Smt. Kalawati v. Shri Muthu Swamy And ORS.
IN THE HIGH COURT AT CALCUTTA
[ CIRCUIT BENCH AT PORT BLAIR ] *** CO/2/2023 Smt Kalawati Vs.
Shri Muthu Swamy and others Mr. N. A.Khan ... for the petitioner Mr. Gopala Binnu Kumar ... for the respondents January 24, 2023 [SR] Item No.2 The subject of matter of challenge in this case is against the order dated 11th January, 2023 passed in Misc.Appeal No.01 of 2023 by the learned District Judge, staying the operation of the order dated 02.01.2023 passed by the learned Trial Court in Title Suit No.01 of 2023 pending before the learned Civil Judge, Junior Division-I at Port Blair. While assailing the impugned order Mr. N.A.Khan, learned advocate appearing for the appellant, submits that the ad interim order of injunction has been obtained from the Trial Court making suppression of facts.
Admittedly, this is a suit for partition, wherein extent of share held by respective cosharers to the suit is not disputed. Mr.
Gopala Binnu Kumar, learned advocate representing the opposite parties, upon adverting to order dated 5th January, 2023, passed by the concerned Tehsildar, Port Blair, submits that the order allowing vacation was passed, consequent upon the consent being expressed by the petitioner to this case.
It is incidentally submitted by Mr. Binnu Kumar that there has already been construction reached upto a considerable extent, since property under possession of the
opposite parties is in dilapidated condition and without undertaking the construction, there cannot be meaningful life enjoyed by the opposite parties in their house. Supporting the order of the Trial Court, Mr. Binnu Kumar, submits that nothing has been suppressed before the Trial Court, while obtaining an ad interim injunction. It is thus contended by Mr. Binnu Kumar that without granting an opportunity of hearing, the stay order ought not to have been granted by the first lower appellate court in Misc.Appeal No.1 of 2023.
Having considered the submissions of both sides, it appears that the stay order granted by the first lower appellate court against an order of injunction being granted by the Trial Court, is under challenge in this case. Mr. N.A.Khan, learned advocate representing the petitioner undertakes to appear in the pending appeal which is scheduled to be fixed tomorrow before the first lower appellate court.
When the appeal is pending before the first lower appellate court, this Court is not inclined to interfere with the order impugned. However, the pending appeal may be expedited.
The first lower appellate court as such is directed to ensure expeditious disposal of the pending appeal providing an opportunity of hearing to either of the parties to this case without granting unnecessary adjournments, unless it is extremely unavoidable, subject to the suitability and convenience of the court below, preferably within ten weeks from the date of communication of this order to the court below.
The construction already reached shall be abide by the decision of the first lower appellate court, to be returned in connection with the Misc. Appeal No.1 of 2023, bearing in mind the need for undertaking construction.
This order is passed without going into the merits of the appeal and without prejudice to the rights and contentions of the parties.
The copy of the application pending in Misc.Appeal No.1 of 2023 and the memorandum of appeal, if not served upon the opposite party in the meantime, may be forthwith served to the learned advocate representing the opposite party before the learned District Judge, Port Blair. All points raised by the parties to this case may be raised before the first lower appellate court, and if raised may be resolved by the first lower appellate court, in accordance with law.
CO/2/2023 stands disposed of.
All parties shall act on the server copy of this order duly downloaded from the official website of this Court, pending application of certified copy upon compliance of formalities.
( Subhasis Dasgupta, J. )