AHMED ALI MULLICK Vs. ABDUL ROB MULLICK

JUDGEMENT

(1.) -This revision is directed against the order dated 12.1.95 passed in Miscellaneous Appeal No. 122 of 1989 by the Assistant District Judge, Hooghly, whereby the order dated 14.8.89 passed in Title Suit No. 20 of 1988 by the court of Munsiff, Hooghly granting a mandatory injunction against the defendant-O.P. No. 1 was affirmed.

(2.) In a suit for declaration and injunction, the present petitioner, being a plaintiff there, succeeded in obtaining an order of temporary injunction dated 26.6.88 from the learned trial court in Title Suit No. 20 of 1988 restraining the defendant-O.Ps. from changing the nature and character of the suit property. The petitioner had asserted a right of passage over a piece of land adjacent to the houses of both the parties . The land-in-question was said to be situated on plot No. 1404/2022 (which has of course been disputed) by the defendant-O.Ps. While the order of temporary injunction was still in force, the plaintiff petitioner came up with an allegation that the order of injunction has been violated by constructing a pucca brick wall on the said passage so as to obstruct the petitioner's pathway for the ingress and egress in respect of his residential house. For the alleged violation of the order of injunction, there was already a proceeding pending under Order 39 Rule 2A of the CPC having been numbered as Miscellaneous Case No. 78 of 1988 of the trial court. The plaintiff-petitioner took an additional step also by making a prayer for mandatory injunction so as to remove the wall constructed after the order of injunction. The same was allowed by the trial court and the said order was affirmed by the appellate court. Be it also note that the parties had common ancestor and the suit property was subject to partition in a different proceeding still pending.

(3.) Both the courts below were of the view that an injunction in the nature of the mandatory form was essential by the reason that the defendant-O.Ps. had constructed a wall on the disputed passage in spite of an order of temporary injunction already in force. It is however, significant to note that proceeding under Order 39 Rule 2A of the CPC was still pending with regard to the alleged violation of injunction order and there is likely to be a decision taken one way or the other upon recording evidence adduced by both the parties. Therefore, unless the proceeding under Order 39 Rule 2A of the CPC is concluded, it may not be justified to uphold the view that the wall-in-question has been constructed only subsequent to the passing of an order of temporary injunction. The defendant-O.P. as it appears from the pleadings on the record, is very much assertive of the fact from the very beginning that there was already a wall existing over the disputed piece of land and also that the said wall did not situate on the plots (Plots No. 1404/2020) as asserted by the other side.