ASHOKA MUKHERJEE Vs. SANTOSH KUMAR SAHA

JUDGEMENT

(1.) This application is directed against the order dated 14.05.2008 passed by the learned Civil Judge (Senior Division), Kandi in Misc. Appeal No.14 of 2007 thereby setting aside the order no.35 dated 21.05.2007 passed by the learned Civil Judge (Junior Division), Second Court, Kandi in Title Suit No.11 of 1965.

(2.) The plaintiff is the petitioner herein. He filed an application for temporary injunction in the suit restraining the defendants/opposite parties from running any business in the suit shop room. That application was allowed ex parte. Thereafter, the defendants filed an application under Order 39 Rule 4 of the Code of Civil Procedure for setting aside the order of injunction. That application was dismissed by an order dated 21.05.2007. Being aggrieved, the defendants preferred Misc. Appeal No.14 of 2007 and the appellate court allowed the misc. appeal thereby setting aside the order dated 21.05.2007 directing the learned court below to consider the application under Order 39 Rule 4 of the C.P.C. afresh after giving both sides an opportunity of being heard. Being aggrieved, the plaintiff / petitioner has preferred this application.

(3.) Upon perusal of the impugned order, I find that the learned appellate court has used its discretionary power for the ends of justice, equity and good conscience and for that reason an opportunity was given to the defendants / opposite parties to move the said application afresh. The learned Advocate for the appellants/opposite parties herein did not participate at the time of disposal of the application under Order 39 Rule 1 & 2 of the C.P.C. Since the learned appellate court has exercised his discretionary power for the ends of justice, I am of the view that the impugned order should not be disturbed and in fact, an opportunity was given to the appellants of the appellate court to ventilate their grievance on the basis of documents and papers they intended to produce before the learned Trial Court. Therefore, the present applicant has not suffered any prejudice by the impugned order. So, I hold that by exercising the revisional jurisdiction, this court shall not interfere with the discretionary power exercised by the lower appellate court.