Prasenjit Mandal, J. - (1.) CHALLENGE is to the order dated September 5, 2006 passed by the learned Additional District Judge, Second Court, Hooghly in Misc. Appeal No.84 of 1999 thereby reversing the order no.30 dated June 8, 1999 passed by the learned Civil Judge (Senior Division), First Court, Hooghly in Title Suit No.62 of 1997.
(2.) THE petitioner was the defendant no.1 of the title suit filed by the plaintiff/opposite party. THE plaintiff instituted the said suit for declaration and partition. In that suit, the defendants in two sets, namely, the defendant nos.1 to 13 in one set and the defendant nos.14 & 15, namely, the opposite party nos.2 & 3, in another set, are contesting the said suit by filing separate written statements. THE defendant nos.1 to 13 filed an application for temporary injunction under Order 39 Rule 1 & 2 of the C.P.C. THE defendant nos.14 & 15 filed an objection against that application with the caption objection but, in fact, it was a counter-claim to have a right of possession of common place, such as, staircase, right to go to the roof for repair, etc. THE learned Trial Judge allowed both the petitions by the order no.30 dated June 8, 1999. Being aggrieved, the defendant nos.1 and others preferred a misc. appeal being Misc. Appeal No.84 of 1999 which was disposed of by the impugned order thereby reversing the order no.30 dated June 8, 1999 passed by the learned Trial Judge and giving liberty to the defendant nos. 14 & 15 to file separate objection against the application for temporary injunction filed by the defendant nos.1 to 13 and at the same time also by giving liberty to the defendant nos.1 to 13 to file a separate counterobjection against the written objection filed by the defendant nos.14 & 15. Being aggrieved by the said order of reversion, the defendant no.1 has preferred this application. Now, the question is whether the impugned order should be sustained. Upon hearing the learned counsel for the petitioner and on going through the materials on record, I find that the grievance of the defendant no.1 is not against the interim order but only to the latter portion of the order holding that the staircase is a joint property and the defendant nos.14 & 15 are at liberty to use the same and that the defendant nos.1 to 13 have no objection. It is also contended before me by Mr. Bhattacharyya that in fact partition was held amongst the co-sharers and according to such partition, the parties are possessing their respective portions of the suit properties. So, the impugned order cannot be supported. It is also contended that the application under Order 39 Rule 7 of the C.P.C. is still pending while the application for temporary injunction was disposed of by the impugned order. In fact, upon going through the materials on record, I find that the learned lower appellate Court did not come to a clear finding over the petition for temporary injunctions prayed for by the parties referred to above. The learned appellate Court while disposing of the appeal has observed that though the written objection filed by the defendant nos.14 & 15 appeared as a simple written objection as captioned by them against the application for temporary injunction filed by the defendant nos.1 to 13, in fact, it was a counter-claim as per provisions of Order 8 Rule 6A of the C.P.C. By the written objection, the defendant nos.14 & 15 have also asked for permitting them to use the joint staircase by unlocking the collapsible gates and doors of the second floor. The learned Trial Judge allowed both the applications filed by the respective parties. But, when the matter came to the knowledge of the learned lower appellate court that in fact, the defendant nos.1 to 13 did not get any opportunity file any written objection to the so-called written objection filed by the defendant nos.14 & 15 wherein they have made a counter-claim as stated above, the order of the learned Trial Judge under challenge was not tenable and as such, the learned lower appellate Court sent back the matter on remand to the learned Trial Judge giving liberty to the defendant nos.14 & 15 to file a separate objection against the application for temporary injunction filed by the defendant nos.1 to 13.
(3.) UNDER the circumstances, the learned lower appellate Court has come to a finding that without ascertaining the real picture regarding the respective possession and user of the properties in the dwelling house, the order under challenge before him, cannot be supported. He has also noticed that the order under challenge before him, suffers from irregularity and impropriety for the reasons discussed above. He has set aside the order no.30 dated June 8, 1999 remanding the matter for disposal afresh giving liberties to the parties to file written objections in respect of the rival claims filed by the parties. The learned lower appellate Court has also given liberty to the parties to move the application for local inspection, if they desire so. Thus, I find that the learned lower appellate Court has passed an open remand with regard to the matter under challenge before him.;