ASHOKE BOSE Vs. KESHARSHYAM CONSTRUCTION PVT LTD

JUDGEMENT

(1.) THIS application is at the instance of the defendant and is directed against the order dated December 18, 2010 passed by the learned Additional District Judge, 11th Court, Alipore in Misc. Appeal No.78 of 2010 arising out of the Title Suit No.860 of 2008.

(2.) THE plaintiff / opposite party herein instituted a suit for a decree of declaration that the defendant does not have any right, title and interest of whatsoever nature in any part or portion of the suit premises, save and except, the suit property, perpetual injunction restraining the defendant from encroaching upon any part or premises of the suit premises other than the suit property, that is, common areas, passage or compound of the suit premises by parking his car or allowing any third party to park cars in any other manner, mandatory injunction and other reliefs. THE defendant / petitioner herein is contesting the said suit. THE plaintiff / petitioner filed an application for temporary injunction and by Order No.29 dated January 5, 2010, the learned Trial Judge allowed the application under Order 39 Rules 1 and 2 of the C.P.C. on contest. Being aggrieved, the defendant filed the misc. appeal being Misc. Appeal No.78 of 2010 and the said misc. appeal was dismissed on contest with cost. Being aggrieved, the defendant has preferred this revisional application. Now, the question is whether the impugned order should be sustained.

(3.) MR. S.P. Mukherjee appearing on behalf of the petitioner has referred to the decision of Dorab Cawasji Warden v. Coomi Sorab Warden and ors. reported in (1990) 2 SCC 117 particularly the paragraph nos.19 and 24, the decision of Metro Marins and anr. v. Bonus Watch Co. (P) Ltd. and ors. reported in (2004) 7 SCC 478 particularly paragraph no.9 on mandatory injunction and thus, he submits that the learned Lower Appellate Court should have rejected the prayer of the plaintiff for temporary injunction.