BULUBALA Vs. AVIMUNYA BARIK

JUDGEMENT

(1.) THIS application under Article 227 of the Constitution of India is directed against Order dated 28th March, 2012 made by the Additional District Judge, Fast Track Court No. 4, Paschim Medinipore in Misc. Appeal No. 60 of 2010 whereby an appeal from grant of ad interim order of injunction was allowed on the finding that the ad interim order passed by the learned Trial Court was not sustainable. Mr. Susil Kumar Sikdar, learned Advocate appearing on behalf of the petitioner relies upon the decision reported in, 2000 (2) CHN 856 [Jitesh Pandey Vs. Urmilata Sinha & Ors.] to submit that the impugned order on the face of it showed consideration of material that were not before the learned Trial Judge when the order was made by it. Hence, the learned Appellate Court below misdirected itself in making the impugned order and the same should be set aside. Mr. Debabrata Acharya, learned Advocate appearing on behalf of the opposite party/defendant relies upon the decision reported in : A.I.R. 1995 S.C. 2372 [M/s. Gujarat Bottling Company Limited & Ors. Vs. Coca Cola Company & Ors.] to submit that interlocutory injunction was purely equitable relief and the conduct of the person seeking such relief should be fair and honest. He submits the learned Appellate Court below found that the opposite party/defendant was in possession of the land over which the petitioner/plaintiff had obtained ad interim injunction by suppressing the fact. Hence, according to him, the impugned order should not be interfered with.

(2.) IN Jitesh Pandey this Court held that a person aggrieved by an ad interim order of temporary injunction had three -fold remedies. He could either show cause by filing written objection to the injunction application or come forward with an application under Order XXXIX Rule 4 of the Code of Civil Procedure or prefer an appeal from the ad interim order of injunction, all for the purpose of having ad interim order vacated. It was held in that decision if such person chose to prefer appeal before filing written objection or taking out an application under Order XXXIX Rule 4 of the Code, he must be prepared to accept the statements made in the application for temporary injunction to be true and persuade the Appellate Court from such allegations why the ad interim order should be vacated.

(3.) THIS is a case where the ratio laid down in Jitesh Pandey squarely applies. In the circumstances, this Court sets aside the impugned order to restore the ad interim order passed by the learned Trial Court. The opposite party/defendant is at liberty to adopt either or both the remedies left open to him.