BAIDYANATH MODAK Vs. SWAPNA MODAK

JUDGEMENT

(1.) CHALLENGE is to the order dated September 5, 2006 passed by the learned Additional District Judge, Second Court, Hooghly in Misc. Appeal No.84 of 1999 thereby reversing the order no.30 dated June 8, 1999 passed by the learned Civil Judge (Senior Division), First Court, Hooghly in Title Suit No.62 of 1997.

(2.) THE petitioner was the defendant no.1 of the title suit filed by the plaintiff/opposite party. THE plaintiff instituted the said suit for declaration and partition. In that suit, the defendants in two sets, namely, the defendant nos.1 to 13 in one set and the defendant nos.14 & 15, namely, the opposite party nos.2 & 3, in another set, are contesting the said suit by filing separate written statements. THE defendant nos.1 to 13 filed an application for temporary injunction under Order 39 Rule 1 & 2 of the C.P.C. THE defendant nos.14 & 15 filed an objection against that application with the caption objection but, in fact, it was a counter-claim to have a right of possession of common place, such as, staircase, right to go to the roof for repair, etc. THE learned Trial Judge allowed both the petitions by the order no.30 dated June 8, 1999. Being aggrieved, the defendant nos.1 and others preferred a misc. appeal being Misc. Appeal No.84 of 1999 which was disposed of by the impugned order thereby reversing the order no.30 dated June 8, 1999 passed by the learned Trial Judge and giving liberty to the defendant nos. 14 & 15 to file separate objection against the application for temporary injunction filed by the defendant nos.1 to 13 and at the same time also by giving liberty to the defendant nos.1 to 13 to file a separate counterobjection against the written objection filed by the defendant nos.14 & 15. Being aggrieved by the said order of reversion, the defendant no.1 has preferred this application. Now, the question is whether the impugned order should be sustained.

(3.) UNDER the circumstances, the learned lower appellate Court has come to a finding that without ascertaining the real picture regarding the respective possession and user of the properties in the dwelling house, the order under challenge before him, cannot be supported. He has also noticed that the order under challenge before him, suffers from irregularity and impropriety for the reasons discussed above. He has set aside the order no.30 dated June 8, 1999 remanding the matter for disposal afresh giving liberties to the parties to file written objections in respect of the rival claims filed by the parties.