Shri v.Ravi Vs Miss K.Neha — Calcutta HC (2024) — LawSathi Research

Shri v.Ravi Vs Miss K.Neha — Calcutta HC (2024) — LawSathi Research

What the court decided

AI extract

Outcome

No relief to the petitioner/revisionist: the civil order (revisional application) was dismissed as not maintainable. The Court indicated that the revisionist may prefer an appeal against the order dated 30.10.2024, and directed that any such appeal preferred by the defendant in the suit be considered by the District Judge uninfluenced by the observations made in the order dated 07.11.2024.

Issue for consideration

Whether the civil order (revisional application) is maintainable against the ad interim/interim order dated 30.10.2024, given that such an order falls within sub-rule (r) of Order 43 Rule 1 CPC (deemed to be under Order 39 Rules 1 & 2 CPC in aid of the main prayer for mandatory injunction) and is therefore appealable, and an appealable order cannot be challenged in revision.

Court's answer

The interim order passed by the Court below, granting ad interim relief in aid of the main prayer for mandatory injunction, comes within the meaning of sub-rule (r) of Order 43 Rule 1 of the Code of Civil Procedure.

Ratio / Principle

Such interim order must be deemed to be one under Order 39 Rule 1 & 2 CPC, granted in aid of the main prayers for mandatory injunction.

Key takeaways

The order challenged in the revisional application is appealable, and an order which is appealable cannot be challenged in revision.ratio¶20
The revisional application is not maintainable, particularly in view of paragraph 25 of Best Sellers Retail (India) Private Limited, (2012) 6 SCC 792.ratio¶20
The revisionist may prefer an appeal against the impugned order dated 30.10.2024; if such appeal is preferred by the defendant in the suit, the District Judge shall consider it uninfluenced by the observations made in the order dated 07.11.2024.

Detailed headnote1 paragraphs

Civil revision — maintainability — interim order dated 30.10.2024 in Other Suit No.82 of 2024 granting ad interim relief in aid of the main prayer for mandatory injunction, directing the defendant to permit the plaintiff to enter the shop room — such an order falls within sub-rule (r) of Order 43 Rule 1 CPC and must be deemed one under Order 39 Rules 1 & 2 CPC granted in aid of the main prayers — being appealable, it cannot be challenged in revision — reliance placed on Best Sellers Retail (India) Pvt. Ltd. v. Aditya Birla Nuvo Ltd., (2012) 6 SCC 792, para 25; Shiv Shakti Coop. Housing Society v. Swaraj Developments, (2003) 6 SCC 659, considered but not followed — revisional application dismissed; revisionist at liberty to appeal, and the District Judge to decide such appeal uninfluenced by the observations in the order dated 07.11.2024.

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ]

CO/46/2024

Shri V. Ravi

Vs.

Ms.K.Neha

Mr. KMB Jaypal … for the petitioner

Ms. Anjili Nag … for the respondent

November 12, 2024 [SR] Item No.2

The matter has been placed in the list at the instance of the opposite party.

On 07.11.2024, this revisional application was moved against the order No.3 dated 30.10.2024 passed in Other Suit No.82 of 2024.

By the impugned order, the Court below directed ad interim stage in aid of the main prayer for mandatory injunction and an interim order directing the defendant in the suit to permit the plaintiff to enter into the shop room in question.

The prayers in the civil suit are in the nature of permanent and mandatory injunction. The subject matter is of the shop room, which was in the possession of the defendant in the suit.

Ms. Anjili Nag, learned counsel for the plaintiff/opposite party has urged a preliminary point that the revisional application itself is not maintainable since the order dated

30.10.2024 directing the revisionist to allow the opposite party to enter into the premises is an appealable order.

Mr. Jayapal, learned counsel for the revisionist has relied upon two judgments to indicate that the order in question can also be challenged in revision. He relies on paragraphs 31 and 32 of the decision of the Supreme Court in Shiv Shakti Cooperative Housing Society, Nagpur vs. Swaraj Developments and others reported in (2003) 6 SCC 659. He has also relied upon in para 25 of the decision in the case of Best Sellers Retail (India) Private Limited vs. Aditya Birla

Nuvo Limited and Others reported in (2012) 6 SCC 792.

Having carefully considered the two judgments, this Court is of the clear view that the interim order passed by the Court below, comes within the meaning of subrule (r) of Order 43 Rule 1 of the Code of Civil Procedure.

Such order must be deemed under Order 39 Rule 1 & 2 in aid of the main prayers for mandatory injunction. 9. Therefore, the order challenged in this revisional application is an appealable. An order which is appealable cannot be challenged in the revision. 10. The revisionist may therefore prefer an appeal against the said order. The revisional application is not maintainable particularly considering para 25 of the Best Sellers Retail (India) Private Limited (supra).

The revisional application stands dismissed as indicated above

If appeal is preferred by the defendant in the suit, the same shall be considered by the District Judge uninfluenced by the observations made in the order dated 07.11.2024.

Urgent photostat certified copy of this order, if applied for, be given to the parties upon compliance of all formalities.

( Rajasekhar Mantha, J. )