Bimal Chandra Biswas v. Arup Karmakar

JUDGMENT AND ORDER

(CAV) Heard Mr. A. Ikbal, learned counsel representing the petitioner as well as Ms. R. Choudhury, learned counsel appearing for the respondent.

¶2This is an application under Article 227 of the Constitution of India praying for exercising the supervisory jurisdiction of the High Court.

¶3The factual matrix lies within a very short campus.

¶4The petitioner filed the Title Suit being T.S. 13/2015 against the respondent. Along with the plaint, a petition under Order 39 Rule 1 and 2 of the CPC was also filed. The said injunction petition was allowed and the present respondent was temporarily restrained from constructing slabs in his RCC building, which protruded over the boundary wall.

¶5Subsequently, the Title Suit was dismissed. Therefore, the present petitioner preferred an appeal in the court of the District Judge. While filing the appeal, the petitioner again filed a petition under Order 39 Rule 1 and 2 CPC praying for grant of temporary injunction.

¶6On 23.02.2022, the appeal being Title Appeal No.01/2021 was disposed of by the District Judge remanding the case to the trial court with certain directions.

¶7Thereafter, on 28.02.2022, the aforesaid injunction petition was also disposed of by the District Judge. In fact, the injunction petition was dismissed.

¶8Mr. Iqbal submits that with the passing of judgment on 23.02.2022, the appellate court of District Judge became functus officio and therefore, he should not have disposed of the injunction petition five days Page No.# 3/3 later.

¶9Per contra, Ms. R. Choudhury submits that said order dated

28.02.2022, is an appealable order under Order 43(r) of the CPC and therefore, the petitioner should have filed an appeal and in such a situation, this Court is not supposed to exercise the power under Article 227 of the Constitution of India.

¶10I have given my anxious considerations to the submissions made by the learned counsels of both sides.

¶11The Title Appeal was disposed of on 23.02.2022 and the connected injunction petition was disposed of 5 days later, i.e. on 28.02.2022. With the delivery of the judgment on 23.02.2022, the first appellate court of the District Judge became functus officio and therefore, the dispose of the injunction petition five days thereto is bad in law. This is a fit case for exercising the supervisory power of the High Court under Article 226 of the Constitution of India. Therefore, the order dated 28.02.2022 passed by the District Judge in Misc. (J) Case No.16/2021 arising out of Title Appeal No.01/2021 is set aside.

¶12Before parting with the record, this Court holds that the petitioner is at liberty to file a fresh petition under Order 39 Rule 1 and 2 of the CPC in the trial court.

¶13The Revision Petition stands disposed of accordingly. JUDGE Comparing Assistant

PageoNo.#o1/3 GAHC010056862022 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oCRP/35/2022ooooooooo BIMALoCHANDRAoBISWASo S/O-oLATEoNAGENDRAoNATHoBISWAS,oRESIDENToOFoTITABORoTOWNo CHARIALI,oAMGURIoKHARIKOTIAoMOUZA,oP.O.oANDoP.S.oTITABOR,oPIN-o 785630,oDISTRICToJORHAT,oASSAM. VERSUSo ARUPoKARMAKARo S/O-oLATEoJAGAToJIBENoKARMAKAR,oRESIDENToOFoTITABORoTOWNo CHARIALI,oAMGURIoKHARIKOTIAoMOUZA,oP.O.oANDoP.S.oTITABOR,oPIN-o 785630,oDISTRICT-oJORHAT,oASSAM. AdvocateoforotheoPetitionerooooo:oMR.oRoBARUAHo AdvocateoforotheoRespondento:oMS.oRoCHOUDHURYoo oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo PRESENT THEkHON'BLEkMR.kJUSTICEkPARTHIVJYOTIkSAIKIA oo oooooooooooFor the Petitioner : Mr. A. Ikbal, oooooooooooooooooooooooooooooooooooooooooooooooooooooooooo Advocate. oooooooooo For the Respondent : Ms. R. Choudhury, Advocate. o oooooooooo Date of Hearing :ooooooooo 14.03.2023. Date of Judgment : 16.03.2023. o Page No.# 2/3