SK ABU BAKKAR Vs. PARIMAL PROVA SARKAR

JUDGEMENT

(1.) The revisional application is directed against the orders of the courts below dismissing an application under Order 39, Rule 2(3) of the Code of Civil Procedure on the ground of want of jurisdiction. The petitioners filed a title suit, being Title Suit No. 905 of 1955 of the First Court of the Munsif, Alipore, for declaration of their title to certain land and for recovery of possession therein against opposite party No. 1 Sm. Parimal Prova Aich Sarkar and one Bejoy Krishna Aich Sarkar. In the course of the suit an injunction was obtained by the petitioners restraining the defendants from making any pucca or permanent construction on the encroached lands, that is the suit lands alleged to be encroached, and also upon the admitted lands of the tenancy as shown in the plain annexed to the plaint. Sm. Parimal Prova Aich Sarkar, plaintiff in Title suit No. 89 of 1956 in the Third Court of the Subordinate Judge, Alipore, made a prayer for transfer of Title Suit No. 905 of 1,955 of the First Munsif's Court, Alipore to the Third Court of the Subordinate Judge, Alipore for analogous trial as the subject-matter of the two suits was to a certain extent identical. The District Judge by an order dated 9th November, 1957, allowed the prayer for transfer, and transferred Title Suit No. 905 of 1955 of the First Court of Munsif, Alipore to the Third Court of the Subordinate Judge, Alipore for analogous trial along with Title Suit No. 89 of 1956 of that Court. On 29th October, 1957, the petitioners tiled an application before the First Court of Munsif, Alipore under Order 39, Rule 2(3) of the Code of Civil Procedure, alleging that taking advantage of an order passed on 21st September, 1957 by the learned District Judge staying further proceedings in Title Suit No. 905 of 1955, the defendants were making permanent constructions on the northwestern portion of c. s. plot 127 which was a part of the encroached land and subjectmatter of the suit. When Title Suit No. 905 of 1955 of the First Munsif's Court, Alipore was transferred to the Third Court of the Subordinate Judge, Alipore, this application under Order 39, Rule 2(3) C.P.C. was also taken up by the Subordinate Judge and he dismissed the application by an order dated 12th April, 1958, on the ground that as the injunction order had been passed by the First Court of Munsif, Alipore, the Subordinate Judge was not competent to deal with the application for punishment for any alleged breach of the injunction; because the sub-rule provides that in case of disobedience or of breach of any such terms, the Court granting the injunction may pass the appropriate penal order. An appeal from that order was heard by an Additional District Judge, Alipore; but the learned Additional District Judge agreed with the learned Subordinate Judge in holding that the Subordinate Judge had no jurisdiction to deal with the application under Order 39 Rule 2(3) C.P.C., the injunction having been passed by the First Court of Munsif.

(2.) Mr. Ghosh Choudhury appearing for the petitioners has urged that the courts below erred in holding that the Subordinate Judge had no jurisdiction. Mr. Ghosh Choudhury has urged that the Title Suit having been transferred to the Third Court of Subordinate Judge, Alipore, every matter relating to the suit could be dealt with by the transferee Court in view of the provisions of Section 150 C.P.C. In support of his contention he has relied on a decision of the Madras High Court, viz. Mouna Guruswami Naicker v. Sheik Muhammadhu Rowther, ILR 46 Mad 83: (AIR 1923 Mad 92).

(3.) Before dealing with the point, I should point out that the application under Order 39, Rule 2(3) C.P.C. for taking penal steps against the defendants was filed not against the two principal defendants who were parties to the suit, but against defendant No. 1 Sm. Parimal Prova Aich Sarkar and one Benoy Krishna Aich Sarkar, who is a brother of defendant No. 2 Bejoy Krishna Aich Sarkar. Since opposite party No. 2 Benoy Krishna Aich Sarkar was not a party in Title Suit No. 905 of 1955, it is clear that no action under Order 39, Rule 2{3) C.P.C. could be taken against him. Therefore, as against opposite party No. 2 the proceeding was in any case bound to be infructuous.