Disposed

Subhash @ Subash Deb Nath v. on Death of Bishnupada Saha His Legal Heirs - Archana Saha and 3 Ors.

Gauhati HC14 Feb 2020CRP/22/2020

Case brief

AI extract

What is this about?

This revision petition seeks a temporary injunction against respondents to restrain dispossession of suit land pending restoration of a dismissed title suit. The High Court granted a seven-day restraining order under Section 151 CPC, holding that injury to the suit property warranted intervention despite the suit dismissal, while directing expeditious restoration of the suit.

What did the court decide?

Respondents restrained from dispossessing petitioner for seven days during the pendency of restoration consideration. Petitioner directed to appear for restoration.

Subhash @ Subash Deb Nath Vs on Death of Bishnupada Saha… — Property and Title | Gauhati HC (2020)

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GAHC010033752020

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : CRP 22/2020

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1:SUBHASH @ SUBASH DEB NATH S/O. LT. NIBARAN DEBNATH, R/O. PRAGJYOTISH NAGAR, B.G. COLONY, MALIGAON, DIST. KAMRUP (M), GUWAHATI-12, ASSAM.

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VERSUS

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1:ON DEATH OF BISHNUPADA SAHA HIS LEGAL HEIRS - ARCHANA SAHA AND 3 ORS. LEGAL HEIRS

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1.1:ARCHANA SAHA W/O. LT. BISHNUPADA SAHA R/O. PEARLESS NAGAR SUDPUR FLAT NO.CC/05.204 P.O. PANIHATI P.S. KHORDAH DIST. 24 PARAGANA KOLKATA-14 WEST BENGAL.

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1.2:SANJOY SAHA S/O. LT. BISHNUPADA SAHA R/O. PEARLESS NAGAR SUDPUR FLAT NO.CC/05.204 P.O. PANIHATI P.S. KHORDAH DIST. 24 PARAGANA KOLKATA-14 WEST BENGAL.

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1.3:SUBRATA SAHA S/O. LT. BISHNUPADA SAHA R/O. PEARLESS NAGAR SUDPUR FLAT NO.CC/05.204 P.O. PANIHATI P.S. KHORDAH DIST. 24 PARAGANA KOLKATA-14 WEST BENGAL.

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1.4:PRADYUT KR. DEY CONSTITUTED ATTORNEY OF THE OPP. PARTY NOS. 1 TO 3 R/O. SATI JAYMATI NAGAR GOTA NAGAR B.G. COLONY P.S. JALUKBARI GUWAHATI-33 DIST. KAMRUP (M) ASSAM

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Advocate for the Petitioner : DR. P K GOSWAMI

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Advocate for the Respondent :

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BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

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Date : 14-02-2020

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JUDGMENT AND ORDER(ORAL)

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Heard Dr. PK Goswami, learned Counsel for the petitioner.

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Considering the nature of the order to be passed, we deem it appropriate that notices on the respondents may not be issued.

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The petitioner instituted Title Suit No.369 of 2010 in the Court of learned Munsiff No.2, Kamrup (M), at Guwahati claiming for right, title and interest over the suit land. The said suit was dismissed for non-prosecution by an order dated 16.11.2019. Although there was a counter claim, even the counter claimant had not come forward before the Court to pursue with his counter claim after dismissal of the suit for non-prosecution. Upon dismissal of the

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suit for non-prosecution, the defendants counter claimants are stated to have encroached upon the suit land. In the circumstance, the petition No.2965 was filed by the petitioner under Order 39 Rule 1 and 2 praying for an ad-interim temporary injunction restraining the defendants counter claimant from entering the suit land. The petition of the petitioner plaintiff under Order 39 Rule 1 and 2 was dismissed by the order dated 21.12.2019 on the ground that the restoration petition against the dismissal of the suit having still pending, no relief can be granted by passing an order of injunction.

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We have perused the provisions of Order 39 Rule 1 which provides that where in any suit it is proved by an affidavit or otherwise, that the defendant threatened to dispossess the plaintiff or otherwise caused injury to the plaintiff in respect of the suit property, the court may by order grant a temporary injunction to restrain such acts. A bare reading of the provision of Order 39 Rule 1 shows that in order to invoke such power for grant of temporary injunction, the pre-requisite would be the pendency of the suit as because such order can be passed only where in any suit it is provided by an affidavit or otherwise. Consequent to our aforesaid reading of the provision of order 39 Rule 1, we find no infirmity in the order dated 21.12.2019 of the learned Court of Munsiff No.2, Kamrup in Petition No.2965 which was filed under Order 39 Rule 1 and 2.

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Dr. PK Goswami, learned Counsel relies upon the pronouncement of a judgment of this Court in the case of Reboti Ray –vs- Sashikanta Budhia @ Agarwal reported in 2006 (2) GLT 311, wherein in paragraph- 23, it had been held that the inherent jurisdiction of a court to issue temporary injunction which are not covered by Order 39 still remains under Section 94 of the CPC inasmuch, as Section 94 CPC does not completely prohibit the grant of temporary injunction in the circumstance which are otherwise not covered by order 39 and the rules framed thereunder. In the instant case, although the petitioner made their application under Order 39 Rule 1 and 2, in a circumstance where the dismissed suit was not restored, there was no prohibition under the law for the Court to exercise its power for grant of temporary injunction under Section 94(c) of the CPC.

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We are faced with a situation where the suit of the petitioner was dismissed on 16.11.2019 and a petition for restoration is pending wherein notices have been issued but have not yet been served and therefore the said petition is pending consideration. In the

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meantime, it is stated that the defendants taking advantage of the dismissal of the suit is attempting to dispossess the plaintiff from the suit land. Although a subsequent attempt to dispossess may give rise to a new cause of action, we leave it to the petitioner to address the said issue and take remedial measure in an appropriate manner, as may be provided under the law. But for the case at hand, we are of the view that if the defendants taking advantage of the dismissal of the suit and the non-consideration of the application for restoration because of the procedural requirement, is making attempts to dispossess the plaintiff, we are of the view that it would be a fit case for exercising the jurisdiction under Section 151 CPC by restraining the defendants respondents from dispossessing the plaintiff petitioner from the suit land at least till such period by which the learned Munsiff can give a due consideration to the restoration petition of the petitioner as well as any other application that they may file for protecting their interim rights. We deem it appropriate that such order is necessary for the ends of justice and to prevent abuse of the process of the Court.

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Accordingly, the respondent defendants are restrained from dispossessing the plaintiff from the suit land. As this order is passed ex-parte without hearing the respondents defendants, we require the learned Munsiff No.2 to take up the application for restoration of the Title Suit No.369 of 2010 as expeditiously as possible and upon its restoration, if any application for interim injunction is filed and pressed by the petitioners, the same also be given a consideration. The petitioner should not be allowed to cause any delay in the restoration petition being taken up and for the purpose require them to serve the respondents defendants through Dasti method under Order V Rule 9 A CPC. Upon appropriate order being passed on the restoration petition, the petitioner be allowed another seven days’ time to file appropriate application for injunction if they intend to so prefer. This order of restraining the respondents defendants shall continue upto a period of seven days from the date of which the restoration is finally taken up by the learned Munsiff No.2.

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The petitioner to appear before the learned Munsiff No.2, Kamrup (M) at Guwahati on 17.02.2020.

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The revision petition stands disposed of.

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JUDGE

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Comparing Assistant

Subhash @ Subash Deb Nath v. on Death of Bishnupada Saha His Legal Heirs - Archana Saha and 3 Ors.

Case brief

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Subhash @ Subash Deb Nath v. on Death of Bishnupada Saha His Legal Heirs - Archana Saha and 3 Ors.

Case brief

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What did the court decide?

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