Raj Kumar Boro Vs Deepika Dutta and Anr.

As this application is filed both under Article 227 of the Constitution of India and Section 115 of the CPC, on the prayer made by the learned counsel for the petitioner, the provision of challenge under Article 227 of the Constitution of India is struck off. Accordingly, this revision is considered only under Section 115 of the CPC.

¶21

By this revision, the petitioner has assailed the order dated 07.10.2023, passed by the learned Additional District Judge No. 1, Kamrup (Metro), Guwahati, in Misc. (J) Case No. 49/2023, arising out of Misc. Appeal No. 10/2023. By the said order, the application filed by the respondents under Order XXXIX Rules 1 and 2 of the CPC was allowed, thereby temporarily restraining the petitioner from entering into the suit land till the disposal of Title Suit No. 208/2023.

¶22

The respondents-plaintiffs had filed a suit for declaration and consequential reliefs, for seeking part performance of an oral agreement for sale dated 10.05.2003 entered into by the appellant with Late Prasanta Kumar Dutta, the predecessor-in-interest of the respondents in respect of land described in Schedule A of the plaint, projecting that the said agreement is valid and enforceable.

¶23

The respondents-plaintiffs have also sought a decree of specific

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¶25

performance of the contract for executing a sale deed in favor of the respondents-plaintiffs; a decree of confirmation that they are in valid and legal possession of the Schedule-A land; and for permanent injunction against the appellant, his men, agents, etc., not to disturb the peaceful possession and dayto-day activities of the respondents-plaintiffs in respect of Schedule-A property.

¶26

The learned Civil Judge (Senior Division) No. 2, Kamrup (Metro), Guwahati, on an application filed under Order XXXIX Rules 1 and 2 of the CPC seeking ad interim injunction, issued notice vide order dated 10.04.2023. Aggrieved by the issuance of only a notice without any order of ad interim injunction, the respondents-plaintiffs filed an appeal under Order XLIII Rule 1(r) of the CPC, which was registered as Misc. Appeal No. 10/2023. Along with the said memo of appeal, the respondents-plaintiffs had also filed a separate application under Order XXXIX Rules 1 and 2 of the CPC for an ad interim injunction.

¶27

The learned Additional District Judge No. 1, Kamrup (Metro), Guwahati, by its order dated 07.10.2023, allowed the appeal and for reasons assigned in the said order, examined the three golden principles for the grant of ad interim injunction and arrived at the conclusion that if an injunction was not granted, the respondents-plaintiffs would suffer irreparable loss and injury and accordingly, allowed the appeal on contest without cost be setting aside the order dated 10.04.2023 passed by the learned Civil Judge (Senior Division) No. 2, Kamrup (Metro), Guwahati in Misc. (J) Case No. 361/2023. By a separate order dated 07.10.2023, in Misc. (J) Case No. 49/2023, the learned First Appellate Court was pleased to pass an ad interim injunction under Order XXXIX Rules 1 and 2 of the CPC, restraining the appellant-defendant from entering into the suit land till disposal of Title Suit No. 208/2023.

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¶29

There is no dispute at the Bar that the proceedings of Misc. (J) Case No. 361/2023 that was pending before the learned Trial Court was still pending and was not disposed of. The learned counsel for the petitioner has submitted that the said proceeding is still pending for disposal before the Court of learned Civil Judge (Senior Division) No. 2, Kamrup (Metro), Guwahati and no opportunity was granted to the petitioner for filing objection to the said injunction application, because in the meantime, the petitioner, on receipt of notice in connection with Misc. Appeal No. 10/2023 participated in the said appellate proceedings and no opportunity could be availed for filing any objection to the injunction application being Misc. (J) Case No. 361/2023, which was pending before the learned Trial Court.

¶30

While the learned counsel for both sides put forth their submissions and projected that their respective parties are in possession, but in the course of submissions, the learned counsel for the respondents has submitted that during the pendency of said Misc. Appeal No. 10/2023, the petitionerdefendants had dispossessed the respondents-plaintiffs from the suit land.

¶31

In the considered opinion of the Court, as the learned counsel for the for the respondents-plaintiffs admits that the respondents-plaintiffs are not in possession of the suit land and it is alleged that they have been allegedly ousted by the petitioner-defendant illegally during the pendency of Misc. Appeal No. 10/2023, the impugned order restraining the petitioner-defendant from entering into the suit land being passed on the premises that the respondents-plaintiffs were in possession, is not sustainable. Moreover, there is another reason for interfering with the impugned order. The learned First Appellate Court, without allowing the petitioner-defendant an opportunity to contest the proceedings of Misc. (J) Case No. 361/2023, by granting a temporary injunction till the disposal

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¶33

of T.S. No. 208/2023, practically non-suited the petitioner-defendant from the said proceedings of Misc. (J) Case No. 361/2023. Therefore, in other words, in Misc. (J) Case No. 361/2023, the petitioners-defendants was never allowed to bring their stand on record. Therefore, the order of injunction was passed without any opportunity to the petitioners-defendants to rebut the allegations or the stand taken by the respondents-plaintiffs in Misc. (J) Case No. 361/2023, which vitiates the impugned appellate order because the petitioners have been non-suited in Misc. (J) Case No. 361/2023.

¶34

Therefore, the appellate order dated 07.10.2023, passed by the learned Additional District Judge No. 1, Kamrup (Metro), Guwahati, in Misc. (J) Case No. 49/2023, arising out of Misc. Appeal No. 10/2023, is not found sustainable and hereby interfered with and set aside.

¶35

The matter arising out of Misc. (J) Case No. 361/2023, pending before the Court of learned Civil Judge (Senior Division) No. 2, Kamrup (Metro), Guwahati shall remain on the board of the said learned Court, which has to be adjudicated and brought to its logical conclusion.

¶36

The revision petition is allowed to the extent as indicated above.

¶37

The learned Civil Judge (Senior Division) No. 2, Kamrup (Metro), Guwahati is requested to expeditiously hear and dispose of the proceedings of Misc. (J) Case No. 361/2023 as early as possible, by curtailing unnecessary prayers for adjournments made by either side.

¶38

As it is submitted before this Court that the next date of proceedings before the learned Civil Judge (Senior Division) No. 2, Kamrup (Metro), Guwahati is fixed on 25^th of June, 2026, it would be appropriate to request the said learned Court to prepone the proceedings to an early date in presence of

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both sides.

¶41

This Court is inclined to direct both sides, who are duly represented by their learned counsel, to appear before the learned Civil Judge (Senior Division) No. 2, Kamrup (Metro), Guwahati on 28.05.2026 and by producing a certified copy of the order, await for further orders that may be passed by the said learned Court.

¶42

As both sides allege being in possession of the suit land, with the change of stand by the learned counsel for the respondents that the respondents-plaintiffs were dispossessed, both sides are restrained from disturbing the status quo in respect of the land till the next date of appearance before the learned trial Court, i.e. 28.05.2026.

¶43

This revision petition stands disposed of.

¶44

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Raj Kumar Boro v. Deepika Dutta and Anr.

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Raj Kumar Boro v. Deepika Dutta and Anr.

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