Leena Saikia v. State Bank of India and Ors

ORDER

28.07.2023 Heard Shri NN Jha, learned counsel for the appellant, who has preferred this appeal against an order dated 06.06.2023 passed by the learned Civil Judge, Morigaon in Misc.(J.) Case No. 22/2023 in connection with T.S. Case No. 25/2023. The Suit has been filed for declaration and for permanent injunction.

¶2Vide the impugned order, the learned Civil Judge has issued notice in the application filed under Order XXXIX Rule 1 and 2 read with Section 151 of the CPC.

¶3Shri Jha, learned counsel has submitted that the Suit property has been inherited from their predecessors, namely, Ganesh Saikia (father) and Renu Saikia (mother) and there are number of siblings. It has been contended that certain Page No.# 4/5 signatures were taken from the appellant by one of the brothers on the pretext to convert a part of the Suit land which was annual patta and also for construction of certain factory. However, the signed papers were misused whereby the name of the petitioner was removed from the record of rights pertaining to the land and the land was given as mortgage for a loan taken by the said brother. He accordingly submits that unless an interim injunction is granted, irreparable loss and injury would be suffered by the appellant as plaintiff and there is a prima facie case to go for trial.

¶4Per contra, Shri KK Nandi, learned counsel, who has entered appearance for the respondent nos. 1 and 2 by filing Vakalatnama today has submitted that there is absolutely no error in the order dated 06.06.2023 and rather he submits that it is a fit case where the prayer of injunction should have been refused. He submits that the Suit appears to be a collusive one inasmuch as, pertaining to the said land there was originally a proceeding under the DRT Act followed by a present proceeding under the SARFAESI Act and the husband of the appellant plaintiff is one of the Directors of the Company which is involved in the borrowing.

¶5After hearing the learned counsel for the parties and on perusal of the materials on record, this Court is of the view that since the order dated 06.06.2023 have not discussed anything on merits, this Court will refrain from making any observation on the inter se merits of the case. However, this Court has noticed that the prayer of injunction has not been per se rejected and rather notice have been issued by fixing a next date. This Court has also been informed that the contesting parties have entered appearance.

¶6In that view of the matter, this Court is of the considered opinion that interference by this Court as a Court of Appeal, at this stage, would not be warranted and rather the discretionary power is to be exercised by the learned Trial Court on the next date fixed in accordance with law.

¶7The parties would be at liberty to put forward their respective cases while Page No.# 5/5 considering the prayer for injunction.

¶8The appeal, accordingly stands disposed of. JUDGE Comparing Assistant

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