Dismissed

Mina Mallick v. Partha De and Anr.

Calcutta HC6 Aug 2024CO/2313/2023

Case brief

AI extract

What is this about?

The Calcutta High Court dismissed a civil revision petition filed under Article 226 challenging the dismissal of an application for investigation of suit property under CPC. The court held the prayer was beyond the scope of the appeal and no encroachment was alleged in the plaint.

What did the court decide?

The civil revision petition C.O. 2313 of 2023 was dismissed without any order as to costs.

Mina Mallick Vs Partha De and Anr. — Property and Title | Calcutta HC (2024)

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06.08.2024 (D/L-28) Ct.-19 (Susanta)

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IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION

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C.O. 2313 of 2023

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Smt. Mina Mallick -Vs-

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Sri Partha De & Anr.

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Mr. Aniruddha Chatterjee, Mr. Srijib Chakraborty, Mr. Abir Lal Chakravoreti,

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… For the Petitioner.

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The plaintiff in a suit for declaration of title and other consequential reliefs is the petitioner of the instant application under Article 227 of the Constitution of India.

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The said suit being Title Suit no. 174 of 2014 is pending before the 2^nd Court of learned Civil Judge (Junior Division) at Alipore, District: 24 Parganas (South).

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The petitioner alleged that the defendant no.1, in violation of the order of injunction passed in the said suit has encroached upon the suit property and has constructed a multi storied building thereon.

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The petitioner with the said allegation had filed an application under Order XXXIX Rules 1 & 2 of the Code of Civil Procedure, praying an order of mandatory injunction that the defendant no.1 be directed to hand over the possession of the suit property and to demolish the said multi storied building.

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The learned Trial Judge by the order no. 119 dated March 16, 2020 had dismissed the said application.

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The petitioner aggrieved by said order has preferred the Misc. Appeal No. 135 of 2020 pending before the Additional District Judge, Fastrack 1^st court at Alipore District: South 24 parganas.

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The petitioner in the said appeal had filed an application under Order XXVI Rule 9 of the Code for

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investigation of the suit property inter alia to note and draw the sketch map of it.

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Mr. Chatterjee, learned counsel for the petitioner submits that the investigation as prayed for is necessary for the effective adjudication of the said Misc. Appeal.

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Heard Mr. Chatterjee, perused the materials-on-record.

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The prayer for investigation of the suit property is beyond the scope of the said Misc. Appeal, besides, there is/are no averment(s) in the plaint regarding encroachment of the suit property, as such, the learned Trial Judge is absolutely justified in dismissing the application under Order XXVI Rule 9 of the Code.

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Mr. Chatterjee submits that the application for amendment of the plaint to bring the allegation of such encroachment on record has already been taken out by the petitioner.

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Be that as it may, C.O 2313 of 2023, for the reasons discussed above is dismissed without any order as to costs.

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It is however made clear that this order will not prevent the petitioner to apply for such investigation, if so advised, at the appropriate stage of the suit.

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Parties to act on the server copy of this order duly downloaded from the official website of this Court.

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Urgent Photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.

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(Biswajit Basu, J.)

Mina Mallick v. Partha De and Anr.

Case brief

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Mina Mallick v. Partha De and Anr.

Case brief

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