P.Punithavathi v. Harprith Kaur

IN THE HIG1H COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] ...

CO/58/2023 Smt. P. Punithavathi ...Petitioner/Plaintiff Vs.

Ms. Harprith Kaur ...Opposite Party/Defendant Mrs. Anjili Nag ...for the Petitioner/Plaintiff Mr. K.M.B. Jayapal ...for the Opposite Party/Defendant (Through Virtual Mode) November 23, 2023 [ M.A.Mobin] Item No.6 1.

This is an application under Article 227 of the Constitution of India challenging the order dated 18th October, 2023 and 15th November, 2023 passed by the learned District Judge, A & N Islands at Port Blair in Misc. Appeal No.16 of 2023. Since the Opposite Party is represented by Mr. Jayapal who is appearing in the Court virtually, formal notice upon the Opposite Party is dispensed with.

2.

The fact of the case in short is that:- The Opposite Party Ms. Harprith Kaur filed a suit before the learned Civil Judge(Senior Division) being Other Suit No.61 of 2023 for declaration and injunction. Learned Trial Court after hearing both the parties was pleased to reject the prayer for temporary injunction. Aggrieved by the order passed by learned Trial Court the plaintiff preferred an appeal before the

learned District Judge registered as Misc. Appeal No.16 of 2023 and the defendant landlady filed application under Section 148-A of the Code of Civil Procedure.

From the attending facts of the case it is also admitted that despite the Caveat in place, the concerned Clerk did not make any endorsement, notifying the Caveat, when the plaintiff/appellant moved the petition for temporary injunction ex parte before the learned District Judge.

Learned District Judge in absence of any note regarding Caveat was pleased to pass an interim order directing the parties to maintain status quo. Subsequently, on 15th November, 2023 when the matter was brought to the notice of learned District Judge, learned District Judge instead of recalling the ex parte order passed in the appeal fixed 23rd November, 2023 for hearing of the appeal. It is rightly submitted by Mrs. Nag that when this fact was brought to the notice of learned District Judge, the interim order ought to have been recalled.

Refuting such contention of Mrs. Nag, Mr. Jayapal, learned Counsel for the Opposite Party submits that the interim order passed without notifying the Caveator is but an irregularity. The Opposite Party is a tenant and is in possession of the suit property and such possession must be protected till the time

she is evicted, following due process of law. It is further submitted that the Opposite Party is ready to appear before the learned District Judge for hearing of the appeal itself on 28.11.2023 till the time some kind of protection may be extended to the Opposite Party from being unlawfully evicted.

3.

Joining the issue Mrs. Nag, learned Advocate, submits that the Opposite Party is neither the tenant under the petitioner nor she is in possession of the suit property. However, Mrs. Nag submits that till Tuesday i.e. 28th November, 2023 the petitioner shall not deal with the property in any manner.

4.

In view of rival contention, I am of the opinion that irrespective of the factum of possession or claim and counter-claim over the possession, the impugned order dated 18th October, 2023 and 15th November, 2023 should not be allowed to remain in force. More so when it is admittedly a lapse on the part of the Court party should not be made to suffer.

5.

Learned District Judge is requested to dispose of the appeal itself on Tuesday i.e. 28.11.2023 after hearing learned Counsel for the parties. Till then the petitioner shall not make any attempt to disturb the possession of the Opposite Party if she is actually occupying the premises-inquestion which is disputed by the petitioner. Parties shall maintain status quo as on 18th October, 2023.

6.

However, I made it clear that this order shall not be taken into consideration by learned District Judge, A & N Islands while considering the Misc. appeal. The Misc. appeal shall be disposed of on its own merit without being influenced by this interim protection which will remain in force till Tuesday i.e. 28.11.2023.

7.

The learned District Judge shall not grant any adjournment to either of the parties on 28th November, 2023.

8.

The Revisional Application is thus disposed of. (Siddhartha Roy Chowdhury, J.)