SWAPAN KUMAR JANA & ORS. Vs. ASOKKUMAR MALTY

JUDGEMENT

(1.) Heard the learned Senior Advocate for the petitioners Mr. Swadesh Bhusan Bhunia appearing with the learned Advocates Mr. Pinaki Ranjan Mitra and Mr. Asim Kumar Roy and the learned Senior Advocate for the opposite party Mr. Bhaskar Bhattacharyya appearing with the learned Advocate Mr. Fazle Rabi. Considered the materials on record. Let the affidavit -in -opposition to the supplementary affidavit affirmed on 4th January, 1996 be kept on record. This revision under Sec. 115 of the Code of Civil Procedure arises at the instance of the plaintiffs in Title Suit No. 214 of 1994, challenging the appellate court's judgment dated 10th November, 1995 passed in Misc. Appeal No. 23 of 1995 by the learned Assistant District Judge, Contai, Midnapore, whereby the learned Judge allowed the said misc. appeal against the respondents plaintiffs without any order as to costs and set aside the order of the learned Munsif being Order No. 16 dated 2nd September, 1995 passed in Title Suit No. 214 of 1994, and restrained the plaintiffs respondents from putting lock on the grill gate in dispute from 6 A.M. to 5 P.M. daily. The present petitioners filed a suit being Title Suit No. 214 of 1994 before the court of the learned Munsif, 1st Court, Contai, praying, inter alia, for a declaration that the defendant in that suit, who is the opposite party herein, has no right of easement over that pathway and also for permanent injunction. Similarly, the opposite party herein filed a Title Suit before the court of the said learned Munsif being Title Suit No. 252 of 1994, inter alia, praying for a declaration that he has a right of easement of pathway over the suit property and the declaration was prayed against the present petitioners and a permanent injunction was also prayed for. In Title Suit No. 252 of 1994 both the parties filed applications for injunction and an order of status quo was passed by the learned Munsif on the said applications of both parties made under Order 39, Rule 1 and 2 of the Code of Civil Procedure. The defendant in that suit, the opposite party herein, preferred two misc. appeals against the said orders being Misc. Appeal No. 1 of 1994 and Misc. Appeal No. 2 of 1994 before the court of the learned District Judge, but the appeals were disposed of by the learned Assistant District Judge, Contai, dismissing the said two appeals. Just now, Mr. Bhattacharyya submitted that if upon two applications one order is passed, then one appeal will be there. Similarly, in Title Suit No. 214 of 1994, where the present petitioners are the plaintiffs, the applications under Order 39, Rule 1 and 2, C.P.C. were filed by the plaintiffs and the defendants in that suit and on that applications the learned Munsif, 1st Court, by his order no. 16 dated 2nd September, 1995 directed maintenance of status quo in respect of the suit land till the disposal of the suit. With that order of status quo he disposed of the applications filed by the plaintiffs and the defendant in the suit. Against that the opposite party herein filed an appeal being Misc. Appeal No. 23 of 1995 and the same came up for hearing before the court of the learned Assistant District Judge, 1st Court, Contai. Thereafter, the respondents in that appeal, the petitioners herein, made an application before the appellate court under Order 39, Rule 4 C.P.C. for vacating that interim order and that application was pending. In the meantime, the respondents in that appeal moved this Court under Article 227 of the Constitution -of India and N.K. Mitra, J. by his order dated 22 -9 -95 passed the following order.

(2.) Let both the applications under Order 39 Rule 4 filed by the petitioner in the Misc. Appeal preferred by the Caveator Opposite Party and Misc. Appeal itself be heard out positively within 2 weeks after reopening in view of the special facts and circumstances of the case and the time limit, so fixed above is peremptory and mandatory.

(3.) So far as the impugned order is concerned, I am not inclined to interfere at this stage. I, however make it clear that if the appeal and the application as mentioned above are not heard out on the date as fixed by this Court by this order, the petitioner will be at liberty to make proper application before the lower appellate court and the lower appellate court will be free to pass appropriate order, notwithstanding any order passed by this Court.