Prasenjit Mandal, J. - (1.) THIS application is at the instance of the defendant/respondent and is directed against the order dated August 20, 2010 passed by the learned Additional District Judge, Fifteenth Court, Alipore in Misc. Appeal No.43 of 2010 arising out of the Title Suit No.5 of 2010.
(2.) THE plaintiff/opposite party filed a title suit being Title Suit No.5 of 2010 for partition and other reliefs and in that suit, the plaintiff filed an application for temporary injunction. The plaintiff moved the petition for temporary injunction but the learned Trial Judge [learned Civil Judge (Senior Division), Baruipur, District South 24 Pargnas] issued a notice of show cause but did not grant any ad interim injunction. Being aggrieved, the plaintiff filed the misc. appeal being Misc. Appeal No.43 of 2010 which was disposed of by the learned Additional District Judge, Fifteenth Court, Alipore granting an order of status quo upon both the parties with a direction to dispose of the application for temporary injunction as early as possible. Being aggrieved by the said order, the defendant / respondent has preferred this application. Mr. Mitra, learned senior Advocate appearing on behalf of the petitioner, submits that in fact, his client purchased the suit property comprising of three plots under the plot nos.19, 20 and 23 under Khatian no.437 of Mouza Jagannathpur, District South 24 Parganas by three registered deeds of conveyance in 1964 and 1966 from the then recorded owners. The L.R. record has also been preferred in the name of the defendant and in fact, the defendant is in possession of the suit property all along since the deed of conveyance in 1964 and 1966. Mr. Mitra also contends that the plaintiff asserts that he has obtained the suit property by a deed of gift in 2000 only but his donors name does not appear in the R.S. Record or even in the L.R. record. There is no indication that the donor possessed the suit property all along. In fact, the petitioner runs a business on the suit land all along since 1964/1966. He also contends that the learned Trial Judge did not grant ad interim injunction rightly but the lower appellate court has granted the order of injunction by way of status quo and for that reason his client has been prejudiced. So, the impugned order should be sustained. Mr. Mitra also submits that after obtaining an ad interim injunction the plaintiff did not comply with the provisions of Order 39 Rule 3 of the C.P.C. and for that reason, the interim order as passed by the learned Trial Judge should be set aside. In support of his contention, the decision of one of the Honble Judges of this Honble Court (Justice Nadira Patherya) in C.S. No.256 of 2009 has been referred to wherefrom it will appear that order of injunction has been vacated for noncompliance of Order 39 Rule 3 of the C.P.C.
(3.) ON the other hand, Mr. S. P. Roychowdhury, learned senior Advocate appearing on behalf of the opposite party, submits that suit is for partition and at the time of filing of the suit, the plaintiff prayed for ad interim injunction in consideration of the situation. He contends that at the time of consideration of ad interim injunction, the Court is to see whether there is a prima facie case to go for trial and if triable issue has been raised by the plaintiff. He has also submitted that at the time of granting an ad interim injunction, the court should see whether the situation demands for consideration of such prayer as made out in the body of the plaint. He contends that the learned Trial Judge failed to exercise his jurisdiction and he has wrongly decided that the relief of ad interim injunction should not be granted because the defendant is a juristic person. Such observation has been rightly rejected by the learned lower appellate court. The object of granting the injunction is to keep the property in status quo till the final disposal of the suit. In support of his contention Mr. Roychowdhury has referred to the decisions of AIR 1988 Cal 25, (2004) 8 SCC 488, 2000 (2) CHN 856 and AIR 1983 SC 742. By referring to the said decisions, Mr. S. P. Roychowdhury has submitted that the learned lower appellate Court has rightly passed the order of status quo. Now, therefore, the question that arises for decision is whether the impugned order should be sustained. Upon hearing the learned counsel for the parties and on going through the materials on record, I find that this application has arisen when the learned Trial Judge issued a notice of show cause upon the petitioner and he refused to grant the ad interim injunction. Then, on being aggrieved, the plaintiff /appellant moved the learned lower appellate court and the learned Additional District Judge granted an order of status quo. The learned lower appellate court disposed of that misc. appeal directing the parties to maintain status quo of the suit property till the disposal of the petition for temporary injunction.;