Atam Prakash Harlalka And ANR v. Santosh Kedia And ORS

OD-4 & 6

ORDER

IN THE HIGH COURT AT CALCUTTA

Civil Appellate Jurisdiction ORIGINAL SIDE APOT/141/2022 WITH CS/80/2022 IA NO.GA/1/2022 ATAM PRAKASH HARLALKA & ANR.

VERSUS

SANTOSH KEDIA & ORS.

APOT/145/2022 WITH CS/80/2022 IA NO.GA/1/2022 BISHWANATH HARLALKA & ORS.

VERSUS

SANTOSH KEDIA & ORS.

BEFORE

The Hon'ble Justice HARISH TANDON The Hon'ble Justice PRASENJIT BISWAS Date: 8TH SEPTEMBER, 2022 Appearance Mr. Debasish Ghosh, Advocate Mr. Sanjay Mukherjee, Advocate Mr. Suvradev Chowdhury, Advocate Mr. Souma. Bhattacharya, Advocate ....for the appellants/petitioners Mr. Rupak Ghosh, Advocate Mr. Sourav Roy, Advocate Mr. V.V. V. Sastry, Advocate .. for the respondents The Court : These two applications are taken up together as the appeal is filed by different categories of defendants challenging the self-

same order. After perusing the impugned order, we find that it would be futile exercise to keep the appeal pending. Therefore, we decide to proceed with disposal of the appeal itself.

These appeals arose from an order dated 7th July, 2022 passed in CS/80/2022 by which applications for injunction filed by the plaintiffs/respondents were disposed of on the basis of an undertaking of the respondents recorded in the order dated 19th May, 2022. At the time of moving the said applications for injunction on 17th May, 2022, the Trial Court granted an ad interim order of injunction restraining the appellants from dealing with, encumbering and/or transferring the said property in favour of any third party till 19th May, 2022. The said applications were listed on the returnable date and the submission was made on behalf of the appellants that they have no intention to sell, alienate, encumber or create any third party interest in respect of the suit premises.

However, plea of maintainability of the applications was raised and was left open. The parties were directed to exchange affidavits. On the day the said applications for temporary injunction were listed for final disposal, submission was reiterated by the appellants that they have nothing to alter the status quo in respect of the suit premises. Since an undertaking was already there and the situation which was prevalent as on 7th July, 2022 have been accepted by the appellants, the Court proceeded to dispose of the applications on the basis of such undertaking.

There was no injunction order which was passed. However, the undertaking which was given before the Court was taken to be continued as the appellants agreed not to alter the position. The learned Advocate for the appellants is very much vocal in his submission that there has been a long recording of events happened before the Single Bench. It is submitted that the appellants were not represented on the day and, therefore, there was no occasion to make any submission pertaining to altering the position as it stood on the said date. The recording of the events in the judicial order is always treated to be sacrosanct, neither can be disputed by way of affidavit nor it is open to the parties to approach the Appellate Court on such ground.

The only remedy which is available to such aggrieved person is to approach the said Court by making an application indicating the events either having not happened or wrongly recorded to have happened and it is the Judge, who passed the order, shall decide the same. (see State of Maharashtra vs. Ramdas Shrinivas Nayak, AIR 1982 SC 1249) Since a point has been taken on the wrong recording of the events, we, therefore, do not find any ground to interfere with the said order as a Court of Appeal. The remedy has already been provided to the appellants and, therefore, it is open to the appellants to exhaust such remedy before the appropriate forum.

Both the appeals along with the applications are dismissed.

There is no order as to costs.

[HARISH TANDON, J.] [PRASENJIT BISWAS, J.] akg/