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Sm. Mayarani Dutta Vs. Bhupal Banerjee - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberC.R. No. 3125 of 1976
Judge
Reported inAIR1981Cal264,85CWN659
ActsCode of Civil Procedure (CPC) , 1908 - Section 115 - Order 39, Rule 1 - Order 43, Rule 1
AppellantSm. Mayarani Dutta
RespondentBhupal Banerjee
Appellant AdvocateSyamaprosanna Roy Chowdhury, Adv.
Respondent AdvocateBidyut Kumar Banerjee, Adv.
Cases ReferredMadhu Mian v. Rajaram Baroi
Excerpt:
- .....of the district judge, burdwan. in that court also an application was filed to issue an order of temporary injunction to restrain the respondent from constructing any soak pit or making any construction or from changing the nature of the disputed land. no ad interim order was granted. against that order the present revisional application has been filed.2. a preliminary objection has been raised on the basis of the well-known decision of sarttju prosad v. ganga prosad in : air1951cal446 . the benph of our court has stated that where a prayer for temporary injunction is made, each order thereon is a final one and consequently an appeal lies.3. the learned advocate appearing on behalf of the petitioner has referred to the case of kalahasti v. p. munuswamy in : air1975mad3 to show that in.....
Judgment:
ORDER

B.N. Maitra, J.

1. The plaintiff is the petitioner. She filed the present suit and asked for a temporary injunction to restrain the defendant-opposite party from making any construction on the disputed land or constructing any soak pit and changing the nature of the disputed land. The prayer was refused. Against that order, Misc. Appeal No. 151 of 1976 was filed in the Court of the District Judge, Burdwan. In that Court also an application was filed to issue an order of temporary injunction to restrain the respondent from constructing any soak pit or making any construction or from changing the nature of the disputed land. No ad interim order was granted. Against that order the present revisional application has been filed.

2. A preliminary objection has been raised on the basis of the well-known decision of Sarttju Prosad v. Ganga Prosad in : AIR1951Cal446 . The Benph of our Court has stated that where a prayer for temporary injunction is made, each order thereon is a final one and consequently an appeal lies.

3. The learned Advocate appearing on behalf of the petitioner has referred to the case of Kalahasti v. P. Munuswamy in : AIR1975Mad3 to show that in view of the provisions of Section 104(2) of the Code of Civil Procedure read with the provisions of Order 43, Rule 1 of the Code, the right of an appeal enumerated in Order 43, Rule 1 is subject to the stipulation contained in Section 104(2). Consequently, a revision and not an appeal lies. To support that contention reference has also been, made to the case of S.R. Chatterjee v. Hindusthan Steel Ltd. in (1969) 73 Cal WN 228 to show that an interim injunction granted by the lower appellate Court is an order passed in appeal and therefore is not appealable under Section 104(2) of the Code of Civil Procedure.

4. The petitioner's contention cannot be accepted. The learned Advocate appearing on his behalf tried to distinguish the aforesaid Bench decision of pur Court in Saraju Prosad y. Ganga Prosad : AIR1951Cal446 (supra), which is. still holding the field in this respect. A single Bench decision of S. R. Chatlerjee v. Hindusthan Steel Ltd., ((1969) 73 Cal WN 228) (supra) to the contrary cannot prevail over the Bench decision of our Court. If the prayer is made either before the trial Court or before the appellate Court for an order of temporary injunction and if the prayer is refused, surely that is a final order and the order is appealable and not revisable. The learned Advocate appearing on behalf of the petitioner tried to emphasize the fact that no original petition for temporary injunction was made by the petitioner-appellant before the District Judge, Burdwan. This contention cannot be accepted because it was submitted without going through the records. Before the trial Court an order for temporary injunction was asked for and the same was turned down. An appeal was preferred. In that Court an original application supported by an affidavit was put in and a prayer for temporary injunction made. That prayer too was refused. So, in view of the aforesaid Bench decision, the order is appealable and not revisable.

5. A question arises whether the revisional application should stand rejected on that ground alone. It will not be proper to do so because of the Bench decision of Madhu Mian v. Rajaram Baroi reported in AIR 1943 Cal 177 decided by B. K. Mukherjee and Pal, JJ. It has been stated in that case that where revisional application is found incompetent because the order is appealable, the applicant may be allowed to convert his revisional application into a Memorandum of Appeal when the requisite court-fees have been paid. Such prayer for conversion has been made in the alternative for the petitioner. It is, therefore, held that the present revisional application may be treated as a Memorandum of Appeal and this may be registered as an appeal from an appealable order. If the proper court-fees are paid, the matter may be placed before the appropriate Court for admission.

6. The petitioner's alternative prayer for conversion is disposed of accordingly. The petitioner will pay costs of this hearing, which is being assessed at 3 gold mohurs.


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