- (1.) This revisional application is directed against an order dated 2nd September, 2014, passed by the learned Civil Judge (Senior Division), Arambagh, Hooghly, in Title Suit No.99 of 2012. By the order impugned the learned Judge has rejected the petitioners application under Section 151 of the Code of Civil Procedure praying for permission of the Court to complete an unfinished construction.
(2.) This revisional application is at the instance of the defendants in a suit for partition. The petitioner contends that before the suit was filed the plaintiff and the defendant Nos.1 to 5 (petitioners herein) obtained a sanctioned plan jointly in respect of portions of one of the suit plots, namely, plot No.748 and started construction there at. After the suit was filed the plaintiff also filed an application for temporary injunction which was allowed by the learned Court below by an order dated 10th January, 2013 whereby on consent of both the plaintiff and defendant Nos.1 to 5 the injunction application was allowed and the parties were directed to maintain status quo in respect of the nature and character of the suit property as on date till disposal of the suit. By virtue of such order passed on 10th January, 2013 the defendants/petitioners are unable to raise further construction on their portion of plot No.748 which is one of the suit plots. As a result of such restraint the defendants/petitioners took out an application under Section 151 of the Code of Civil Procedure praying for an order to raise further construction on the portion of the suit plot so that he could complete his construction. The said application under Section 151 of the Code of Civil Procedure has been rejected by the learned Court below by the order impugned, holding, inter alia, that although, an order of injunction can be varied and/or discharged under the provisions of Order XXXIX Rule 4 of the Code of Civil Procedure in the event of undue hardship to any of the parties but the facts and circumstances as transpired from the materials on record does not reveal any such hardship as contemplated under Order XXXIX Rule 4 of the Code and, accordingly, the grounds of alleged hardship as contemplated by the defendants in their petition under Section 151 of the Code of Civil Procedure cannot be considered to be sufficient ground for varying or discharging the order of injunction.
(3.) Learned advocate Mr. Rameshwar Bhattacharya appearing for the petitioners submitted that learned Court below has very illegally passed the impugned order and he ought to have allowed the petitioners to raise further construction in the portion of the suit property because the order of injunction can also be modified under the provisions of Section 151 of the Code of Civil Procedure. In support of his submission Mr. Bhattacharya has relied on a judgment in the case of Shrimati Satu Bala Dassi & Ors. Vs. Chaturanan Saha & Ors., 2014 3 WbLR 318. The case is distinguishable on fact and is not applicable to the present case.;