CHINMOY BHOWMICK Vs. BAPI CHOWDHURY

JUDGEMENT

(1.) THIS application is at the instance of the plaintiff and is directed against the Order dated February 7, 2012 passed by the learned Additional District Judge, 5th Court, Alipore in Misc. Appeal No.460 of 2011 arising out of Order No.7 dated September 21, 2011 passed by the learned Civil Judge (Junior Division), 3rd Court, Alipore in Title Suit No.12954 of 2011.

(2.) THE plaintiff/petitioner herein instituted a suit being Title Suit No.12954 of 2011 for declaration and injunction against the opposite party before the learned Civil Judge (Junior Division),

(3.) THE plaintiff has contended that the defendant is creating obstruction in the enjoyment of the garage in suit and as such, he has prayed for temporary injunction against the defendant restraining him from creating any obstruction and interference in the peaceful enjoyment of the suit property till disposal of the suit. Since, the delivery of possession in favour of the plaintiff is an admitted fact, the defendant is required to show that he got possession back from the plaintiff but I find that the plaintiff has failed to produce any document in support of his contention that he had got the possession of the garage in suit. So, unless and until such fact is proved, it shall be presumed that the plaintiff has shown prima facie case to go for trial. THE plaintiff has shown urgency in passing the interim order and if the order of injunction, as prayed for, is not granted and if the defendant/opposite party hands over the possession to any third party, the plaintiff will certainly suffer irreparable loss. On the other hand, the defendant has nothing to loose, he would get rent so long as the possession of the property remained with the plaintiff. Accordingly, the balance of convenience in granting injunction is in favour of the plaintiff.