Quashed

Binita Das and 3 Ors. v. Bhanuprabha Das and 2 Ors.

Gauhati HC10 May 2022CRP(IO)/20/2022

Case brief

AI extract

What is this about?

The Gauhati High Court exercised its supervisory jurisdiction under Article 227 to quash an appellate stay order passed ex-parte without recording statutory satisfaction regarding substantial loss and security mandated by Order XLI Rule 5(3) CPC. The Court directed the First Appellate Court to dispose of the pending appeal within 30 days.

What did the court decide?

Impugned stay order of 23.12.2021 quashed; First Appellate Court directed to dispose appeal within 30 days.

Binita Das and 3 Ors. Vs Bhanuprabha Das and 2 Ors. — Property and Title | Gauhati HC (2022)

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GAHC010011952022

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

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Case No. : CRP(IO)/20/2022

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BINITA DAS AND 3 ORS

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R/O- C-164, RAILWAY COLONY, WEST MALIGAON, NEAR MASJID, MALIGAON RAILWAY HEAD QUARTERS, MAIGAON, GUWAHATI-781011 UNDER P.S. AND MOUZA- JALUKBARI, DIST.- KAMRUP(M), ASSAM

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2: SMTI. MALABIKA DAS R/O- BISHNU PATH RUKMINIGAON GUWAHATI-781022 ASSAM 3: DHIRAJ KUMAR DAS R/O- C-164 RAILWAY COLONY WEST MALIGAON NEAR MASJID MALIGAON RAILWAY HEAD QUARTERS MAIGAON GUWAHATI-781011 UNDER P.S. AND MOUZA- JALUKBARI DIST.- KAMRUP(M) ASSAM 4: DEBAJIT DAS R/O- C-164 RAILWAY COLONY WEST MALIGAON NEAR MASJID MALIGAON RAILWAY HEAD QUARTERS MAIGAON GUWAHATI-781011 UNDER P.S. AND MOUZA- JALUKBARI DIST.- KAMRUP(M) ASSA VERSUS

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BHANUPRABHA DAS AND 2 ORS W/O- LATE PARESH CH. DAS, R/O- BATTA BUILDING, MALIGAON CHARIALI, GUWAHATI-781011 UNDER P.S. AND MOUZA- JALUKBARI, DIST.- KAMRUP(M), ASSAM

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2:SMTI. GITANJALI DAS D/O- LATE PARESH CH. DAS R/O- BATTA BUILDING MALIGAON CHARIALI GUWAHATI-781011 UNDER P.S. AND MOUZA- JALUKBARI DIST.- KAMRUP(M) ASSAM 3:PRANAB JYOTI DAS S/O- LATE PARESH CH. DAS R/O- BATTA BUILDING MALIGAON CHARIALI GUWAHATI-781011 UNDER P.S. AND MOUZA- JALUKBARI DIST.- KAMRUP(M) ASSA

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Advocate for the Petitioner : MR. M DUTTA

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Advocate for the Respondent : MR. K KALITA

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BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH

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ORDER

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Date : 10-05-2022

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Heard Mr. M Dutta, learned counsel for the petitioner and Mr. PC Dey, learned counsel appearing for all the respondents.

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The instant application under Article 227 of the Constitution of India is against the order dated 23.12.2021 passed in Misc Appeal No.03/2021 by the Court of the learned Civil Judge, Kamrup, Amingaon, whereby the order dated 25.11.2021 passed by the learned Munsiff, Amingaon in Misc(J) Case No.121/2021 arising out of Title

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Suit No.113/2021 was stayed till the disposal of the appeal.

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For the purpose of adjudication of the instant application, it is relevant to take note of that the petitioners before this Court have filed a suit being Title Suit No.113/2021 whereby, the petitioners sought for declaration of their right title and interest over the suit land being the joint owner & possessor along with the defendants and for permanent injunction restraining the defendants, their men, agents, workmen etc from encroaching upon the schedule land changing and altering the nature and character of the suit land, carrying out any construction over the suit land/leasing out the suit land/creating any encumbrance over the suit land.

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Along with the said suit which was registered and numbered as Title Suit No.113/2021, the petitioner also filed an application under Order XXXIX Rule 1 & 2 read with Section 151 which was registered and numbered as Misc (J) Case No.121/2021. In the said application, the petitioners herein sought for an ad interim temporary injunction restraining the opposite party/defendants their men, agents, workmen etc from encroaching upon the schedule land, changing and altering the nature and character of the suit land, carrying out any construction over the suit land/leasing out the suit land/creating any encumbrance over the suit land till the disposal of the suit.

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At this stage it may be relevant herein to mention that the respondents herein who are the defendants in the said suit had filed their written statement to the plaint as well as written objection to the injunction application.

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The Court of the Munsiff, Kamrup Amingaon vide an order dated 25.11.2021 after hearing both the parties and taking into account the objection so filed directed the opposite party/defendants (respondents herein) and their men and agents not to change the nature of the Schedule property till the disposal of the suit or until further orders.

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Against the said order dated 25.11.2021, an appeal was preferred before the Court of the learned Civil Judge, Kamrup, Amingaon by the respondents herein as appellants which was registered and numbered as Misc Appeal No.3/2021. Along with the said appeal, an application was filed for stay of the operation of the order dated 25.11.2021 passed in Misc (J) Case No.121/2021 arising in Title Suit No.113/2021.

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The First Appellate Court i.e. the Court of the Civil Judge, Kamrup Amingaon vide an order dated 23.12.2021 admitted the appeal and stayed the order dated 25.12.2021 passed in Misc (J) Case No.121/2021 arising out of Title Suit No.113/2021 till disposal of the appeal.

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From a perusal of the said order dated 23.12.2021 it appears that the said order was passed ex-parte. It is against the said order dated 23.12.2021 passed in Misc Appeal No.3/2021 that the petitioners are before this Court.

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Mr. P.C Dey, learned counsel for the respondents submits that the instant revision application under Article 227 of the Constitution of India is not maintainable as the appeal is still pending and in the said

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appeal the petitioners herein have also filed objection.

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After hearing the learned counsel for the parties and on perusal of the order dated 23.12.2021, this Court is of the opinion that the impugned order was passed without following mandate under Order XLI Rule 5(3) which stipulates the conditions under which an order can be stayed by the Appellate Court. A perusal of Order XLI Rule 5 stipulates that merely because of filing an appeal the order impugned cannot be stayed. A further perusal of Order XLI Rule 5(3) stipulates that no order for stay shall be made under Sub-Rule (1) or Sub-Rule (2) of Rule 5 unless the Court making it is satisfied that substantial loss may result to the party applying for stay of the execution unless the order is made; that the application has been made without unreasonable delay and the security has been given by the applicant for the due performance of such order as may ultimately be binding upon him. A perusal of the impugned order does not show that any such reasons have been recorded in terms with Sub-Rule (3) of Order XLI Rule 5 of the Code and consequently this Court is of the opinion that the order so passed is liable to be interfered with and accordingly, this Court sets aside and quashes the order dated 23.12.2021.

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However, taking into consideration that the appeal has already been filed and the appeal is pending before the First Appellate Court, this Court therefore directs the First Appellate Court to dispose of the appeal within a period of 30 days from the date of the instant order. The learned counsel for the parties have submitted that the appeal is fixed on 02.07.2022 and the Presiding Officer of the First Appellate

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Court is on leave. As the appeal arises out of an injunction order and it is well settled that such injunction proceedings should be disposed of as early as possible, this Court directs the learned Civil Judge, Kamrup (M) which is the First Appellate Court to dispose of the appeal within the time period as mentioned herein above and if the Presiding Officer of the said court is on leave, then this Court further directs the learned District Judge, Kamrup Amingaon to exercise his powers under the provisions of The Bengal Agra and Assam Civil Courts Act, 1887 to either take up the said appeal for disposal itself or to send the appeal for disposal before any other Court competent to adjudicate the said appeal. The parties are directed to appear before the First Appellate Court and in absence of the First Appellate Court, before the learned District Judge for due compliance to the instant order on 13.05.2022.

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The observations so made herein above are limited to the order impugned in the instant proceeding and the First Appellate Court shall not be influenced by the observations made herein above while disposing the Appeal.

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The instant petition stands disposed of. No costs.

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JUDGE

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Comparing Assistant

Binita Das and 3 Ors. v. Bhanuprabha Das and 2 Ors.

Case brief

What is this about?

What did the court decide?

Binita Das and 3 Ors. v. Bhanuprabha Das and 2 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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