Take notes as you read a judgment using our Virtual Legal Assistant and get email alerts whenever a new judgment matches your query (Query Alert Service). Try out our Premium Member services -- Free for one month.\n\nCalcutta High Court (Appellete Side)\nMinati Roy & Ors vs Sri Ashim Ghosh @ Khokan Ghosh & Ors on 11 February, 2020                                        1\n\n\n11.02.2020\n   srm\n\n                                      C.O. No. 2195 of 2019\n\n                                      Minati Roy & Ors.\n                                             Vs.\n                           Sri Ashim Ghosh @ Khokan Ghosh & Ors.\n\n                      Mr. Saptangshu Basu,\n                      Mr. Subhabrata Das,\n                      Mr. Dip Narayan Mukherjee,\n                      Ms. Mrinalini Mazumdar\n                                                                  ...for the Petitioners.\n\n\n\n                   This is an application filed by the plaintiffs in Title Suit No.31 of\n\n             2004 pending before the learned Civil Judge (Junior Division), Bangaon,\n\n             North 24‐Parganas. The plaintiffs have challenged the order dated April\n\n             10, 2019 passed by the learned Civil Judge (Junior Division), Bangaon,\n\n             North 24‐Parganas. By the said order, the learned Court below rejected\n\n             the application under Section 151 of the Code of Civil Procedure\n\n             observing thus:\n\n                    "Heard. Considered and perused the material documents of the\n                   record. Wherefrom it is clear that this court had passed an order of\n                   temporary injunction dated 10.08.2004 directing the defendants to\n                   remove the obstruction over the public road by demolishing and\n                   removing the pucca wall and restrained the defendants from\n                   creating any obstruction. Thereafter the Hon'ble High Court at\n                   Calcutta in C.O. no.3859 of 2006 passed an order dated 20.08.2007\n                   directing the defendants to remove the obstruction in plot nos.103\n                   and 105. Perusal of record also reveals that the instant suit was\n                   dismissed earlier on 16.11.2013. The plaintiff had almost 6 years\n                   time to bring to the notice of the court that the defendant had not\n                            2\n\n\n      complied with Hon'ble High Court's order and the defendant had\n      not removed the obstruction as directed by the Hon'ble High\n      Court. Moreover, police help cannot be granted on asking. Before\n      granting police help it is to be determined whether there was any\n      violation of injunction order by the parties. In absence of any\n      finding regarding violation of injunction order or violation of the\n      order passed by Hon'ble High Court dated 20.08.2007, police help\n      could not be granted on mere asking. Whether the obstruction is\n      still in existence in plot no.103 and 105 cannot be ascertained. The\n      plaintiff have not applied for any local inspection to show whether\n      any obstruction exists in the public road in plot no.103 and 105\n      which is creating difficulty in their egress and ingress. Thus in\n      absence of any clear picture whether there exist any obstruction in\n      the public road in plot no.103 and 105, I am not inclined to allow\n      the instant petition."\n\n      Mr. Basu, learned Senior Advocate appearing on behalf of the\n\npetitioners, submits that there was an order of this Hon'ble Court by\n\nwhich the opposite parties were directed to remove all obstructions of\n\nplot Nos.103 and 105. The case of the defendants that there was no\n\nobstruction existed on plot Nos.103 and 105 but on plot No.41 the\n\ndefendants had their structures. However, the said issue is pending for\n\nlocal investigation as directed by this Court. Yet, there is a subsisting\n\norder of this Court directing the defendants/opposite party from\n\nremoving any obstruction from plot Nos.103 and 105. After the order of\n\nthis Court, the suit was dismissed at the instance of the defendants, on\n\ntheir application under Order VII Rule 11 of the Code of Civil Procedure.\n\nThereafter, the petitioners preferred an appeal and the appeal was\n                              3\n\n\nallowed and the suit was found to be maintainable. It is the contention of\n\nMr. Basu that during this intervening period, the petitioners could not\n\ntake any steps for the violation of the injunction order of this Court by\n\nwhich the defendants were asked to remove any obstruction on plot\n\nNos.103 and 105.\n\n      It appears that the entire proceeding under Order VII Rule 11 of\n\nthe Code of Civil Procedure and the appeal thereafter were concluded in\n\n2017. Thereafter, the petitioners participated in the suit, issues were\n\nframed, dates were also fixed for framing the additional issues. One year\n\npassed and the suit progressed. Thereafter by an application dated\n\nAugust 6, 2018, the petitioners prayed for police help for implementation\n\nof the order of injunction as directed by this Honʹble High Court on\n\nAugust 20, 2007. The learned Court below recorded progress of the suit\n\nand has come to a finding that 12 years have elapsed since the order of\n\ninjunction   and   filing   of   the   application   for   police   help   for\n\nimplementation of the order of injunction and without ascertaining the\n\nactual position as to whether there was any obstruction on the public\n\nroad in plot Nos.103 and 105, police help could not be granted for\n\nimplementation of the injunction order.\n                                4\n         I agree with the learned Court below to the extent that several\n\nyears have elapsed since the order of injunction was passed. The\n\npetitioners took more than 12 years to bring it to the notice of the Court\n\nthat the said injunction order was not implemented.            Although four\n\nyears may have been consumed in adjudication of the application under\n\nOrder VII Rule 11 and the appeal, yet, pendency of the application under\n\nOrder VII Rule 11 did not preclude the petitioners from bringing to the\n\nnotice of the learned Court that the order of injunction was being\n\nviolated by the defendants. The petitioners also have not taken out an\n\napplication under Order 39 Rule 2A alleging violation.\n\n         It is a settled principle of law that the Court should ensure that its\n\norders are implemented. Police help may be granted when one of the\n\nparties violates the order of injunction. The court allows police help to\n\nundo the wrong done by a party who does not obey the order of\n\ninjunction. Yet, in this case, as the matter involves removal of\n\nencroachment/obstruction on a public road and 12 years have elapsed\n\nsince the order of injunction was passed, in my opinion, without the\n\nlearned court being satisfied that there has been violation, an order for\n\npolice    help could not be         passed by      the   learned   Court   for\n\nimplementation. The learned court has rightly observed so. The nature,\n                              5\n\n\nand local features of the said plots may have all changed in between and\n\nI do not find any reason to interfere with the order impugned.\n\n      However, the petitioners are always at liberty to file an\n\napplication under Order XXXIX Rule 7 of the Code of Civil Procedure for\n\nlocal inspection, inter alia, praying that an inspection may be made and\n\nthe true nature and local features of the plot Nos.103 and 105 may come\n\ninto light. The petitioners are also at liberty to initiate proceedings for\n\nviolation of the injunction order by filing an application under Order 39\n\nRule 2A of the Code of Civil Procedure. If such applications are filed\n\nwithin a period of two weeks from date, the learned Court below will\n\ndispose of the same within a period of four weeks thereafter, upon\n\ngranting opportunity to the defendants to file their written objection.\n\nThe applications will be disposed of on their own merits, upon contested\n\nhearing.\n\n      The revisional application is, thus, dismissed\n\n      There will be, however, no order as to costs.\n\n      Urgent photostat certified copy of this order, if applied for, be\n\ngiven to the parties on priority basis.\n\n\n                                    (Shampa Sarkar, J.)