Jyotirmay Bhattacharya, J. - (1.) THIS Application under Article 227 of the Constitution of India is directed against an order dated 28th September, 2007 passed by the learned Second Additional District Judge at Alipore in Misc. Appeal No. 66 of 2007 reversing the order dated 5th February, 2007 passed by the learned Civil Judge, Senior Division, 2nd Court at Alipore in Title Suit No. 121 of 1962 at the instance of some of the parties in the partition suit.
(2.) THE facts leading to the filing of this revisional application which are necessary for consideration of the merit of this revisional application are set out hereunder in brief: a) A suit for partition being Title Suit No. 43 of 1956 which was subsequently renumbered as Title Suit No. 121 of 1962 was instituted in Alipore Court for partition of suit properties wherein four different families namely Sardars, Mondals, Sanfuis and Pals were involved. b) By an order being No. 54 dated 24th November, 1958 passed by the learned Trial Judge, one Sri Ranjit Kr. Ganguly, Advocate was appointed as a receiver in respect of the entire suit properties with all power of management of the properties. The receiver took possession of the suit property on 30th November, 1958 and reported the same to the Court on 5th December, 1958. Subsequently upon the death of the said receiver, another learned Advocate viz. Sri Sankar Sen was appointed as a receiver over the suit properties on 19th February, 2000. The said receiver also confirmed in his report that he had received possession of the suit property. c) Various allegations were made against the said receiver for mismanagement of the suit properties and ultimately by an order passed by Hon'ble Justice Prabir Kr. Samanta, as His Lordship then was, on 1st September, 2005 in CPAN No. 688 of 2004, the contemnor (receiver) was held to be guilty of contempt and punishment by way of imprisonment was awarded against him. However, subsequently such punishment was stayed by the Hon'ble Appeal Court on 2nd September, 2005. His Lordship observed that the said receiver does not deserve to be retained as receiver over the estate any further. The learned Trial Judge was directed to take appropriate steps accordingly. d) A proceeding for removal of the said receiver has already been initiated and the same is still pending. An interim order was passed to this effect that pending such disposal, the receiver so appointed shall remain restrained from dealing with any of the suit properties in any manner whatsoever. e) Part of the suit properties with which this Court is presently concerned was acquired by the State of West Bengal under Land Acquisition Act. After acquiring a part of the suit property, the State of West Bengal and the West Bengal Industrial Development Corporation (WBIDC) demised an aggregate area of 7.4 acres of land in Mouza Barakhola to Metro Cash & Carry India Pvt. Ltd. for a premium of Rs. 16 crores. After obtaining lease of the aforesaid land, the said lessee started raising construction in the demised premises by end of May, 2006. f) Immediately thereafter the Sanfui group filed a writ petition before this Hon'ble Court for challenging the said acquisition proceeding. An interim order of injunction for restraining the lessee (Metro) from raising further construction in the demised premises was sought by the petitioners therein in the said writ petition. The said writ petition being W.P No. 13184(W) of 2006 was entertained by a learned Single Judge of this Hon'ble Court on 30th May, 2006 and direction was given to the parties for filing their respective affidavits in the said proceeding. An interim order was passed to the effect that steps taken, in the meantime, will abide by the result of the writ petition. Nobody challenged the said order in any higher forum and the said order is still operating in the field. g) Thereafter the defendant No. 51 namely Vikhyram Naskar filed an application in the said suit inter alia praying for an injunction for restraining the opposite parties in the suit along with third parties from changing the nature and character of the suit property on the ground that some of the parties in the suit in collusion with third parties have been changing the nature and character of the suit properties by affixing board of Metro Cash & Carry on consent of parties. the prayer for injunction of the said defendant was allowed by the learned Trial Judge on 16th June, 2006 by directing all the parties in the suit to maintain status quo in respect of the suit property by restraining themselves from selling, transferring, alienating or otherwise disposing of the suit property between inter party or any third party and/or from changing the nature and character of the suit property in any manner whatsoever till the disposal of the suit. h) Subsequently on an application filed by the said defendant No. 51, the learned Trial Judge, by an order dated 3rd July, 2006 requested the Superintendent of Police, South 24 -Parganas to issue direction upon the O.C., Purba Jadavpur P.S. to see that the injunction order dated 16th June, is maintained by both the parties and/or their men and agents in proper form. i) Subsequently the other defendants being defendant Nos. 41 Ka(1) and 41 Ka(4) filed an application under Section 151 of the Civil Procedure Code inter alia praying for issuance of direction upon the S.P., 24 -Parganas, South and O.C. and S.I. of Purba Jadavpur P.S. to stop the works being done by all the third parties intruders including the trespassers specifically named Metro Cash & Carry India Pvt. Ltd. and the henchmen in the suit property and also for restraining all third parties including Metro Cash & Carry India Pvt. Ltd. from changing the nature and character of the suit property situated at Mouza Barakhola with immediate effect. j) The learned Trial Judge by an order dated 5th February, 2007 allowed the said application of those defendants and directed the Superintendent of Police, South 24 -Parganas, Alipore to see that the order of the Court, passed on 16th June, 2006 is complied with strictly. k) Metro Cash & Carry India Pvt. Ltd. (lessee) was aggrieved by the said order as its right, title and interest in its leasehold property was prejudicially affected by the said order passed by the learned Trial Judge on 5th February, 2007. Hence, an appeal was filed by the said lessee before the learned District Judge at Alipore. The said appeal which was registered as Misc. Appeal No. 66 of 2007 was admitted for hearing by learned District Judge at Alipore and was ultimately transferred to the Court of the learned Additional District Judge, 2nd Court at Alipore. An application for stay of the operation of the impugned order was filed along with the said appeal. In the said application, a prayer seeking leave to file the said appeal was included as the said appeal was filed by a third party who was adversely affected by the impugned order. Though the said application contained such a prayer for leave to appeal but, in fact, formal order granting such leave was not recorded in the said appeal. As a result, an objection was raised by the respondents therein regarding maintainability of the said appeal as the said appeal was filed by the third party without obtaining leave to appeal from the learned Appeal Court. l) The petitioners herein also challenged the maintainability of the said appeal by alleging that since the suit property was under the possession of the receiver appointed by the Court, the appellant cannot maintain this appeal without obtaining leave to appeal either from the Trial Court or from the Appeal Court. m) The petitioners also contended that since the parent order of injunction which was passed on 16th June, 2006 has not been challenged, the appeal is bound to fail. Objection relating to bar of limitation in filing the said appeal was also raised by the petitioners in the said appeal. n) These are primarily the grounds on which the maintainability of the said appeal was challenged. o) The said appeal was ultimately decided in favour of the appellant therein namely Metro Cash & Carry India Pvt. Ltd. by the learned Appeal Court. Thus, the said Misc. Appeal was allowed and the order which was impugned in the said appeal was set aside by the learned Appeal Court. p) While allowing the said appeal, the learned Appeal Court held that since the order dated 16th June, 2006 was ultimately merged with the order dated 5th February, 2007, the said appeal which was directed against the order dated 5th February, 2007 cannot be held to be barred by limitation. The learned Appeal Court also held that since the right of the appellant was ultimately affected by the order dated 5th February, 2007, the appellant can maintain the said appeal by challenging the order dated 5th February, 2007 alone. The learned Appeal Court held that the Appellant can maintain the said appeal without challenging the order dated 16th June, 2006 as the said order was not directed against the appellant. The learned Appeal Court further held that the appeal was not barred by limitation. It was also held therein that the petitioners' contention that the Misc. Appeal was not tenable as the said appeal was filed without obtaining leave either from the Trial Court or from the Appeal Court though the reliefs claimed therein relates to a part of the suit property under the possession of the receiver, has no substance in view of the settled principle of law that third parties are not restrained in any manner in respect of any property until appointment of the receiver has been perfected and the receiver is actually in possession of the property which is the subject matter of the appeal. The learned Appeal Court also held that the appeal is very much maintainable at the instance of the said lessee as the principle of natural justice has been grossly violated in passing the order dated 5th February, 2007 by the learned Trial Judge without giving any opportunity of hearing to the said appellant. The learned Appeal Court also held that the impugned order is appealable under Order 43 Rule 1 of the Code of Civil Procedure, as the injunction order which was initially passed on 16th June, 2006 was virtually extended to bind the appellant by the order dated 5th February, 2007 which was challenged in the said appeal. These are the findings on which the said appeal was allowed by the learned Appeal Court. The petitioners are aggrieved by the said order. Hence, they filed the instant application under Article 227 of the Constitution of India before this Court.
(3.) HEARD Mr. Kamalesh Bhattacharya, learned Advocate for the petitioners. Mr. Kapoor, learned Senior Counsel appearing for Metro Cash & Carry India Pvt. Ltd., Mr. Saktinath Mukherjee, learned Senior Counsel appearing for WBDIC, Mr. Balai Roy, the learned Advocate General appearing for the State, Mr. Aniruddha Chatterjee, learned Advocate appearing for some of the opposite parties and Mr. Ghosal, learned Advocate appearing for some of the opposite parties.;