GOPAL GHOSH Vs. SEACEM PAINTS INDIA PVT LTD

JUDGEMENT

(1.) In connection with a suit for declaration and permanent injunction instituted by the petitioners (hereinafter the plaintiffs), an application for temporary injunction was filed by them. The learned Judge of the Trial Court by order dated December 2, 2004 refused the prayer for ex parte ad interim injunction on the ground that there was no urgency. The order was carried in appeal by the plaintiffs. The learned District Judge, Alipore, South 24-Parganas admitted the misc. appeal by order dated December 7, 2004 on condition that certified copy of the order impugned should be filed within time limit and directed issuance of notice fixing February 2, 2005 for return and order. While considering an application under Order 39 Rules 1 and 2 of the Civil Procedure Code filed by the plaintiffs, the learned District Judge on the same date directed issuance of notice upon the defendants to show cause within ten days of service thereof as to why they shall not be restrained as prayed for by the plaintiffs. On the question of grant of ex parte ad interim relief, the learned District Judge was satisfied that the defendants had been encroaching upon the property of the plaintiffs to short-cut their ingress to and egress from their own property and they had been continuously threatening and criminally intimidating the plaintiffs' guards and watchmen with intent to make way for such ingress and egress and being convinced that the plaintiffs had been successful in establishing a strong, prima facie case and considering the urgency in the matter, he granted interim injunction, as prayed for, till January 7, 2005 with direction to the plaintiffs to comply with the provisions of clauses (a) and (b) of the proviso to Rule 3 of Order 39 of the Code. The defendants after service entered appearance and contested the application for injunction by filing written objection. On a contested hearing, the learned Additional District Judge, 5th Court, Alipore, South 24-Parganas by judgment dated June 7, 2011 dismissed the misc. appeal of the plaintiffs and vacated the ad interim order of injunction passed therein and directed the Trial Court to proceed with hearing of the injunction application and trial of the suit as per law.

(2.) The said judgment passed by the lower Appellate Court has been impugned in this revisional application under Article 227 of the Constitution by the plaintiffs.

(3.) Mr. Roy Chowdhury, learned senior advocate appearing for the plaintiffs, contended that the manner in which the lower Appellate Court dismissed the misc, appeal is not legal. According to him, the learned Judge did not assign reason for dismissing the misc. appeal although the plaintiffs had set up prima facie case for trial. He invited the Court's attention to the deed by which the defendants acquired right, title and interest in respect of their property to contend that they have no right of way over the plaintiffs' property. Also, the learned Judge acted illegally in not extending the ad. interim order of injunction to be operative till disposal of the injunction application by the Trial Court despite establishment of the defendants' having no right to encroach upon the property of the plaintiffs and the balance of convenience being in favour of such extension. It was also contended that regard being had to the fact that the ad interim order of injunction was operative right from December 7, 2004 till June 7, 2011, this Court in the interest of justice may consider directing the injunction to continue for a further period of two/three months and to direct the Trial Court to give its final decision on the application for injunction pending before it in the meantime.