- (1.) The challenge is made to an order no. 150 dated July 20, 2016 passed by the learned Civil Judge (Senior Division), Diamond Harbour, 24-Parganas in Title Suit No. 173 of 1999 on the ground that the Trial Court cannot postpone the disposal of an application for mandatory injunction to be taken up at the time of final hearing of the suit.
(2.) The learned advocate for the opposite parties raises preliminary objections. The first objection he took is that the application under Article 227 of the Constitution of India is not maintainable, as remedy lies by way of an appeal under the provisions of the Code of Civil Procedure. Though no provision is indicated by the learned advocate, but this Court can very well imagine that he wanted to refer Order XLIII Rule 1 (r) of the Code of Civil Procedure. By the impugned order the Trial Court neither rejected the said application nor refused to pass an interim order on such application, but simply kept the said application in suspended animation to be decided at later point of time. There is no decision taken by the Court below affecting the rights of the parties except that the said application should be heard and disposed of before the suit is taken up for final disposal. This Court, therefore, does not find any substance in such preliminary objection that such decision comes within the ambit of Order XLIII Rule 1(r) of the Code.
(3.) The second preliminary objection taken by the learned advocate for the opposite parties is that the Court cannot grant mandatory injunction at the interlocutory stage. I am also not agreeable to accept such bald proposition of law. There is no fetter on the part of the Court to pass temporary mandatory injunction at the interlocutory stage. The only consideration which should weigh to the Court when such application is dealt with that it must come within the purview of rarer of rarest case.;