Calcutta High Court (Appellete Side)
Sri Ashok Kumar Mondal & Ors vs Sri Kanika Das Burman @ on 25 July, 2025
25.07.2025
16
Ct.No.7
as
CO 3512 of 2024
M/s. A.P.J. Group, a partnership firm,
represented by its partners, viz.,
Sri Ashok Kumar Mondal & Ors.
Vs.
Sri Kanika Das Burman @
Kanika Das & Ors.
Mr. Tanmoy Mukherjee,
Mr. Sounak Bhattacharya,
Mr. Sounak Mondal,
Mr. Rudranil Das,
Mr. Anirban Saha Roy.
.....for the petitioners
Mr. Sukanta Chakraborty,
Mr. Anindya Halder.
..... for the Opp. Party No.1.
1.
The present application has been filed by the
defendants/appellants/petitioners (hereinafter referred to as
“the petitioners”) under Article 227 of the Constitution of
India, challenging the legality and propriety of the order
dated 3rd September, 2025, passed by the learned
Additional District Judge, Fast Track Court, Serampore,
Hooghly, in Misc. Appeal No. 52 of 2024. By the said order,
the learned appellate court refused to entertain the
petitioners’ prayer for an ex parte stay of the interim order
dated 23.07.2024 passed by the learned Civil Judge (Junior
Division), 1st Court, in Title Suit No. 564 of 2023. The said
interim order directed the parties to maintain status quo
with respect to the nature, character, and possession of the
suit property until the disposal of the suit.
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2. Succinctly stated, the facts leading to the filing of this
revisional application are that the plaintiff, Smt. Kanika Das
Burman @ Kanika Das, instituted a suit for declaration and
other consequential reliefs before the Court of the Civil
Judge (Junior Division), 1st Court, Serampore, Hooghly,
which was registered as Title Suit No. 564 of 2023. In the
plaint, it has been, inter alia, alleged that the defendants
undertook the construction of a multi-storied building on the
land adjoining the plaintiff’s property in brazen violation of
the applicable Building Rules and in clear deviation from the
building plan sanctioned by the Municipality.
3. Along with the plaint, the plaintiff filed an application
under Order XXXIX Rules 1 and 2 read with Section 151 of
the Code of Civil Procedure, seeking an interim order. The
said application was disposed of by the learned Trial Court
upon contested hearing, by an order dated 23.07.2024. As
noted earlier, by the said interim order, the learned Trial
Court directed the parties to the suit to maintain status quo
with respect to the nature, character, and possession of the
suit property as it existed on that date, until the disposal of
the suit.
4. The defendant Nos. 1, 2, and 3(c) preferred Misc.
Appeal No. 52 of 2024, challenging the interim order passed
by the learned Trial Court. Along with the memorandum of
appeal, the appellants also filed an application seeking an
ad-interim order of stay of the said interim order. However,
as noted earlier, the learned Appellate Court declined to
grant the prayer for ex parte ad-interim stay of the interim
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order passed by the Trial Court. Aggrieved by the order of
the Appellate Court dated 3rd September, 2024, the present
revisional application has been filed.
5. Mr. Bhattacharya, learned Advocate appearing on behalf
of the petitioners, submits that while considering a prayer
for ad-interim injunction, the Court, in addition to other
established factors, ought also to examine the
maintainability of the suit. In support of this contention, he
draws the Court’s attention to the prayer portion of the
plaint as well as to certain specific paragraphs therein, and
submits that the suit is, in essence, directed against the
alleged action and/or inaction of the Municipal Authority.
6. Inviting my attention to the provisions of Section 407 of
the West Bengal Municipal Act, 1993 (hereinafter referred to
as “the 1993 Act”), Mr. Bhattacharya submits that no suit can
be instituted against a Municipality without serving a written
notice upon the Municipal authority at least one month prior
to the institution of such suit. He contends that in the
present case, no such notice, either under Section 407 of the
1993 Act or under Section 80 of the Code of Civil Procedure,
1908 (for short, CPC), has been served upon the concerned
Municipal authority. According to Mr. Bhattacharya, the
failure to comply with this mandatory requirement renders
the suit not maintainable in law.
7. He submits that the learned Trial Court failed to take
cognizance of the plaintiff’s omission to serve the mandatory
notice upon the Municipality, and proceeded to pass the
interim order in a mechanical manner. It is further
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contended that the learned Appellate Court also overlooked
this vital issue. Mr. Bhattacharya argues that the interim
order passed by the learned Trial Court has the potential to
cause irreparable loss and prejudice to the petitioners, and in
fact, has already resulted in serious consequences for them.
In such circumstances, the learned Appellate Court ought to
have stayed the operation of the said interim order.
8. Mr. Chakraborty, learned Advocate appearing on behalf
of the plaintiff/opposite party no. 1, submits that the
application under Order XXXIX Rules 1 and 2 of the Code of
Civil Procedure was disposed of on contest, after hearing the
representatives of the defendants as well as the Municipal
authorities. He draws the Court’s attention to the written
objection filed by the defendants/petitioners herein, and
contends that the issue of maintainability on the ground of
non-service of notice upon the Municipality was never raised
by the defendants at any stage, either before the learned
Trial Court or before the learned Appellate Court.
9. He submits that in the present suit, the plaintiff has
prayed for a decree of declaration against the defendants as
private individuals, and that the suit, in substance, is not
directed against the Municipality. He further contends that
the provisions of Section 407 of the West Bengal Municipal
Act, 1993 do not oust the jurisdiction of the Civil Court to
entertain a suit for declaration or to pass a decree thereof, as
there is no express provision to that effect in the statute.
10. Mr. Chakraborty submits that the Municipality has
found merit in the plaintiff’s contentions and has concluded
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that the construction in question was carried out in blatant
violation of the applicable building rules and in deviation
from the sanctioned building plan. Accordingly, Mr.
Chakraborty submits that the Municipality has issued an
appropriate notice to the defendants.
11. He asserts that an application for ad-interim
injunction seeking to stay the operation of an interim order
passed by a learned Trial Court after a contested hearing is
not maintainable. He draws my attention to the application
filed by the defendants/applicants herein under Order 41
Rule 5 of the Code of Civil Procedure and contends that the
said application fails to disclose any grounds justifying the
grant of the ex parte ad-interim stay of the interim order as
prayed for.
12. In reply, Mr. Bhattacharya draws my attention to the
prayer portion and certain paragraphs of the plaint, arguing
that the plaintiff has sought a decree of declaration on the
ground of alleged inaction by the Municipal authority in
taking appropriate measures regarding the construction of
the building. Additionally, he submits that the plaintiff has
prayed for the cancellation of the sanctioned building plan.
Therefore, he contends that it cannot be said that the suit has
been instituted solely against certain private individuals.
13. Heard the learned Advocates appearing for the
respective parties and perused the materials on record.
14. Undoubtedly, the interim order was passed by the
learned Trial Court on contest and after affording an
opportunity of hearing to all parties, including the Municipal
6
authority. The Municipal authority did not raise any
objection or claim that it had suffered prejudice or failed to
prepare itself to defend the suit effectively on the ground that
no notice had been served upon it prior to the institution of
the suit, whether under Section 407 of the West Bengal
Municipal Act, 1993, or Section 80 of the Code of Civil
Procedure.
15. In common parlance and understanding, it may be
stated that if such notice is not served, it is the Municipality
that stands to suffer the most, as it would be deprived of a
sufficient opportunity to prepare an effective defense in the
proceeding.
16. In the present case, it prima facie appears that the suit
was instituted against private individuals and not against the
Municipality, although the plaint contains allegations of
inaction on the part of the Municipal authority in addressing
the issue and in taking appropriate action against the alleged
illegal construction, despite having been approached in that
regard. Furthermore, the interim relief was specifically
sought against the private individuals.
17. Needless to state, while deciding an application for an
interim order, the Court is required to consider the three
well-established factors: (i) whether the applicants have
made out a strong prima facie case in their favour, (ii)
whether the balance of convenience lies in their favour, and
(iii) whether they are likely to suffer irreparable loss and
prejudice if the prayer for interim relief is not granted.
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Undoubtedly, the Court shall also consider whether suit is
maintainable.
18. To determine whether the applicants have made out a
prima facie case, the Court primarily examines whether they
have raised a substantial question warranting adjudication at
trial. In considering the other two factors, namely balance of
convenience and irreparable injury, the Court must assess
whether, in the event the plaintiff’s prayer for interim relief
is refused but he ultimately succeeds at trial, he can be
adequately compensated. Similarly, if interim relief is
granted but the defendants ultimately succeed in appeal, the
Court must examine whether the injury suffered by the
defendants due to the interim order can be adequately
remedied through compensation.
19. In the present case, upon consideration of the facts and
circumstances, it prima facie appears that if the defendants
are permitted to alter the nature and character of the suit
property, and the plaintiffs subsequently succeed in the
appeal, such alteration may lead to further complications
and multiplicity of proceedings. This, in turn, may result in
irreparable loss to the plaintiffs. In a case where it has been
alleged that the construction of a multi-storied building is
being carried out in gross violation of the Building Rules and
in deviation from the sanctioned building plan, it would not
be appropriate to allow further construction to continue,
particularly when the Municipality has not categorically
refuted the plaintiff’s contentions.
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20. Needless to observe, the primary object of granting
a temporary injunction is to preserve the suit property in the
same condition as it existed at the time of institution of the
suit, until the rights and liabilities of the parties are finally
adjudicated by the Court. In my view, such an interim order,
directing the parties to preserve the suit property, ought not
to have been interfered with by the learned Appellate Court,
particularly in light of the facts and circumstances of the
present case.
21. Therefore, I am of the considered view that the learned
Appellate Court did not commit any error or misdirect itself
in refusing the prayer for an ad-interim stay of the injunction
granted by the learned Trial Court.
22. Accordingly, the revisional application is
dismissed, however, without any order as to costs.
23. The learned Appellate Court is directed to dispose
of the appeal as expeditiously as possible, preferably within
six months from the date of receipt of a copy of this order,
without granting unnecessary adjournments to either party.
24. It is imperative to clarify that the observations
made in this order are solely for the purpose of disposing of
the present application. The learned Appellate Court shall
dispose of the appeal independently and shall not be
influenced by any observations made herein.
(Partha Sarathi Chatterjee, J.)
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