Smti. S. Praveen And ANR v. Smti. Bhagwan Dei

IN THE HIGH COURT AT CALCUTTA

[CIRCUIT BENCH AT PORT BLAIR] *** CO/59/2024 Smt. S.Praveen and another Vs Smt. Bhagwan Dei Mr. Mohammed Sharukh ... for the petitioners/defendants Mr. G.Ravi Shanker ... for the respondent/plaintiff January 9, 2025 [AKB] Item Nos.5 Affidavit-of-service filed be kept with the record. Vakalatnama has been filed by the learned counsel representing the opposite party, let the vakalatnama be kept with the record.

This application for revision has been preferred by the petitioners/defendants being aggrieved by and dissatisfied with the order dated 18.11.2024 passed by the learned Joint Civil Judge Senior Division, Port Blair in Misc. Judicial case no 23 of 2024 under Article 227 of the Constitution of India. Through the impugned order the learned judge has allowed the petition filed on behalf of the plaintiff under Section 151 of the Code of Civil Procedure by passing the following :- "that the prayer for ad-interim injunction stands allowed. Plaintiff and defendant are hereby directed not the change the nature and character of suit land measuring an area of 500 Sq. meter. Till 12.03.2024.

The plaintiff are directed to file requisites at once and also to comply the provision of Order 39 Rules 3(a) and (b) of C.P.Code. To 12.03.2024 for S/R of notice and W/o against the injunction application."

The learned counsel representing the petitioners submits that the opposite party/plaintiff had instituted a suit praying for declaration, recovery of khas possession and injunction against the petitioners/defendants. In the said title suit being No. TS 206/2024 an application seeking ad-interim temporary injunction was also filed. The petitioners/defendants entered appearance and filed written statement along with written objection in respect of the petition praying for injunction. After

contested hearing the learned Trial Court had been pleased to pass temporary order of injunction which was in force till the disposal of the suit.

He further submits that because of non representation of the plaintiff the learned Trial Court had passed an order seeking show cause as to why the said suit shall not be dismissed for default. He further submits that ultimately on 08.11.2024 the said title suit has been dismissed on the ground of default. The learned counsel further submits that an application under Order IX Rule 9 of the Code of Civil Procedure seeking restoration of the said title suit along with an application under Section 151 of the Code of Civil Procedure have been filed on behalf of the plaintiff, but copy of both the applications have not been served till date upon the respondent.

The learned counsel further submits that without hearing the learned counsel representing the petitioners/defendants the learned Trial Judge in absence of the learned counsel representing the defendants restored the order of temporary injunction through the impugned order without restoring the original suit i.e. Title Suit No. 206 of 2024. The learned counsel further submits that under Order IX Rule 9 Clause 2 of the Code of Civil Procedure the opposite party i.e.

the petitioners/defendants ought to have been served with the notice of the applications prior to taking up the hearing, but in the instant case an order of restoration of temporary injunction recalling the order of vacating has been passed without the application being served and in absence of the learned Counsel representing the defendants. This is not in accordance with law, and he prays for allowing the application praying for revision. In support of his contention the learned counsel has referred to a judgement of the Hon'ble Apex Court passed in Appeal (Civil) 2634 of 2004 and has also referred to a judgement passed by Hon'ble Single Judge of our Court published in LAWS (CAL) 2015 1 78. Banking upon the aforesaid submission the learned counsel has prayed for quashing the impugned order.

Per contra, the learned counsel representing the opposite party/plaintiff submits that the defendants admits the fact that the original suit i.e. TS 206 of 2024 had been dismissed on 08.11.2024 as an affect of which the order of temporary injunction was also vacated. He further submits that the defendants taking advantage of such situation had started further construction of their house, as such the opposite party/plaintiff had no other alternative but to seek restoration of the suit and had filed an application under Order IX Rule 9 of the Code of Civil Procedure and in respect of restoration of the temporary injunction also filed an application under Section 151

of the Code of Civil Procedure. He further submits that because of urgency the application under Section 151 of the Code of Civil Procedure was allowed and the order of injunction was restored through the impugned order. The learned counsel has relied upon a judgement passed by Hon'ble Single Judge of the Madras High Court reported in AIR 1986 MAD 284. Banking upon the aforesaid submission and the citation referred the learned counsel submits that the impugned order is in accordance with law and requires no interference.

Heard the learned counsels representing the petitioners and the opposite party. From the submission of the learned counsels and on perusal of the impugned order and the application for revision it transpires that a title suit had been filed being TS No. 206/2024 by the plaintiff seeking declaration of injunction against the petitioners/defendants. In the said title suit after contested hearing ad-interim temporary injunction was made absolute till disposal of the suit. Ultimately because of nonrepresentation of the plaintiff the title suit was dismissed on 08.11.2024 on the ground of default and in consequence of which the order of injunction was also vacated.

It also transpires that thereafter an application under Order IX Rule 9 of the Code of Civil Procedure, 1908 seeking restoration of the said title suit along with an application under Section 151 of the said code seeking restoration of the order of injunction has been filed and ultimately through the impugned order the application under Section 151 of the said Code has been allowed thereby the order of vacating injunction in the title suit has been recalled but the application under Order IX Rule 9 of the said code has not yet been allowed. As such without restoring the title suit to its original file and number the ad-interim order of injunction has been restored. So the order of injunction which was vacated has been restored without restoring the original Title Suit.

In this context this Court refers to Order IX Rule 9 Sub Rule 2 of the Code of Civil Procedure which states as follows: "(2) No order shall be made under this rule unless notice of the application has been served on the opposite party." From the aforementioned provision of law it is clear that an application seeking restoration is required to be served upon the opposite party i.e. herein the defendants, but the same has not taken place. Neither the application under Order IX Rule 9 nor the application under Section 151 of the said Code has been served upon the petitioners/defendants till date.

court intends then there shall have to be an express order as regards to the restoration of the interim orders. It is worth mentioning that without restoration of the original suit, herein the title suit, the interlocutory order as in this lis the interim order of injunction, ought not to have been restored. As such this court feels the interim order requires interference and the said order is set aside. Thus the judgement cited on behalf of the opposite party is not applicable in this instant case as in this lis Order IX Rule 9

(2) has not been complied.

The learned Trial Court is requested to hear the application under Order IX Rule 9 of the Code of Civil Procedure in presence of the defendants after a copy of the same been served upon the defendants and they be given opportunity to file objection to the same and only after restoration of the Title Suit if at all then only the application under Section 151 be taken up in presence of the opposite party i.e. defendants. This revisional application is allowed.

(Supratim Bhattacharya, J.)