- (1.) Since both the revisional applications arise out of the various order passed in the same suit, between the petitioners and the opposite party, relating to the same suit property described hereinafter, the same are disposed of by this common order. Both the revisional applications are at the instance of the defendants in Title Suit No. 1188 of 2016 (hereinafter referred to as "the said suit") filed by the plaintiff opposite party and pending before the learned 4th Civil Judge (Junior Division) at Howrah.
(2.) I consider it to be convenient to refer to the parties by their array in the Court below. Briefly stated, the facts which give rise to these revisional applications are that on September 09, 2016 the plaintiff filed the said suit before the learned Court below claiming, inter alia, a declaration that it is the absolute owner and occupier of the plot of land, comprising of about 21 cottas, together with a structure thereon comprising 900 square feet at Holding No. 99/1, Dr. Abani Dutta Road (hereinafter referred to as "the suit property") and that the defendants have no right, title or interest over and in respect of the suit property and they are trying to encroach the suit property and a decree for permanent injunction restraining the defendants from entering into the suit property or to change the nature and character of the suit property by any type of construction thereon. In the plaint, it is the case of the plaintiff that the defendants are the owners of the property adjoining to the suit property, being premises No. 98, Dr. Abani Dutta Road. In the suit, the plaintiff also filed an application under Order 39 Rules 1 and 2, read with Section 151 of the Code of Civil Procedure, 1908 (in short "the Code") praying for, an order of injunction restraining the defendants and their men and agents from entering into the suit property and from changing the nature and character of the same by making any type of construction thereon. The plaintiff moved the said application before the learned Court below ex parte and on September 09, 2016 the learned Court below passed an ex parte order of injunction restraining the defendants from disturbing the peaceful possession of the plaintiff in respect of the suit property or from changing the nature and character of the suit property till the returnable date, that is, November 05, 2016. The plaintiff was directed to comply with the provisions under Order 39 Rule 3(a) and (b) of the Code. On September 13, 2016 the plaintiff filed its affidavit, in compliance with the provisions under Order 39 Rule 3(a) and (b) of the Code along with postal receipts. On September 14, 2016 the plaintiff filed a petition before the learned Court below for putting up the case records and also moved an application under Section 151 of the Code alleging that after being informed of the said injunction order dated September 09, 2016 the defendants started to threaten them with dire consequences and to encroach the suit property and on September 13, 2016 the defendants attempted to raise boundary wall over the suit property causing encroachment of a substantiate portion thereof. In the said application the plaintiff prayed for, an order directing the Inspector-in-Charge, Golabari Police Station to ensure compliance of the said order dated September 09, 2016 passed by the learned Court below. In the said application, on September 14, 2016 the learned Court below passed an ex- parte order directing the Officer-in- Charge, Golabari Police Station to ensure implementation of the said order of injunction dated September 09, 2016 and that the police personnel to be sent to the suit property on regular interval of 72 hours to avoid breach of peace. On September 17, 2016 the plaintiff further filed a put up petition before the learned Court below and moved another application under Section 151 of the Code praying for, mandatory order of injunction directing the Officer-in-Charge, Golabari Police Station to assist it to demolish the wall put up by the defendants at the suit property in violation of the order dated September 09, 2016. By an order dated September 23, 2016 the learned Court below rejected the said application of the plaintiff on the grounds, inter alia, that there is no prayer in the plaint for an order of mandatory injunction, that allegation of encroachment is required to be proved by trial and evidence and that demolition/dismantling of alleged illegal boundary wall not part of ad interim injunction order. By the said order dated September 23, 2016 the learned Court below clarified that the order dated September 14, 2016 has been allowed and the police assistance extends to ensure no further change in the nature and character of the suit property. On November 05, 2016, that is, on the returnable date of the main injunction application, the plaintiff filed an application under Order 6 Rule 17 of the Code praying for, amendment of the plaint to incorporate, the alleged events taken place at the suit property subsequent to the passing of the said order dated September 09, 2016 and a relief for a decree for mandatory injunction. By order dated November 10, 2016 the learned Court below allowed the plaintiff's amendment application and directed the Dealing Assistant of the Court to release the summons with the amended plaint for service on the defendants. On November 15, 2016 the plaintiff filed another put up petition before the learned Court below and moved a further application under Section 151 of the Code praying for, an order granting liberty to it to remove the wall already existing within the suit property at its own expenses in police protection. The learned Court below fixed the hearing of the said application on November 25, 2016. On November 28, 2016 when the said application was taken up for hearing, it was recorded by the learned Court below that the copy of the amended plaint forwarded to the defendants were returned with an endorsement 'Refused'. By the ex-parte order dated November 28, 2016 the learned Court below allowed the said application filed by the plaintiff under Section 151 of the Code and directed the Officer-in-Charge, Golabari Police Station to assist the plaintiff in dismantling the wall within the suit property towards the west of the suit property wherein RT Shed structure stand, at its own cost and that such assistance/action to be completed in one working day. By the said order the learned Court below also recorded that since the defendants refused to accept the delivery of the amended plaint the suit be placed for ex parte hearing on February 4, 2017.
(3.) After passing of the said order dated November 28, 2016 on December 9, 2016 the defendant no.2 filed an application before the learned Court below praying for, recalling of the orders dated September 14,2016 and November 28, 2016. He also filed an application praying for, stay of operation of the said ex parte orders dated September 14, 2016 and November 28, 2016. In the said applications the defendant no. 2 alleged that the writ of summons of the suit and the plaint were not tendered to him by any mode of service and he came to know about the suit and the order dated November 28, 2016 for the first time from officer of the local police. By order dated December 9, 2016 the learned Court below rejected the first application of the defendant no.2 praying for recalling of the said ex parte orders dated September 14, 2016 and November 28, 2016. Consequently, the second application of the defendant no. 2 praying for, stay of operation of the said two ex parte orders dated September 14, 2016 and November 28, 2016 became infructuous. Thereafter, on December 12,2016 the defendants filed the revisional application, being CO 4549 of 2016 ( hereinafter referred to as "the first revisional application") challenging the orders dated September 14, 2016, November 10, 2016 and November 28, 2016 passed by the learned Court below before this Court. On December 15, 2016 the learned Court below filed the revisional application, being CO 4595 of 2016 (hereinafter referred to as "the said second revisional application") challenging the aforementioned order dated December 9, 2016 passed by the learned Court below. After filing of the present revisional applications, on December 16, 2016 the defendants filed two separate appeals before the learned District Judge, Howrah, one against the ex-parte order of injunction dated September 9, 2016 passed by the learned Court below and the other, against the order dated November 28, 2016 passed by the learned Court below.;