SANAT KUMAR KUNDU Vs. DILIP KUNDU

JUDGEMENT

(1.) The instant appeal arises from an Order no. 31 dtd. 8/10/2020 passed by the learned Civil Judge, Senior Division, Jhargram in Title Suit no. 76 of 2018 by which an application under Sec. 151 of the Code of Civil Procedure seeking a mandatory injunction is postponed on the premise that the relief of mandatory injunction is in final form and, therefore, cannot be granted at the inter-locutory stage and directed the said application to be taken up at the time of final hearing of the said suit.

(2.) The plaintiff-appellant filed a suit for partition and separation of shares in respect of a joint property in which an application for temporary injunction was filed which was disposed of on 7/2/2019 on consent directing the status quo to be maintained till the disposal of the suit. An application for appointment of Advocate-Commissioner was taken out alleging that despite the order of sta tus quo subsisting in the said suit, the Respondent no. 1 is constructing two rooms on the courtyard. The resistance was offered in this regard but he did not pay any heed to the same. The Trial Court allowed the said application vide order no. 9 dtd. 22/7/2019 appointing Advocate-Commissioner to inspect and submit the report before the Court. Pursuant to the said order, the Advocate-Commissioner submitted the report wherein it is indicated that the work of construction of two rooms are in progress in the said suit premises. Despite such report having filed by the Commissioner, the said Respondent no. 1 continued with a construction work and another application for appointment of the Commissioner was filed in order to ascertain whether any further progress have been made with regard to the alleged construction which was eventually allowed on 25/6/2019. The subsequent report revealed that the alleged two rooms have been completed on the open courtyard which constrained the plaintiff-appellant to take out an application under Sec. 151 of the Code of Civil Procedure seeking the mandatory injunction for demolition of the said two rooms having undertaken in the teeth of the order of temporary injunction. The said application would further reveal that the construction at the joint property is such that there is an open courtyard in the middle of the property surrounded by the residential rooms. It is further disclosed by the plaintiff-appellant that several ceremonial functions and activities were performed in the open courtyard and, therefore, such construction is in blatant violation of the order of temporary injunction.

(3.) The Counsel for the plaintiff-appellant submits that two reports submitted by the same Advocate-Commissioner vividly disclosed the act of violation of the temporary injunction and anything which is done in the teeth of the order of temporary injunction is illegal and it is a duty of the Court to bring the sta tus quo ante prevalent at the time of passing the temporary injunction. In support of the aforesaid contention, the reliance is placed upon the Division Bench judgment of this Court rendered in case of Indian Cable Company Ltd. vs. Smt. Sumitra Chakrabort reported in AIR 1985 Cal 248 wherein it is held that there is no fetter on the part of the Court to pass the mandatory injunction at the inter-locutory stage provided the Court is satisfied that a wrong has been done in blatant violation of an order of temporary injunction. The Counsel for the appellant further submits that the Apex Court in Surjit Singh & Ors. vs. Harbans Singh & Ors. reported in (1995) 6 SCC 50 held that any act done in defiance of a restraint order is per se illegal and the Court should pass an appropriate order protecting the interest of the parties for ends of justice. The Counsel for the appellant further submits that if the Court cannot implement its order at the behest of an unscrupulous litigant it would defeat the very purpose of granting the temporary injunction and placed reliance upon a judgment of the Supreme Court in Dorab Cawasji Warden & Ors. vs. Coomi Sorab Warden & Ors. reported in AIR 1990 SC 867. Lastly, it is submitted that if anything is done in violation of an order of status-quo by altering the position existed on the said date, the Court is not powerless to pass a mandatory order and placed reliance upon a judgment of the Supreme Court in case of Satyabrata Biswas & ors. vs. Kalyan Kumar Kisku & Ors. reported in (1994) 2 SCC 266.