KALIDAS MUKHERJEE Vs. JARI SINGH

JUDGEMENT

(1.) The petitioner plaintiff has instituted a suit against the opposite party in the First Court of Munsif at Serampore, inter alia, for certain declaration and consequential reliefs. The said suit is pending. The plaintiff's application for temporary injunction to restrain the defendant-opposite party from interfering with the plaintiffs alleged possession of the suit property was rejected by the (earned Munsif, First Court, Serampore. The plaintiff being aggrieved by the sard order of the learned Munsif refusing temporary injunction preferred an appeal before the lower appellate court. The learned Subordinate Judge, First Court, Hoogbly, dismissed the said appeal and affirmed the order of the learned Munsif refusing injunction. The only reason given by the learned Subordinate Judge was that in the instant case section 21(3) of the West Bengal Land Reforms Act was attracted and, therefore, the question whether the defendant - opposite-party a bargadar or not should be referred to the Officers and/or authorities under section 18 of the West Bengal Land' Reforms Act. According to the learned Subordinate Judge even a prima. facie finding by the civil court in the temporary injunction matter might prejudice the mind of the authority who might have to decide the said question under the law. The petitioner being aggrieved by the said order of the appellate court has obtained the present Rule.

(2.) In my view, the learned Subordinate Judge has failed to exercise a jurisdiction vested in him by law by not disposing of the Miscellaneous appeal in question in accordance with Jaw. At the date the appeal was disposed of no reference under section 21(3) had been yet made by the Trial Court. Secondly, have pointed out in my judgment in Chapalabala Adhikary Vs. Monoranjan Das & ors, reported in 1975 (2) C.L.J 447 at page 452 that the court has been now debarred under section 21(3) from deciding the question whether a person is a bargadar or not. But the said ouster of jurisdiction is partial and the court is still competent to decide all other questions involved in a suit. Secondly, the lower appellate court misdirected itself with regard to the scope of an appeal arising from an order refusing temporary injunction. At this stage no determination of any of issues involved in this suit is to be made. The court in hearing an application for temporary injunction and the appeal arising therefrom is to consider only the prima facie cases of the parties, balance of convenience & inconvenience, question of irreparable injury etc Since at this stage, the court will riot make adjudication of the rights of the parties. I do not agree that disposal of the temporary injunction matter would prejudice proceedings, if any. under section 21(3) of the West Bengal Land Reforms Act. In fact, Sec. 21(3) read with section 18(2) does not provide for passing of interlocutory orders. Therefore, the Civil Court is at liberty to hear the application for interim orders notwithstanding that a reference under section 21 (3) may be contemplated. It may be also pointed out that in case a reference under section 21(3) is made and the authorities under chapter III determine the said question and returns the same to the Civil Court may at its discretion modify and/or pass further orders in respect of the temporary injunction matter. But law does not contemplate that merely because there might be a reference under section 21 (3), the Civil Court shall not have any jurisdiction even to make an order of temporary injunction even if the conditions for passing such an interlocutory order be fulfilled. But may at once add that in the instant case have not considered whether or not the application for temporary injunction applied for by the plaintiff should be granted or not. The lower appellate court will address itself to the said question while again hearing the appeal in question. I also make it clear that am not deciding at this stage whether or not a reference under section 21(3) of the West Bengal Land Reforms Act should be made in the instant case. The said question is also left open. When the appeal has not been heard on merits the matter should be remitted to the lower appellate court for re-hearing the same in accordance with law. The observations made in the judgment of the lower appellate court before remand will not be binding on either of the parties at the re-hearing of the same.

(3.) I, accordingly, make this Rule absolute in part, set aside the order dated 23rd Aug. 1977 passed in Misc. Appeal No. 165 of 1976. The lower appellate court is directed to again hear and dispose of the said appeal in accordance with law.