64 08.01. 2025 Ct. No. 08 Ab FMA 1241 of 2024 IA No. CAN 1 of 2024 Sri Swapan Kumar Maity and another Vs. Sri Rajkumar Maity and others. --------------- Mr. Sourav Sen, Mr. Chhandak Dutta. … for the appellants. Mr. Kushal Chatterjee, Mr. Oishik Chatterjee. … for the respondents. The present appeal arises from an order no. 26 dated 25th January 2024 passed by the learned Civil Judge (Senior Division), Haldia in Title Suit No. 5 of 2023 by which an application under Order XXXIX Rule 4 of the Code of Civil Procedure filed by the defendant no. 2/respondent was allowed permitting her to raise construction in the south-west vacant portion of the old residential house in plot no. 2195 with a condition that an undertaking shall be given to the effect that she would demolish the structure, if so made, beyond her portion of share. A suit for partition was filed by the plaintiffs/appellants in respect of the said property treating the same to be a joint property of the parties to the suit. The defendants/respondents are attempting to raise construction over the suit property by encroaching the portion of the plaintiffs/appellants‟ property in respect of „ka‟ schedule. An application for temporary injunction was moved ex parte and an ad interim order of injunction was granted directing the parties to the suit to maintain status quo in respect of the nature, character and the possession over the „kha‟ schedule property till the specified time. 2 After the service is effected under Order XXXIX Rule 3 of the Code and the objections having filed, the ad interim order was made absolute on 17th October 2023 to operate till the disposal of the said suit. Subsequently, an application is taken out under Order XXXIX Rule 4 of the Code at the behest of the defendant no. 2/respondent seeking permission from the Court to make a new construction at the said portion of the joint property after modifying the said order of injunction. By the impugned order, the Court permitted the defendant no. 2/respondent to raise construction subject to an undertaking to the effect that it would be demolished provided it exceeds the portion claimed by her. At the outset, we must record that the Court should travel within the circumference of the provisions contained under Order XXXIX Rule 4 of the Code and on being satisfied that the ingredients incorporated therein are fully satisfied shall proceed to discharge, vary and/or set aside the order of temporary injunction. A distinction must be drawn between the stages from the discharge, variation and/or setting aside the ex parte ad interim order of injunction and the discharge, variation and settting aside of the order of temporary injunction passed on contest. In former case, the Court may exercise such powers provided it is proved that the plaintiff has knowingly made false statement or suppressed the material facts, which, if disclosed, would not invite the ex parte ad interim order of injunction to be passed. In a later case, it is obligatory on the part of the parties to the proceeding applying for discharge, variation and setting aside of the temporary injunction to prove that it causes an undue hardship to them. We do not approve the manner in which the 3 Court would permit the party to raise construction without satisfying itself whether such construction is in conformity with the statutory provisions applicable in this regard. Ordinarily, the Court should not pass such order after the temporary injunction is passed in presence of the parties except in exceptional circumstances that the said order of temporary injunction would cause undue hardship. Be that as it may, we have been informed in course of hearing that the construction is complete in all respect and, therefore, it would be an idle exercise to interfere with the impugned order at this stage in view of the judgment rendered by the Apex Court in case of Mandali Ranganna and others vs. T. Ramachandra and others, reported in (2008) 11 SCC 1. In an identical situation where the injunction was sought when the litigant was raising a construction, it was brought to the notice of the Apex Court that the construction is virtually complete and in the backdrop of such factual matrix it is held: “Rightly or wrongly constructions have come up. They cannot be directed to be demolished at least at this stage. Respondent 7 is said to have spent three crores of rupees. If that be so, in our opinion, it would not be proper to stop further constructions.” We, thus, do not find any grounds warranting interference with the impugned order. The appeal and the connected application being CAN 1 of 2024 are dismissed. There shall, however, be no order as to costs. (Harish Tandon, J.) (Prasenjit Biswas, J.) 4