Prasenjit Mandal, J. - (1.) THIS application is directed against the order dated September 18, 2007 passed by the learned Additional District Judge, Ghatal in Misc. Appeal No.6 of 2007 arising out of the Title Suit o.73 of 2007 pending before the learned Civil Judge (Junior Division), Ghatal, thereby rejecting the prayer for ad interim injunction.
(2.) THE short fact is that the plaintiff instituted a suit being Title Suit No.73 of 2007 for declaration and permanent injunction and he filed an application for temporary injunction. THE said application was moved before the learned Trial Judge, but the learned Trial Judge did not grant any ad interim order of injunction holding that an ad interim order of injunction could not be granted in absence of the respondent nos.1 and 2. Being aggrieved by the order of rejection, the petitioner preferred a misc. appeal being Misc. Appeal No.6 of 2007 and he filed an application for temporary injunction praying for ad interim order of injunction also. That application was moved before the Lower Appellate Court. But upon hearing the learned Counsel for the petitioner, the learned Additional District Judge was pleased to reject the prayer for ad interim order of injunction and he directed the appellant to serve a copy of the appeal and the application upon the respondent nos.1 and 2. Being aggrieved by such orders, this application has been preferred. Now, the question is whether the impugned order should be sustained. Upon hearing both the sides and on consideration of the materials on record I find that the petitioner filed the suit praying for declaration that he is a licensee in respect of the premises in suit and he should not be evicting from the suit premises save due process of law. By the application for temporary injunction, the petitioner has prayed for temporary injunction restraining the respondent nos.1 and 2 from making any transfer of the leasehold property to any third party. The petitioner has contended that the property involved in the suit is a leasehold property of the plaintiff nos.1 and 2 and another brother, namely, Sunil Kumar Pal and such lease was granted by the Zilla Parisad, Paschim Medinipore in the year 1963. The plaintiffs filed an application for renewal of the said lease on September 12, 1989 but the Zilla Parisad did not consider the prayer of the plaintiff and in the mean time, they announced that the lease granted in favour of the plaintiff had been cancelled and that fresh lease has been granted in favour of the defendant no.3 and the predecessor of the defendant no.4 series. The plaintiffs have contended that since they are in possession of the suit property, fresh lease cannot be granted without evicting them from the leasehold property. So, the lease granted by the Zilla Parisad in favour of the defendant is illegal and erroneous. Both the Courts below have rejected the prayer for temporary injunction on the ground that since the defendant nos.3 and 4 were granted lease in respect of the premises in suit as back as in the year 1981. It would not be proper for the Court to grant ad interim injunction without hearing the opposite parties. The petitioners have contended that the defendants are tenants under him. Therefore, I find that there is a prima facie case to go for trial but since, the defendants are already in possession of the suit property. I am of the view that both the Courts below have correctly observed that without hearing the defendants, it would not be proper to grant any ad interim order of injunction. Such concurrent findings arrived at by both the Courts below, I am of the opinion, should not be interfered with. I hold that the Appellate Court has rightly rejected the prayer for ad interim order of injunction.
(3.) DURING the argument, Mr. S.K. Chakraborty learned Advocate appearing for the petitioner has referred to the decision of Swapan Kumar Dutta v. Dharam Chand Jaiswal and anr. reported in 2002(2) CHN 627 and thus, he submits that such second lease in favour of the defendant nos.3 and 4 by the Zilla Parisad is not valid. Therefore, such second lease should not be taken into consideration. The question of validity of the second lease, I think, is a matter of decision to be taken at the time of trial of the suit. At the initial stage of the suit, i.e., at the time of consideration of the prayer for ad interim injunction, the Court is to consider whether there is prima facie case and that there is any urgency in passing an ad interim order of injunction or not. So far as prima facie case, it appears that the plaintiff has shown the prima facie case to go for trial. Therefore, this decision shall be relevant at the subsequent stage of the suit and not at the initial stage. Since the defendants are in possession, there is no urgency in the matter. The Lower Appellate Court as well as the learned Trial Judge has rightly rejected the prayer for ad interim injunction. I hold that there is nothing to interfere with the impugned order.;