to disposeof the injunction application expeditiously andpending such disposal the ad interim order ofinjunction passed by the Co-ordinate Bench atthe time of admission of the present revisionalapplication may be kept in force.

Learned advocate for the opposite partiesalso prays for expeditious disposal of theinjunction.

The Co-ordinate Bench while admitting thepresent revisional application on March 15, 2012passed the following order:- “ from the averments made in the plaintas well as in the injunction application,prima facie it appears that after thecompletion of the construction in terms ofthe said development agreement, the saiddeveloper has sold out the portion allottedto them in terms of the said agreementand also handed over the possession ofthe remaining portion to the plaintiff-petitioner.

Thus, this Court finds that a prima faciecase has been mad out.The opposite parties are restrained fromcreating any obstruction and disturbancein peaceful possession and enjoyment ofthe suit rooms till the disposal of therevisional application”.

There is nothing on record requiring variationand/or modification of the said order. Let the saidorder continue till the disposal of the applicationunder Order XXXIX Rules 1 and 2 of the Code filedby the petitioner in the connected suit.

The learned Trial Judge is requested toexpedite the disposal of the said applicationwithout granting any unnecessary adjournment toeither of the parties.

In view of the order passed in the presentrevisional application there is no necessity ofkeeping the connected Miscellaneous Appeal No.116 of 2012 pending, same may be treated asdisposed of.

C.O. 816 of 2012 is thus allowed without anyorder as to costs.

In view of the disposal of the revisionalapplication the connected application for urgencybeing I.A. No CAN 2 of 2020 (Old CAN 3846 of2020) has become infructuous and is disposed ofaccordingly.

Urgent photostat certified copy of this order, ifapplied for, be supplied to the parties subject tocompliance with all requisite formalities.

(Biswajit Basu, J.)