SANWAR ALI Vs. ANJALI SINGHA

JUDGEMENT

(1.) Challenge is to the order dated February 7, 2009 passed by the learned Additional Civil Judge (Junior Division), First Court, Alipore in Title Suit No. 132 of 2007 thereby allowing an application under Order 26 Rule 9 of the Code of Civil Procedure filed by the Plaintiff.

(2.) The Plaintiff instituted a title suit being T.S. No. 20 of 2002 praying for a decree for declaration of his tenancy right under the Defendant No. 6, decree of permanent injunction and a decree for mandatory injunction in respect of the suit property, as described in the schedule of the plaint, against the Defendents. The Defendant Nos. 1 and 2 are contesting the said suit by filing a written statement. At the time of filing of the suit, the Plaintiff moved an application for temporary injunction. The prayer for ad interim injunction was refused by the learned Trial Judge. Thereafter a misc. appeal was preferred against the said order and the learned Additional District Judge allowed the misc. appeal directing both the parties to maintain status quo with regard to the suit property and also directed the learned Trial Court to dispose of the application for temporary injunction. Thereafter, the Plaintiff filed an application under Order 39 Rule 7 of the Code of Civil Procedure which was disposed of without any order. Thereafter, an application was filed under Order 26 Rule 9 of the Code of Civil Procedure for local investigation in respect of certain points with relation to the suit property. That application was allowed by the impugned order. Being aggrieved, this application has been preferred by the Defendant Nos. 1 and 2.

(3.) Mr. Biswajit Basu, learned Advocate appearing on behalf of the Petitioners, submits that the Plaintiff instituted the said suit for declaration of his tenancy right, permanent injunction and for mandatory injunction praying for demolition of encroachment. At the time of filing of the suit, the Plaintiff moved an application for ad interim injunction and that prayer was refused, Thereafter, the learned lower appellate Court directed the parties to maintain status quo with regard to the suit property. In an aid to the disposal of the said application for temporary injunction, the Plaintiff filed the said application under Order 26 Rule 9 of the Code of Civil Procedure. He refers to the points of investigation as laid down in the application for local investigation and thus, he submits that the learned Trial Judge should not have rejected such application since it was simple as an aid to the application for temporary injunction.