1S/l.
Bpg.
27.06.
2018 In the High Court at Calcutta Civil Revisional Jurisdiction Appellate Side C.O. No.1569 of 2018 Subodh Kumar Saha alisa Subodh Saha Versus Prithariraj Saha.
Mr. Asis Sanyal, Mr. A. Chakraborty, Mr. Amarendra Chakraborty, Ms. Mun Mun Tewari.
for the petitioner.
Ms. Sharda Parmar, Mr. Gour Baran Sau.
for the opposite party.
By virtue of the impugned order, the trial court, in the same breath, extended an ad interim order of status quo and permitted the defendant/opposite party to construct on the suit property.
It is argued on behalf of the petitioner that such mutually exclusive orders could not be passed in the same breath. Moreover, it is argued that the present revision arises from a partition suit and when the jointness of the suit property itself was in dispute in 2the main suit, no order permitting either of the parties to construct could be passed in this fashion.
Learned counsel appearing for the defendant/opposite party controverts such argument and seeks to impress upon this Court that the impugned order is an appellable one.
Upon perusal of the impugned order, it is evident that although the first portion of the said order granting an extension of status quo is appellable, the petitioner, in favour of whom such status quo order was passed, is obviously not aggrieved by the same and restricts itself to challenging the latter portion of the impugned order, whereby the opposite party was permitted to construct. In view of such submission, the present revision can very well be entertained and is so entertained. The impugned order is palpably without jurisdiction in so far as in the same breath the trial court extended status quo, which extension has not been challenged by the opposite party before any forum, and granted leave to the opposite party to construct on the suit premises.
Accordingly, C.O. No.1569 of 2018 is disposed of on contest, thereby setting aside the portion of the 3impugned order dated June 4, 2018 whereby the opposite party was permitted to construct a roof over the building already constructed by the opposite party over the suit property and directing the Civil Judge (Senior Division) at Malda, District- Malda to dispose of the injunction application itself and to rehear the application of the opposite party for permission to so construct, along with the injunction application. It is made clear that this Court has not gone into the merits of the matter and trial court would be free to adjudicate the injunction application as well as the application for permission to construct independently, without being influenced by any observation made in this order.
There will be no order as to costs.
(Sabyasachi Bhattacharyya, J. )
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