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IN THE HIGH COURT AT CALCUTTA

CIVIL REVISIONAL JURISDICTION

APPELLATE SIDE

Present:-

HON’BLE JUSTICE CHAITALI CHATTERJEE DAS.

CO 1616 OF 2022

WITH

CAN 5 OF 2025

DR. RAJASHREE RAY BANDYOPADHYAY

VS

DR. PARTHA SARATHI ROY

WITH

CO 1920 OF 2022

DR. PARTHA SARATHI ROY

VS

DR. RAJASHREE RAY BANDYOPADHYAY

WITH

CO 1921 OF 2022

DR. PARTHA SARATHI ROY

VS

DR. RAJASHREE RAY BANDYOPADHYAY

WITH

CO 2316 OF 2022

DR. RAJASHREE RAY BANDYOPADHYAY

VS

DR. PARTHA SARATHI ROY

For the Petitioner/

Dr. Rajashree Ray

Bandyopadhyay

in CO 1616 of 2022

and 2316 of 2022 and : Mr. Sayantan Bose, Adv.

opposite party in Mr. Sarbajit Mukherjee, Adv.

CO 1920 of 2022 Ms. Priyanka Gope, Adv.

and CO 1921 of 2022

For the petitioner/

Dr. Partha Sarathi Ray in

CO 1920 of 2022 : Mr. Saurabh Guhathakurata, Adv.

And CO 1921 of 2022 Mr. Abhratanu Sarkar, Adv.

For the opposite party

In CO 1616 of 2022

And CO 2316 of 2022

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Reserved On : 16.06.2026

Judgement On : 24.07.2026

Uploaded On : 24.07.2026

CHAITALI CHATTERJEE DAS, J. : -

1. Four revisional applications under article 227 of the Constitution of India filed

by the petitioner, Dr. Partha Sarathti Roy and Dr. Rajashree Roy

Bandopadhyay against a composite order dated 1

st

June 2022, passed by the

learned Civil Judge (Senior Division), 2

nd

Court at Barasat in Title suit no.

669 of 2017 whereby all the applications filed, out which two applications

under section 151 by the original plaintiff mother as well as by present

petitioner for restoration of possession, one application under order 39 Rule 7

for appointment of Advocate Commissioner and an application for amendment

of plaint under Order VI Rule 17 of CPC filed by the brother Dr. Partha

Sarathi Roy were disposed of. On the joint prayer made by the parties all the

revisional applications are heard analogously .

2. The fact of the case in a nutshell is that a long-term lease in respect of the suit

premises was granted on 26 December 1975 jointly in favour of late Dr.

Dwijendra Kumar Roy and late Dr. Urmila Roy and they constructed a building

over the same who are the parents of the present parties to the proceeding. Dr.

Dwijendra Kumar Roy died on 11

th

January, 2017 leaving behind him his wife,

Dr Urmila Roy since deceased and present parties as his legal heirs. Prior to

his death Dr. Roy executed a will on 7 September 2016, bequeathing his 50%

share in the said property in favour of his daughter and a probate proceeding

in respect of the same is pending presently being contested by the brother. Dr.

Urmila Roy also on the same date, executed a will bequeathing her 50% share

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in the property in favour of the respondent/daughter. On 3rd November 2016

Dr. Urmila Ray revoked earlier will dated 7th September, 2016 and executed a

fresh will on 27

th

January, 2017 and registered a codicil of the said Will

registered on 3rd November 2016 whereby she bequeathed her 50% share in

the property in favour of her son. According to the plaintiff /mother during

April 2017, the daughter with her family members shifted from UK and came

to the house of the mother at 19 Creek Row in the middle of 2014 and started

living there with her family and after death of her father left the house which

the plaintiff mother came to learn that she in fact shifted to their Salt Lake

property behind her back and entered into the second floor which were being

used by the plaintiff/mother and used to keep under lock and key. The

plaintiff further came to learn that the daughter has inducted one Sunny

Sharma beyond her knowledge in respect of the first floor .On 26.4.2017 when

the plaintiff went to visit the suit property she was denied entry by the

domestic help of her daughter .Over the incident she also lodged one GD

before the Bidhannagar police station and further instituted a civil suit in the

year 2017 against the opposite party/daughter in which the present petitioner

was impleaded as proforma defendant number 2. The suit was contested by

the daughter by filing written statement denying the allegations levelled

against her by her mother .

3. By virtue of an order dated 7

th

August 2017, an ad- interim injunction order

was passed by the Learned Trial Court in favour of the mother on an

application filed by the mother under order 39 Rule 1 & 2 of CPC . The

opposite party /daughter also filed an application under order 39 Rule 1 and 2

against the mother on 15.3.2018 and the Court passed an order of status-

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quo with regard to the nature character and possession of the suit premises.

Since the said interim order as granted in favour of the plaintiff /mother was

alleged to be violated she further filed an application under Order 39 Rule 2A

of the Civil Procedure Code. An application under Section 151 of the Code of

Civil Procedure was filed on 29th March, 2018 in the suit by the daughter Dr.

Rajyashree Ray Bandopadhyay and on 28th June, 2018 such application was

disposed of with a direction to the IC, Bidhannagar PS to remove the padlocks

of certain rooms of the suit premises and to handover certain movable

properties to the respondent. The respondent was also permitted to use,

occupy and reside in certain portions of the same premises and rest of the

portions were directed to be kept under possession of late Dr. Urmila Ray and

her son.

4. Dr. Urmila Ray filed a revisional application being C.O 2204 of 2018

challenging the said order and by virtue of an order dated 27

th

July, 2018

passed by the Learned Co-ordinate Bench it was set aside. It is alleged by the

petitioner Dr. Partha Sarathi Roy that on 10 July 2018, the respondent

through police help with her men and agent ransacked the whole building in

the suit premises, looted valuables lying, and tortured her mother who was

then aged about 84 years and was very ill. However, the police put new

padlocks in certain rooms under occupation and possession of the petitioner

and his mother. On 2

nd

August, 2018 further application was filed with a

prayer for necessary direction to the IC Bidhannagar PS to restore possession

of rooms and articles in terms of the order dated 28th June, 2018. On 6

th

October 2018, the original plaintiff/ mother, Dr Urmila Ray expired leaving

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behind her last Will and testament dated 22nd May, 2017, which is a

holographic Bengali Will and duly registered.

5. On 18 April 2019, when the present petitioner returned to India, his entry was

refused to the premises by the respondent and her men and servants.

Subsequently on 22

nd

July 2019, also he tried to enter into the suit premise

but he was severely assaulted and police refused to accept the complaint of the

petitioner. After demise of the mother, both the petitioner as well as the

respondent filed respective application for substitution in the title suit and by

an order dated 6

th

March, 2020 the application of the respondent for

substitution in place of deceased plaintiff was rejected and the application of

the petitioner was allowed. On 16

th

December, 2020 the plaintiff filed an

application under Order 6, Rule 17 of the Code of Civil Procedure for

amendment of the plaint and both the application for amendment and the

application for restoration of possession filed by the original plaintiff were fixed

for hearing on 8

th

February 2021. All the applications were heard together and

by the order impugned allowed the application for amendment of plaint and

application for appointment of Advocate commissioner and rejected the

remaining two applications under 151 filed by the original plaintiff and by the

substituted plaintiff for restoration of possession .The said order has given rise

to 4 revisional applications which are as follows; CO 1616 OF 2022, CO 2316

OF 2022, CO 1920 OF 2022 and CO 1921 OF 2022. This Court also after

hearing the matter analogously passed the order in the following manner.

C.O 1616 OF 2022

6. The challenge in the revisional application filed against the portion of the order

no. 5 dated June, 2022 passed by the learned 2

nd

Civil Judge (Senior Division)

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Barasat in Title Suit no. 669 of 2017 to the extent that the said order allowed

an application filed by the substituted plaintiff for local inspection under order

XXXIX Rule 7 of the Code of Civil Procedure, 1908. It is the contention of the

learned advocate representing the present petitioner/defendant of the suit that

in the schedule to the application for local inspection, the substituted plaintiff

being the opposite party herein, Dr Partha Sarathi Roy sought for the

commissioner to be appointed for noting of all points which were allowed by

the learned court and not sustainable on the ground as follows:-

I) The original plaintiff on the date of filing of the suit was not in actual

physical possession of any part or portion of the suit property and the

statement was made in various paragraphs of the plaint. She complained of

not getting access to the suit property on 26

th

April 2017, when she tried to

enter into the suit property. It is admitted that the second floor of the suit

property was let out by the present petitioner to a tenant. Therefore, it was

incumbent upon the original plaintiff to seek for restoration or recovery of

possession in the suit and in absence of such a prayer the suit itself is hit by

Section 34 of the Specific Relief Act, 1963.

II) It is argued on behalf of the petitioner that it is now settled that unless a

recovery of possession is prayed for admittedly is not in possession of the

property the suit itself is not maintainable and in this regard put reliance on

the decision of the Hon’ble Supreme Court of India in the case of Union of

India versus Ibrahim Uddin and Anr. reported in

1

. This proposition was

1

(2012) 8 SCC 148

Page 7 of 33

also held by the Supreme Court in its judgement reported in, Venkata Raja

and others versus Vidyane Doureradjaperumal

2

.

III). It is further the contention of the learned Counsel that on the date of filing

of the suit the plaintiff was not in possession of the suit property which can be

found from the general diaries lodged by the original plaintiff with the Bidhan

Nagar Police Station, which was submitted in the affidavit in opposition filed

by the present opposite party/plaintiff in this revisional application. Therefore,

apparently no relief of possession being sought either by the original plaintiff

or the substituted plaintiff hence the suit itself is not maintainable. Therefore,

as per settled law, when a final relief in the suit cannot be passed, no

interlocutory order can be made in favour of the plaintiff. Admittedly, the relief

of local inspection sought by the substituted plaintiff opposite party, herein is

an interlocutory relief, and the same cannot be granted since the final relief of

the suit itself is not maintainable. The learned court allowed the said

application whereby the local inspection on the points contended in the

schedule to the application which otherwise cannot be sustained were also

allowed.

IV). The fourth argument advanced is that a suit for permanent injunction by

one co-sharer against other co-sharer from exercising right over any part of the

property in joint possession without claiming partition is not maintainable. In

this regard, reliance was put in the judgement of T. Ramalingeswara Rao

(Dead) through Lrs and another versus N. Madh ava Rao and others

3

, for

2

(2014) 14 SCC 502

3

(2019) 4 SCC 608

Page 8 of 33

relied upon Bachaspati Bhattacharya & Ors. Versus Smt . Meera

Bhattacharjee & Ors

4

.

V). The further contention made before this court is that without prejudice to

the averment what it is contained that the application for local inspection filed

by the substituted plaintiff could not have been allowed as the same amounts

to nothing but a mere attempt to fish out evidence. An analysis of the points

on which the local inspection is sought would make it apparent that the real

purpose of the application is to ascertain the possession and occupation and

occupancy of the suit property as on the date of the filing of the application for

local inspection. The attempt of the substituted plaintiff is really to gain

information by way of holding the local inspection to be used in collateral

proceedings under Order XXXIX, Rule 2A filed by the substituted plaintiff

alleging violation of an order of injunction passed by the learned court below.

The application under Order XXXIX Rule 7 of the Code of Civil Procedure,

1908 cannot be used to fish out or collect evidence and support of the relief

claimed in the case. In this regard, Reliance is placed on the judgement of the

Hon’ble Supreme Court of India in the case of Padam Sen and Anr vs. State

of Uttar Pradesh reported in

5

and The Institution of Engineers (India) &

Anr. Versus Bishnu pada Bag & Anr

6

.

7. Accordingly submitted that in view of the aforesaid circumstances , it is clear

that the portion of the order impugned by which the application filed by the

substitute plaintiff/opposite under Order XXXIX, Rule 7 Code of Civil

Procedure, 1908 as allowed should be set aside.

4

AIR 2019 SC 1777

5

AIR 1961 SC 218

6

AIR 1978 Calcutta 296

Page 9 of 33

8. Per Contra learned, advocate, representing the opposite party raised objection

and took the specific points as to why the prayer of the petitioner in this

revisional application should not be entertained The first point raised that the

joint possession of the property as mentioned in the plaint is also admitted by

the defendant/petitioner in her written statement and counterclaim. The

mother of the opposite party, original plaintiff filed an application under Order

XXXIX, Rule 1 and 2 read with section 151 of the Code of Civil Procedure for

temporary injunction and the learned C ourt vide order dated 7.8.2017,

restrained the present petitioner in making or creating any disturbance in

peaceful possession of the suit property by the original plaintiff. The said entry

made was validated by the present petitioner for which a proceeding under

Order XXXIX, Rule 2A of the Civil Procedure Code is pending, and the

petitioner also filed an application under Order XXXIX, Rule 4 of the Civil

Procedure Code. Upon contested hearing of the injunction application and

petition filed under XXXIX, Rule 4 of CPC, the learned Court vide order dated

15th March, 2018 directed both the parties to maintain status quo as regards,

nature, character and possession in respect of the suit property, as on the date

till the disposal of the suit. The said proceeding was never challenged by the

petitioner and it attains finality. After that petition was filed with the petitioner

under Section 151 on 3.4.2018 for certain di rections and to remove her

belongings in the suit property and this itself, proves that the petitioner/sister

was not in possession of the suit property, and this petition was allowed by

the order dated 28.6.2018, which was subsequently set aside by the H igh

Court in CO no. 2204 of 2018.

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9. During the interregnum period, the petitioner illegally and unauthorisedly

possessed the suit property without giving any undertaking so directed by the

learned court. After the petitioner let out the entire ground floor for commercial

purpose for which several directions passed by the court to stop such

commercial activities. In order to assess the damage caused by the petitioner

in the suit property and the present possession of the suit property, the local

inspection is required under Order XXXIX Rule 7 of the civil procedure court,

and hence no interference is required in respect of the order passed by the

learned court whereby the petition is allowed. The learned advocate relied

upon the decision reported in Padam Sen and anr. versus State of Uttar

Pradesh

7

. Allahabad Bank versus Sourendranath Shaw & Anr

8

. Nitindra

Nath Roy Chowdhury & Ors versus Subhash Chandra Kar

9

.

10. Heard the rival contentions of both the learned advocates. The materials

placed on record and the pleadings made by the parties prior to his demise, Dr

Dwijendra Kumar Ray executed a Will on 7.9.2016, bequeathing his undivided

50% share in the suit property in favour of his only daught er that is the

petitioner herein ,now pending for grant of probate being contested by the

present opposite party/brother.

11. The record further disclose that Dr Urmila Ray also executed a will on the

same date bequeathing her 50% share in the same property in favour of the

present petitioner, but later on, she revoked her will executed on 7.9.2016 and

further executed a will and a codicil whereby she bequeathed her 50% in

favour of the present opposite party. The probate proceeding in connection

7

AIR 1961 SC 218

8

AIR 1997 Cal 80

9

AIR 1981 Cal 319

Page 11 of 33

with that will is also pending before the concerned court. Dr Urmila Roy during

her lifetime filed the suit against her daughter and the son was made as pro

forma defendant. During her lifetime, she also prayed for an injunction order,

which was initially granted directing the parties to maintain status quo in

respect of nature, character, as well as possession of the suit property. The

order was subsequently modified in terms of the prayer made by the present

petitioner and taking the assistance of the police officers of Bidhannagar North

took possession of certain portion of the premises, was challenged before the

High Court and the said order was set aside. The mother filed an application

under section 151 of CPC for restoration of possession of certain portion of the

premises and taking advantage of the judicial order, the petitioner, admittedly

took possession of certain portion of the suit property and in terms of the

subsequent order of the learned coordinate bench, that initial order lost its

force. The mother expired on 6.10.2018 and she lodged s everal complaints

over some illegal construction raised by the present petitioner during her

lifetime. The present opposite party and his family member s admittedly are

resident of United Kingdom but claimed that whenever they visit Kolkata, they

used to stay in the suit property. The opposite party, after demise of his

mother being appointed as an executor to the will of his mother filed

application to be transposed as plaintiff. The prayer was allowed and affirmed

by this court on challenge . The opposite party in the capacity of an executor

also filed an application under Order 39 Rule 7 of Code of Civil procedure for

inspection of the portion which has been retained by the present petitioner , in

order to ascertain the damage caused by her in the property. The brother

/opposite party herein in the writ petition prayed for a direction commanding

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the police authorities to enquire, investigate and register cases based upon the

complaints lodged by him, as well as his mother on several occasions and no

action was taken over the same. The application filed under Order XXXIX, Rule

7 CPC was made for appointing advocate commission er and the schedule

points for local inspection were as follows;

i) to go to the premises number DB1, sector-I, Salt

Lake city, Kolkata 700064, being the suit property

within the jurisdiction of Police Station, Bidhan

Nagar(north) and ascertain as to whether the portion

of the such property in map annexed to the petition is

kept under lock and key, and if so, to direct the

learned commissioner to see the locks and keep the

same as such.

(ii) if it is found that those portions are not under lock

and key, then to note how those portions are being

used and what are the articles in the said portion and

take note of those articles.

iii)To ascertain in the mode of user of the ground floor,

of the suit property from a part of each, the plaintiff

has been dispossessed by the present petitioner on

10th July 2018, with the police assistance for which

application for restoration of possession is pending.

iv)To note all other local features, as would be pointed

out by the parties in the locale.

12. The judgement relied upon in this regard in Union of India versus Ibrahim

Uddin and another (Supra ) it was held that section 34 of Specific Relief Act,

1963 provides that courts have the discretion as to declaration of status or

right, however, it carves out an exception that a court shall not make any such

declaration of status or right where the complainant, being able to seek further

relief than mere declaration of title, omits to do so. The Hon’ble Supreme

Page 13 of 33

Court took note of Ram Saran versus Gang a Devi

10

where it was held

categorically that the suit seeking for declaration of title of ownership, but

where possession is not sought is hit by the Proviso of Section 34 of the

Specific Relief Act 1963, and thus, not maintainable.

13. In Vinay Krishna versus Keshav Chandra

11

, the Hon’ble Apex court dealt

with a similar issue where the plaintiff was not in exclusive possession of

property and had filed a suit seeking declaration of title of ownership. Similar

view has been reiterated observing that the suit was not maintainable, if

barred by the proviso to section 34 of the Specific Relief Act. Accordingly held

that in view of the above, the law becomes crystal clear that it is not

permissible to claim the relief of declaration without seeking consequential

relief.

14. In the decision of Venkataraja and others (Supra ) this principal was

reiterated in para 24 that “a mere declaratory decree remains non-executable in

most cases generally. However, there is no prohibition upon a party from

seeking and amendment in the plaint to include the unsought relief, provided

that it is saved by limitation. However, it is obligatory on the part of the

defendant to raise the issue at an earliest”.

15. All the above cases cited by the parties relates to declaratory suits not by a

person transposed as plaintiff in the capacity of an executor. In terms of

section 211 of the Indian Succession Act after demise of the testator the entire

property in the will vests upon the executor and he is given ample power to

protect the property like the owner till the probate is obtained and the

10

(1973) 2 SCC 60

11

AIR 1993 SC 957

Page 14 of 33

property is administered to the legatee .In addition the instant suit property is

a joint property and the parents of the parties were joint owners and so long

the probate of the wills executed by the parents are made, the status of parties

being the only legal heirs of their parents are co-sharer of the entire property.

The original plaintiff filed the suit for declaration when she had the 50%

ownership and also entitled to have her 1/3

rd

share in respect of 50% of her

husband’s share and hence was a co sharer.

16. It is settled proposition of law that in a joint and undivided property all the

co-owners have equal share in each part of the property .However no prayer for

restoration of possession was made under Section 144 Cr.P.C. Consequently,

the petition filed under section 151 cpc was not entertained for that relief.

17. In the case of Padam Sen and Anr vs State of Uttar Pradesh (supra) as

relied upon both the Learned Counsels,it was observed in para 13 that “Rule 7

of Order XXXIX empowers the court ,on an application of any party to a suit ,to

make an order for the detention, preservation or inspection of any property

which is the subject matter of the suit or as to which any question may arise

therein”. In that case the objection raised regarding the account Book which

was held to be not “property” which were the subject matter of suit nor such

that about them a question could rise in the suit.

18. In the instant case the original plaintiff prayed for a decree of declaration

declaring her joint ownership to the extent of ½ +1/3 in respect of the suit

property against her daughter who after demise of her father inherited her

undivided share in accordance with the rule of succession and became the

joint owners with her mother and brother and it is settled law that the co-

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sharer has right in each every part of the joint property until divided by metes

and bound.

19. The record further disclose that an order of injunction was passed on the

prayer made by the original owner/mother directing the parties to maintain

status quo with regard to the nature character and possession of the suit

property .This order was later on modified and it is the specific case of the

petitioner/sister that on the strength of a judicial order she was allowed to

take possession of certain portion of the suit property .That modified order

was later on set aside by the Learned Single Bench .Accordingly the petition

under section 151 CPC was filed during the life time of the mother to restore

such possession which was again filed by the brother later on after being

transposed as plaintiff .The Learned Court rejected both the applications

against which the brother has filed two revisional applications which have

been dealt with by this court hereinafter .

20. In the backdrop of the aforesaid factual matrix ,particularly in view of the

High court’s findings validating the allegations of unauthorized occupation

and construction ,the executor ,being a legal obligation to preserve and protect

the estate of the testatrix ,is entitled to seek the appointment of an advocate

commissioner to inspect the property ,ascertain the nature and extent of the

damage caused by the sister and report on whether physical possession of

any portion of the property has been parted with or not. These facts

unequivocally manifest that even if the argument of the Learned Counsel for

the respondent herein is accepted that a suit for declaration without praying

for recovery of possession is not maintainable, will not be an issue at this stage

in the instant case . But the Learned trial court refused the prayer on the

Page 16 of 33

ground that it cannot be ascertained as to the status of the position when the

order of statusquo was passed. This court though is unable to accept such

ground for refusal in view of the aforesaid discussion.

21. Accordingly the instant revisional application filed by the sister Dr.

Rajyashree Ray Bandyopadhyay being CO 1616 OF 2022 is dismissed .The

order passed by the Learned trial court allowing the application for appointing

advocate commissioner stands affirmed .

C.O 1920 OF 2022 /C.O 1921 of 2022

22. The above revisional applications were filed by the brother Dr. Partha Sarathi

Roy against the portion of the order dismissing the applications filed by both

the original plaintiff and the transposed plaintiff under Section 151 of CPC,

refusing the prayer for restoration of possession.

23. The learned advocate appearing for the petitioner submitted, during her

lifetime, the mother had lodged several complaints against her daughter/

respondent but police authorities failed to take appropriate steps to investigate

or pursue the complaints. A Writ petition had to be filed alleging inaction on

the part of the police authorities, as well as against the Bidhannagar Municipal

Corporation in respect of an alleged illegal construction raised at the suit

premises by the sister in collusion with a local Developer.

24. By virtue of order dated 21.2.2022 and 12.5.2022, the Learned court

directed the Municipal Corporation to conduct inspection of the same and to

take consequential steps. In course of hearing as called for she admitted of

making numerous alternations beyond the scope of sanctioned plan and she

Page 17 of 33

was directed to demolish the illegal unauthorised construction within a period

of two weeks and to stop all sorts of commercial activities from the said

premises. It is the specific contention that taking advantage of the order

passed in the suit, giving access to the respondent on 28 .6.2018 the

respondent did all sorts of misdeed however the said order was set aside by

the High Court holding that restoration of possession always has to be

tangible physical possession and there cannot be any restoration of notional

or joint possession of the parties. But the legal possession of the mother was

taken by the respondent with the help of the police during the interregnum

period and for that reason, the application under 151 of the Code of Civil

Procedure was filed by her and after death of the mother, the petitioner being

transposed as plaintiff prayed for restoration of possession.

25. It is the further contention of the Learned Advocate that in legal terms

restitution is used in three senses. i) returned, and restoration of some specific

thing ii) compensation for such wrong doing iii) compensation for benefits

derived from such wrongdoing. It is also salutary principal that restitution is

based on the legal maxim ‘actus curiae neminem gravabit’ means that an act

of court shall prejudice no man. This principal is recognised under Section 144

of the Code of Civil Procedure and the court can apply the same under Section

151 of the Code.

26. It is further contended that the mother of the petitioner was all along in

possession of the suit property till it was taken by the order of the learned

court, which was subsequently set aside and the same can be maintained by

the petitioner after his transposition as plaintiff in the suit. Therefore, it was

Page 18 of 33

the bounden duty of the learned court below to restore the possession of the

suit property as it was there before illegally taken by the opposite party. In this

regard relied upon the decision reported in Shibesh Paul Steel Authority of

India Ltd. and other

12

. Another decision reported in, The State of West

Bengal versus M/s Bansilal Leisure Parks Limited and Anr

13

.

27. It is the specific contention of the learned advocate that the interim order

was violated for which petition had been filed by the original plaintiff under

Order XXXIX Rule 2A of the Civil Procedure Code. After contested hearing of

the injunction application and the Order XXXIX, Rule 4 of the Civil Procedure

Code, the learned court vide order dated 15

th

March 2018 directed both the

parties to maintain status quo as regard, nature, character, and possession in

respect of the suit property and such order has never challenged by the

present opposite party and it attains finality. After that the application under

Section 151 of CPC was filed to enable her to remove her belongings and filing

of such petition clearly proves that the respondent was not in possession of the

property. The defendant respondent let out the entire ground floor for which

several directions passed by this court to stop such commercial activities and

hence the petition had to be filed for restoration possession as it was at the

time of filing of the suit and the learned court ought to have considered the

entire circumstances without refusing such prayer mechanically, and without

exercising judicious mind. The petitioner further relies on the decision

reported in (Meera Chauhan versus Harsh Bishnoi and another

14

, (Sujit

12

(2010) 3 CHN Cal 582

13

(2019) 4 CHN Cal 582

14

(2007) 12 SCC 201

Page 19 of 33

Pal versus Praveen Kumar Sun and others

15

. Accordingly, prays for such

order.

28. Per contra the learned advocate representing the opposite party argued that

the original plaintiff prayed for restoration of possession from the portion of

the suit premises from which she had allegedly been dispossessed in terms of

the order dated 28

th

June 2018. It is settled now that when specific remedy

available under another provision of code and the original order passed on 15

th

March 2018 gets modified by directing the plaintiff and the defendant no. 1 to

maintain status quo as regard nature and character and possession in respect

of the property as on 15

th

March 2018, till disposal of the suit. On 28

th

June,

2018, the inspector in-charge was directed to remove the padlocks of various

portions of the property as specified therein and pursuant to the judicial order

such order was implemented on 10

th

July 2018. By the order passed by the

High Court in C.O. no. 2204 of 2018, the said order was set aside, and after

that, the plaintiff applied for restoration of possession as on the date of her

dispossession pursued to the order dated 27th June, 2018 passed in the said

suit. Therefore, the proper remedy for the original plaintiff in the instant case

would have been to file an application under Section 144 of Code of Civil

Procedure, 1908 which provides mechanism for restitution in case of alteration

of a status in terms of an order passed by the Hon’ble Court, which were

subsequently set aside, modified or varied. Therefore, the application under

Section 151 of the Code of Civil Procedure, 1908 is not maintainable.

15

AIR 1986 Cal 220

Page 20 of 33

29. It is further argued that the admitted position is that the original plaintiff has

since departed her life as on the date then the order impugned in the present

civil revisional application was being passed, and such substituted plaintiff

who claims to be an executor of an alleged will cannot seek to pursue the said

application. Reliance placed by the learned counsel appearing on behalf of the

petitioner on the provision of Order 2 Rule 5 of the Code of Civil Procedure,

1908 is completely misconceived, which has no manner of application to the

present suit.

30. The learned counsel distinguished the judgement relied upon by the

petitioner as the petitioner sought for that it was open to the original plaint to

seek relief under Section 151 of the Code of Civil Procedure, 1908 since it was

possible for a temporary mandatory injunction being passed on an application

under Section 151 thereof while there is no quarrel with the proposition that

an order of temporary mandatory injunction can be made under Section 151 of

the Code of Civil Procedure, 1908. Neither of the cases cited are concerned

with the situation where the fact similar to those as of the instant suit. Both

the judgements relied upon on behalf of the petitioner relates to a situation

where the defendant dispossessed the plaintiff in spite of a subsisting order of

injunction restraining the defendant from doing so. Neither the judgement

aforesaid contemplate a situation where the alleged dispossession was

pursuant to implementation of an order of court. It is further submitted by the

learned counsel that the argument advanced on behalf of the petitioner that

implementation of the order dated 27th June, 2018 by the inspector in charge

of Bidhannagar Police Station on 10

th

July 2018, amount to violation of the

Page 21 of 33

order dated 15

th

March 2018 is thoroughly misconceived, and hence the

instant revisional application deserves to be dismissed with cost.

31. Heard the rival contentions of both the learned counsels. On perusal of

materials on record as well as considering the submission advanced the facts

which are found to be admitted that the suit premises jointly owned by the

parents of the present parties of this revisional application and both of them

executed respective Wills bequeathing their 50% share to the petitioner and

the respondent, who are the brother and sister, respectively. The learned trial

court considering both the injunction application passed the order on 15.3.

2018, directed both the parties to maintain status quo as regard the

possession of property. Fact remains such order was modified by the

subsequent order directing the Bidhannagar PS to remove the pad lock of AC

bedroom, personal study room, computer room, children’s room and the

kitchen on the second floor and allowed the defendant/daughter to take all her

belongings there from and allowed the defendant no 1 to occupy with all her

belongings in only two bedrooms, which will be small in size compared to the

kitchen in the second floor of the suit flat.

32. The Learned Court further directed that in the event the defendant already

enjoying such two bedrooms, she will not get any other bedrooms that is to say

in total the defendant no. 1/present respondent can enjoy two small

bedrooms, two toilets and bathroom and one small living room and the kitchen

in the second floor of the suit flat. Direction was also given to the police station

to remove the padlock of the said chamber in the ground floor of the flat and

allowed the respondent to occupy the same and to see that public peace and

Page 22 of 33

tranquillity can be maintained. The remaining rooms in the second floor of the

suit to be under lock and key as it was for the purpose of using by the plaintiff

or the former defendant and the IC Bidhannagar was directed to handover

keys to the plaintiff. Further direction given to the defendant no. 1 to file a

written undertaking supported with an affidavit that she will not claim any

equity in her favour in future in claiming exclusive or settled possession in

respect of the rooms arranged by this order. This order was implemented by

the police on 10 July 2018.

33. The said order was set aside vide order dated 27.07.2018 with the

observation that when restoration of possession is concerned, it is always to be

tangible physical possession and there cannot be any restoration of notional or

joint possession of the parties. During this entire period that is from the order

of status quo passed by the learned trial court on 15. 3. 2018 till July 27,

2018.

34. Therefore, it is apparent that the police implemented the order on 10

th

July

2018 after the order passed by the learned trial court to maintain status quo

was modified on 28.6.2018, by giving specific direction to the Bidhan Nagar

police to open the pad lock. That order was set aside on 27.7.2018 after

implementation of the previous order handing over the possession over to the

present respondent. The judgement relied on by the petitioner in Meera

Chauhan (Supra) ,an application for injunction restraining the respondent no.

2 from transferring, eliminating or encumbering was filed and an ex parte

interim order of injunction was passed, but the order of interim injunction was

granted against the respondent no. 2 from interfering with possession of

Page 23 of 33

respondent no. 1 in respect of the suit property. When the interim order of

injunction was in force, the applicant purchased the property from respondent

no. 2, and she was put into possession on the same date. Petition was filed

against said police authorities claiming for dispossession during his absence.

Praying for restoration of possession by respondent no. 1, a suit under section

6 of Specific Relief Act was filed before the Civil Judge for restoration of

possession and an application to that extent was filed by him under Section

151 of Code of Civil Procedure on the allegation that he was dispossessed from

the suit property during the pendency of the suit when interim order of

injunction was in force. The Hon’ble Supreme Court observed that the

question of possession at the relevant point of time, it would be appropriate to

note that the order for restoration was passed by the trial court on an

application under Section 151 of the Code of Civil Procedure. A question may

arise whether such an application can be entertained by the court when

specific provision under Order 39 of the Code of Civil Procedure has been

made for grant of injunction in the form of mandatory order in exercise of

power under the said order. It was held-

“15. on a bare perusal of Section 151 CPC it cannot

be said to be in dispute that Section 151 confers wide

powers on the court to make such orders as maybe

necessary for the ends of justice or to prevent abuse

of the process of the court.

16. The power of section 151 to pass order of

injunction in the form of restoration of possession of

the court is no more res integra now”

Page 24 of 33

17. In Manohar Lal Chopra versus Rai Bahadur

Rao Raja Seth Hiralal AIR 1962 Supreme Court

527 while dealing with the power of the court to pass

orders for the ends of justice or to prevent the abuse

of the process of the court, the Court held that the

courts have an inherent jurisdiction to issue

temporary order of injunction in the circumstances

which are not covered under the provisions of order

39 of the Code of Civil Procedure.”

35. In the case of Sujit Pal (Supra) the opposite party made an application for

temporary injunction, and the learned Judge passed an order of interim

injunction, restraining the defendant from interfering with the possession of

the Opposite Party of the said room, despite such injunction, the defendants in

violation of the said order of injunction forcibly dispossessed the opposite party

from the suit premises. An application under Order XXXIX Rule 2A CPC and

under Section 151 of CPC was filed praying for mandatory injunction,

restoring the possession of the opposite party of the said room with police help

and such application was allowed directing restoration of possession of the

room in the said premises with police help.. Being aggrieved by the impugned

order, the petitioner preferred an appeal and filed the present application for

an interim order of stay of operation of the said order. Argument was advanced

on behalf of the petitioner challenging the jurisdiction of the learned judge to

entertain an application under Section 151 of Civil Procedure C ode for a

temporary mandatory injunction for the restoration of possession to the

opposite party of the said room. It was submitted by the learned advocate that

there is express provision under Order XXXIX Rule 2A for a remedy for the

violation of a temporary or interim injunction and court has no power to grant

Page 25 of 33

a temporary mandatory injunction in exercise of its inherent power. It was

contented that the provision of order XXXIX Rule 2A is a provision for

execution of an order for a temporary injunction, and that in case of

disobedience of a temporary or interim injunction the only remedy of the

aggrieved party is to avail himself of that provision. The Supreme Court took

note of Manoharlal versus Seth Hiralal

16

and held that- “the inherent power

of the court as recognised under section 151 of the court is in addition to the

power conferred on the court, under the provision of the code. All that the court is

concerned is to prevent abuse of the process of court and to do justice by

immediately intervening under circumstances, which require such intervention

by the court”. It was held after taking note of Hari Nandan versus SN

Pandita

17

, where the Allahabad High Court took the same view that “when a

party has been dispossessed in disobedience of the order of injunction the court

can in exercise of its inherent power pass such order for ends of Justice as

would undo the wrong done to the aggrieved party.”

36. In the present case, the question boils up as to whether at all, there was

disobedience by the respondent in this case or not since the original order of

maintaining statusquo passed by the court was modified granting permission

to the police to remove the padlock and on the strength of a judicial order such

order was implemented by the police and the possession was handed over to

the respondent. The subsequent order of modification was set aside much after

the possession was given to the respondent by virtue of a judicial order and

therefore the above judgments are distinguishable factually and is not

16

AIR 1962 Supreme Court 527

17

AIR 1975 ALL 48

Page 26 of 33

applicable in the instant case, since there was no violation of order of

temporary injunction or interim injunction. In such circumstances when the

petitioner is claiming restoration of possession he ought to have come by filing

Section 144 of the Code of Civil Procedure which is as follows;

“144. Application for restitution

1) where, and in so far as a decree or an order is

varied or reversed in any Apple, revision or other

proceeding, or is set aside or modified in any suit

Institute for the purpose, the court, which passed the

decree or order shall, on the application of any party

entitled to any benefit by way of restitution or

otherwise, cause such restitution to be made as will,

so far as maybe, place the parties in the position

which they would have occupied, but for such degree

or order or such part there as has been varied,

reversed, set aside or modified and for this purpose,

the court may make any orders, including orders for

the refund of costs, and for the payment of interest,

damages, compensation, and mean profits, which are

properly consequential on such variation, reversal,

setting aside, or modification of the decree or order.

[Explanation.--For the purposes of sub-section (1), the

expression "Court which passed the decree or order"

shall be deemed to include,

(a) where the decree or order has been varied or

reversed in exercise of appellate or revision

jurisdiction, the Court of first instance;

Page 27 of 33

(b) where the decree or order has been set aside by a

separate suit, the court of first instance which passed

such decree or order.

(c) where the Court of first instance has ceased to

exist or has ceased to have jurisdiction to execute, it,

the Court which, if the suit wherein the decree or

order was passed were instituted at the time of

making the application for restitution under this

section, would have jurisdiction to try such suit.]

(2) No suit shall be instituted for the purpose of

obtaining any restitution or other relief which could be

obtained by application under sub-section (1).”

37. In the case of Vanshidhar Sharma versus state of Rajasthan and

others

18

, the doctrine of restitution under Section 144 and 151 and its

applicability was discussed. It was observed that-

“17. It clearly transpires that Section 144 CPC

applies to a situation wherein decree or order is

varied or reversed in appeal, revision, or any other

proceedings or is set aside or modified in any suit

instituted for the purpose. The principle of restitution

is that on the reversal of a decree, the law imposes an

obligation on the party to the suit to receive the

benefit of the decree to make restitution to the other

party for what he has lost. The obligation arises

automatically on the reversal or modification of the

decree and necessarily carries with it. The right to

restitution of all that has been done under the decree

which has been set aside or an order is varied or

reversed, and the court is making restitution is bound

18

(2019) 19 ACC 701

Page 28 of 33

to restore the parties, so far as they can be restored to

the same position as they were in at the time when

the court by its action had displaced them.”

In the present fact and circumstances, she filed an application before the court

after the order of interim injunction was passed and the court after hearing the

parties passed the order which was implemented by the Bidhan Nagar Police

official. Therefore, by no stretch of imagination, it can be said that the order of

injunction was violated .If the subsequent order is construed as a modified

order pursuant to which possession was restored to the sister ,and thereafter,

upon the modified order being set aside the question of invoking the inherent

jurisdiction of the court under Section 151 of the code of civil procedure

does not arise .In such circumstances ,Section 151 CPC cannot be invoked to

seek restoration of possession .

38. The learned trial court after considering the submissions made by the

learned advocates of both sides and considering the materials and record was

also of the view that it has to be ascertained as to what the position was before

the police had acted as per order passed by the court, is not possible at this

stage accordingly rejected the said petition.

In view of the discussions as made the question of exact position while

passing of the interim order which was subsequently modified about the exact

position at the time of passing of the original order becomes secondary but

when it is evident that no order of interim injunction was violated and the

entire action was done on the strength of a judicial order which was set aside

after implementation of such order, it can be termed as violation of Court’s

Page 29 of 33

Order. Accordingly this court do not find any merit in the case for interference

as the restoration of possession in this case cannot be allowed by exercising

inherent power when alternative remedy is available.

39. In C.O 1921 of 2022 filed by the present petitioner/son was the pro forma

defendant in the suit filed by the mother and later on transposed as the

plaintiff in place of his .After being transposed, he filed the petition under

Section 151 of the Code of Civil Procedure with the further prayer directing the

opposite party to makeover possession of all the floors of the suit property

within a specific time limit and also to restore all household articles, furniture

fixture and fittings.

40. The Learned advocate appearing on his behalf tried to impress upon the

court that it is an equivocally established that the respondent behind the back

of the petitioner had entered into a development agreement with a developer,

namely Rajiv Rajan Kumar, who with active aid and advice of the respondent

dismantled the entire internal structure of the suit property and used the

same for commercial and business purpose without any sanction and

authority of the competent authority. At the instance of the petitioner by an

order dated 21.02.2022 in W.P.A no. 2090 of 2022 coordinate bench directed

Bidhan Nagar municipal Corporation to hear the parties to pass a reasoned

order and in pursuance to such order the Bidhannagar municipal Corporation

by an order dated 10.7.2023, directed demolition of the unauthorised

structure ,directed without any sanctioned building plan and contravention of

the provision of the West Bengal municipal Corporation act, 2006. An appeal

was preferred by the respondent before the Hon ’ble Division Bench and

Page 30 of 33

whereby on 26.2.2024, the order of the learned Single Judge was affirmed.

Therefore, it is crystal clear that there was violation of the injunction order as

the respondent has changed the nature and character of the suit property

illegally and raised unauthorised construction in the suit property , and also

changed the nature of the building from residential to commercial without any

sanction or authority. Assuming the contention raised by him are correct but

for that reason a proceeding under Order XXXIX Rule 2A of CPC has been

initiated and these facts are not relevant to consider the subject matter of the

revisional application.

41. Similarly this court do not appreciate the submissions made by the Learned

Counsel of the Respondent regarding applicability of the provision of order 2

Rule 5 of the code of civil procedure, 1908 in the instant suit as the

transposed plaintiff is an executor to the will of his mother and is also a

legatee. It is specifically argued on her behalf that the proceeding filed under

section 151 of the code is not maintainable for having a relief of restoration of

possession but that can be claimed by taking appropriate recourse .It is

admitted that on the strength of a judicial order she was given possession of

certain portion and hence after such judicial order bein g set aside her

possession becomes questionable and the present plaintiff in the capacity of an

executor can very well maintain appropriate application for restoration of such

possession. However as discussed thoroughly in C.O no. 1920 of 2022 and

the same prayer being made this revisional application also cannot be allowed.

Accordingly this revisional application being CO 1921 OF 2022S stands

dismissed.

Page 31 of 33

C.O 2316 OF 2022

42. This revisional application is filed by Dr. Rajashree Roy Bandopadhyay

against her brother challenging the portion of the common judgement dated 1

st

June, 2022 in T.S no. 669/2917 whereby an application under Order VI Rule

17 of CPC was allowed. It is the case of the petitioner that after demise of the

original plaintiff the present opposite party as an executor to the last will as

alleged of their mother Late Urmila Roy applied to be transposed as plaintiff

and the same was allowed which was cha llenged before this court by the

petitioner being perverse .After being transposed the opposite party filed this

application for amendment of the plaint which practically would change the

nature and character of the suit as he is now praying for declaration of his

right title and interest in respect of the suit property against the present

petitioner which is not sustainable in the eye of law .

43. The Learned Advocate appearing on behalf of the opposite party on the

contrary argued that the four point s raised by filing such amendment

application are necessary for determining real controversy between the parties

and formal in nature and in no way will destroy the basic structure of the suit.

44. On perusal of the application filed under Order VI Rule 17 of the Code of

Civil Procedure, 1908 it appears that the proposed schedule of amendment

prayed for as follows;

“1. In para 4 of the plaint after the last sentence “On

death of Original plaintiff and before the order of

transposition, the transposed plaintiff duly applied for

probate of the Will which having been rendered

contentious now pends before learned 1

st

Court of

Page 32 of 33

Additional District Judge at Barasat being numbered as

OS 44/2019”. This sentence be inserted

2. In para 8 of the plaint after the last word “earlier”,

“even through as per statement made earlier in para 4

of the plaint, the alleged will allegedly made by Dr.

Urmila Roy stood revoked followed by a holographic

Will”. Be inserted

3. In para 9 of the plant at page 8 in fourth line after the

word “absolutely” “and on the death of Dr. Urmila Roy

transposed plaintiff is entitled to ½ + 2/3

rd

of balance

half of the property total 5/6

th

share of the whole

property” be inserted.

4. In the prayer (a) second line “½+ 1/3

rd”

will be

deleted “5/6

th

share” will be inserted.

5. In the prayer (b) in fourth line after the words “suit

property by the” “transposed” be inserted, and in same

line after the word “Plaintiff” “and also proforma

defendant” be deleted.”

45. Therefore the above proposed amendment disclose that the opposite party

after being transposed as plaintiff has tried to amend the plaint by claiming

his own share inherited after demise of their mother in accordance with the

law of succession . The law in this regard is very clear that a transposed

plaintiff cannot exert any other point than what was claimed by the original

owner. The opposite party was not substituted in his place but transposed as

an executor and the entire suit property vests in him. He can take all such

steps to preserve and protect the interest of the original plaintiff but cannot

prayed anything in excess which would be beneficial for him in his personal

capacity though in this case the opposite party is the legatee himself. However

after the probate is granted the situation would be otherwise and the opposite

party will then be entitled to claim his own right title interest on the strength

of the probate if granted but till such time excepting the required amendment

Page 33 of 33

which is necessary after demise of the original plaintiff which are to be

amended . Accordingly the portion of the order allowing the amendment is

hereby set aside.

46. The opposite party is given liberty to take out an amendment application

afresh within a period of two weeks from this date and to serve the copy of the

same to the conducting Advocate of the petitioner and the Learned Court is

directed to dispose of such application at an earliest preferably within a period

of one month therefrom after giving opportunity to both the parties.

47. Accordingly this revisional application being C.O 2316 OF 2022 stands

disposed of with the above observations.

48. Urgent certified copy if applied by any of the parties to be supplied subject to

observance of all formalities.

(CHAITALI CHATTERJEE DAS, J.)