Shri.Subash Dey v. Shri.Apurba Biswas And ANR
IN THE HIGH COURT AT CALCUTTA
[ CIRCUIT BENCH AT PORT BLAIR ] *** CO/70/2025 Shri Subash Dey Vs Shri Apurba Biswas and Another Mr. N. A. Khan ... for the petitioner December 09, 2025 [SR] Item No.11 This application under Article 227 of the Constitution of India is at the instance of the plaintiff and is directed against the order dated November 03, 2025 passed by the learned District Judge, Port Blair in Misc. Appeal No. 37 of 2025. The petitioner filed a suit for cancellation of the sale deed and for cancellation of the power of attorney executed in favour of the opposite party No. 1. In connection with the said suit, the petitioner prayed for an order of temporary injunction by filing an application. Immediately after filing the said suit, the petitioner moved the prayer for ad-interim injunction which was refused by the learned Trial Judge by the order dated October 22, 2025.
Being aggrieved by such order, the petitioner preferred the miscellaneous appeal being No. 37 of 2025 and the learned District Judge, by the order impugned, refused to pass any adinterim order of injunction. A Coordinate Bench by an order dated November 25, 2025 passed an order directing the parties to maintain statusquo as regards ownership and possession. The Coordinate Bench directed the petitioner to serve a copy of this application upon the opposite parties.
Mr. N. A. Khan, learned Advocate appearing for the petitioner submits that the registered envelop addressed to the opposite party No. 1 & 2 returned with the endorsement "insufficient address" and "addressee could not be found" respectively.
Mr. Khan submits that the petitioner is in possession of the suit property and the learned District Judge acted illegally and with material irregularity by refusing to pass an ad interim injunction protecting the possession of the petitioner. The case made out by the petitioner in the plaint is that the opposite party no.1 approached the petitioner for development of the suit land and accordingly a power of attorney dated 04.12.2024 was executed which was duly registered. Petitioner alleges that the opposite party no.1 misused the Power of Attorney and sold the land to the opposite party no.2 for a total consideration of Rs.70,00,000/- whereas the valuation assessed by the revenue department is Rs.90,00,000/-. Petitioner further alleges that on the basis of the power of attorney the opposite party no.1 sold the property to the opposite party no.2 and received the consideration money of Rs.70,00,000/- but never handed over the same to the petitioner.
After going through the averments made in the plaint, it prima facie appears to this court that the dispute is whether the suit land was transferred by the power of attorney holder at a price below the market price and also whether the power of attorney holder did or did not pay the consideration money to
the petitioner. A decision on such issues would require a trial on evidence.
Petitioner has prayed for cancellation of the sale deed. A registered sale deed shall remain valid till the same is cancelled or declared to be void by the court of competent jurisdiction. From the sale deed annexed to the civil revision application, it prima facie appears to this Court that the suit land was transferred in favour of the opposite party no.2 and the right to hold, possess, occupy, use , enjoy or develop the suit land was transferred in favour of the opposite party no.2. This Court further finds that the petitioner has alleged in the plaint that the opposite party No. 1 has misused the power of attorney behind the back of the petitioner and sold the land to the opposite party No. 2 on a total consideration of Rs. 70 Lakhs whereas the valuation assessed by the Revenue Department is Rs.
90 Lakhs, and, therefore, less stamp duty and registration charges were paid. After going through the estamp assessment, this Court is of the prima facie view that the stamp and registration fees was collected on the basis of assessed value of the property of Rs. 90 Lakhs and not Rs. 70 Lakhs i.e the consideration money as stated in the deed. This Court is, therefore, of the view that before passing any interim order the other side ought to have been afforded an opportunity of hearing. This Court accordingly holds that the learned Trial Judge as well as the learned Judge of the Appellate Court were right in not passing any ad interim order of injunction.
Since the application for temporary injunction is pending before the learned Trial Judge, this Court feels that the interest of justice would be sub-served if the learned Trial Judge is requested to dispose of the injunction application expeditiously. Accordingly, CO/70/2025 stands disposed of without interfering with the orders impugned but by requesting the learned Trial Judge to dispose of the application for temporary injunction as expeditiously as possible without granting any unnecessary adjournment to either of the parties after the application for temporary injunction is otherwise made ready for hearing.
In view of the order passed by this Court nothing survives to be decided in the miscellaneous appeal.
The learned Advocate appearing for the petitioner submits that the petitioner shall take steps for withdrawal of the miscellaneous appeal which is presently pending before the learned District Judge, Port Blair. Such submission is placed on record.
It is, therefore, made clear that the observations made hereinafter are only for the purpose of supporting this order and the same shall not prejudice the parties before the learned Trial Judge.
Parties to act on the server copy of this order downloaded from the official website of this Court.
( Hiranmay Bhattacharyya, J. )