Arun Kumar Bhattacharya, J. - (1.) The hearing stems from an application filed by the petitioners praying for revision of the order dated 29.6.2002 passed by the Ld. Additional District Judge, 7th Court, Alipore in Misc. Appeal No. 305/2001.
(2.) The circumstances leading to the above revision are that as heirs of Srihari Sardar, the plaintiffs instituted T.S. 112/1996 in the Court of Ld. Civil Judge (Sr. Div.), Baruipur for partition of the disputed property claiming ⅓rd share therein which was denied by the defendants inter alia contending that Srihari Sardar transferred his ⅓rd share in the plots of Khatian No. 201 on 6.4.1951 to one Sahabaj Mondal and after his demise his legal heirs transferred the same to one Kartick Chandra Halder who obtained a decree in respect of the said property against the plaintiffs in T.S. 134/1989 on 14.11.1990 and transferred the said property to Bharati Sardar, Subal Sardar and Jagadish Sardar on 5.9.1997. Srihari also transferred his entire interest in plots of Khatian No. 113 on 12.3.1943 to Naimuddi Mondal and after his demise his legal heirs transferred the same on 30.12.1981 to the wives of defendant Nos. 1 to 3, and as such the defendants are in possession of the property. The plaintiffs' earlier suit being T.S. 148/1986 against the defendants in respect of the same property filed in the Court of Ld. Munsif, 2nd Court, Baruipur was dismissed on contest on 16.7.1996. In the said T.S. 112/1996 suppressing the above material facts the plaintiffs filed an application for temporary injunction which, on rejecting the defendants' prayer for adjournment, was allowed ex parte on 16.4.2001. The defendants filed an application under Order 39, Rule 4 C.P. Code which was dismissed with cost vide Order No. 37 dated 7.6.2001, and the appeal being Misc. Appeal 305/2001 preferred against the said order was also dismissed by the Ld. Additional District Judge, 7th Court, Alipore vide order dated 29.6.2002. Being aggrieved by and dissatisfied with the said order the present revision has been preferred. All that now requires to be considered is whether the Ld. Court below was justified in passing the said order.
(3.) Mr. Supravat Bhattacharya, Ld. Counsel for the petitioners on referring a decision reported in Bipin Krishna Sur a Goutam Kumar Sur, 1981 (1) C.L.J. 71 advanced argument contending that though the application for injunction was heard ex parte by the Ld. Trial Court, it has been shown as disposed of on contest which is not the correct state of affairs and that since the O. P./plaintiffs managed to obtain the said order of injunction by suppressing the material facts of dismissal of their earlier suit T.S. 148/1986 on contest relating to the disputed property against the present petitioner/defendants on 16.7.1996 and decree of T.S. 134/1989 brought by'Kartick Chandra Halder in respect of property appertaining to Khatian No. 201 against the said plaintiffs, on 14.11.1990 and the said order of injunction has caused hardship to his clients thus attracting the provision of second Proviso to R. 4 of Order 39, the Ld. Lower Appellate Court erred in dismissing the Misc. Appeal. Mr. Jaharlal Roy, Ld. Counsel for the O. Ps., on the other hand, while supporting the impugned order contended that the requirements of the provision of Order 39, Rule 4 of C.P. Code having not been fulfilled, the Ld. Lower Appellate Court rightly dismissed the appeal.;