- (1.) In a suit for declaration and injunction, the plaintiff filed an application for temporary injunction under Order 39 Rules 1 and 2 of the Code of Civil Procedure inter alia praying for temporary injunction for restraining the defendant No.1, its men and agent from entering into the suit property and/or from disturbing and/or interfering with the peaceful enjoyment and possession of the plaintiff in the suit property and/or from dispossessing the plaintiff therefrom and/or creating any obstruction in the matter of peaceful enjoyment of the plaintiff and also for restraining the defendant from obtaining any plan sanctioned in the name of the defendant by fraudulent means in respect of the suit property and also for restraining the defendant No.2 from sanctioning any plan in the name of the defendant in respect of the suit property till the disposal of the suit. An ad interim order of injunction was also prayed for claiming similar relief till the disposal of the plaintiff's application for temporary injunction. The learned Trial Judge, by an order being No. 2 dated 4th December, 2008, was pleased to pass an ad interim order of injunction restraining the defendant No.1 from creating any obstruction and/or also from disturbing the peaceful possession of the plaintiff in the suit property till 5th January, 2009.
(2.) The said interim order of injunction was subsequently extended from time to time. The defendant No.1, after coming to know about the said order of injunction, appeared in the said suit and filed an application under Order 39 Rule 4 of the Code of Civil Procedure, inter alia praying for vacating or setting aside the ex parte ad interim order of injunction passed by the learned Trial Judge on 4th December, 2008. It was stated in the said application that the plaintiff intentionally mentioned the wrong address of the defendant No.1 in the cause title of the plaint and as a result thereof, neither the summons nor any notice informing the injunction order was served upon the said defendant either by the Court or by the plaintiff. The said defendant claimed that the plaintiff has no title over the property which is owned by the defendant No.1. It was further stated therein that the suit property is distinctly different from the property of the defendant No.1. The said defendant further claimed that the said defendant mutated its name in the property purchased by it and has also got a plan sanctioned by the competent authority for raising a new construction on the defendant's own property. It was further stated therein that apart from the present suit the plaintiff filed another suit against this defendant in the name of M/s. Concord Estates and its members seeking identical declaration and injunction in respect of the self same suit property. After being unsuccessful in getting an ad interim order of injunction in the said suit the plaintiff filed an appeal being Misc. Appeal No. 391 of 2007 before the learned District Judge at Alipore and obtained an order of injunction against the defendant herein. The plaintiff is still enjoying the said order of injunction and the said appeal is still pending for disposal before the learned Sixth Additional District Judge at Alipore. Thus on the grounds as aforesaid the defendant prayed for vacation and/or discharge of the ad interim order of injunction which was passed by the learned Trial Judge in the present suit.
(3.) The defendant's said application was allowed by the learned Trial Judge vide Order dated 24th May, 2010 by holding inter alia that the suit premises being Premises No.30 Rajdanga Road, Nabapally under P.S. Kasba is different from the premises of the defendant No.1 being holding No. 535/4, Rajdanga Main Road. The learned Trial Judge held that since the defendant has got its name mutated in respect of its aforesaid holding and/or has also got the building plan sanctioned by the Municipal Authority, the injunction order which was passed in the suit is liable to be vacated. Accordingly the ad interim order of injunction which was passed by the learned Trial Judge in the suit was vacated and the application for vacating interim order filed by the defendant No.1 was thus allowed. Being aggrieved by the said order, the plaintiff preferred an appeal being Misc. Appeal No. 311 of 2010 before the learned District Judge at Alipore. The said appeal was admitted for hearing. After admission of the said appeal, the plaintiff/petitioner filed an application for interim injunction claiming identical relief during the pendency of the said appeal. An ad interim order of injunction in similar terms was also prayed for, in the said application. The defendant No.1 lodged Caveat in the said appeal. The hearing of the appellant's said application for interim injunction could not be taken up as the defendant/caveator prayed for time for filing objection against the appellant's said application for interim injunction. However the learned Appeal Court fixed 24th June, 2010 for hearing of the appellant's said application for injunction. Since the appellant's prayer for ad interim injunction was not granted by the learned Appeal Court, the plaintiff/appellant has come before this Court with this application under Article 227 of the Constitution of India.;