Page No.# 1/6 GAHC010093072025 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : FAO/25/2025 MRS SITA DEVI KANOI W/O-SRI SHYAMLAL AGARWALLA (KANOI),R/O-NEW MARKET, NEAR ASSAM SALOON, P.O.-DIBRUGARH, DISTRICT-DIBRUGARH, ASSAM. 2: SRI RAJESH KANOI S/O-SRI SHYAMIAL AGARWALLA (KANOI) NEW MARKET NEAR ASSAM SALOON P.O.-DIBRUGARH DISTRICT-DIBRUGARH ASSAM. 3: SRI SANJAY KUMAR KANOI S/O-SRI SHYAMLAL AGARWALLA (KANOI) NEW MARKET NEAR ASSAM SALOON P.O.-DIBRUGARH DISTRICT-DIBRUGARH ASSAM VERSUS SRI PAWAN AGARWALLA (KANOI) S/O- LATE JAGADISH PRASAD AGARWALLA,NEW MARKET, NEAR ASSAM SALOON, DIBRUGARH TOWN, P.O.-DIBRUGARH, DISTRICT- DIBRUGARH, ASSAM. PIN- 786001 2:SRI BIKASH AGARWALLA (KANOI) S/O-LATE JAGADISH PRASAD AGARWALLA (KANOI) NEW MARKET NEAR ASSAM SALOON DIBRUGARH TOWN P.O.-DIBRUGARH DISTRICT- DIBRUGARH ASSAM. PIN- 786001 Page No.# 2/6 3:SRI AMIT AGARWALLA (KANOI) S/O-LATE JAGADISH PRASAD AGARWALLA (KANOI) NEW MARKET NEAR ASSAM SALOON DIBRUGARH TOWN P.O.-DIBRUGARH DISTRICT- DIBRUGARH ASSAM. PIN- 786001 4:SRI SHYAMLAL AGARWALLA (KANOI) S/O- LATE JOHARMAL AGARWALLA (KANOI) NEW MARKET NEAR ASSAM SALOON DIBRUGARH TOWN P.O.-DIBRUGARH DISTRICT- DIBRUGARH ASSAM. PIN- 786001 5:MS SANGITA KANOI D/O-SHYAMLAL AGARWALLA (KANOI) NEW MARKET NEAR ASSAM SALOON DIBRUGARH TOWN P.O.-DIBRUGARH DISTRICT- DIBRUGARH ASSAM. PIN- 786001 6:MS SEEMA KANOI D/O-SRI. SHYAMLAL AGARWALLA (KANOI) NEW MARKET NEAR ASSAM SALOON DIBRUGARH TOWN P.O.-DIBRUGARH DISTRICT- DIBRUGARH ASSAM. PIN- 78600 Advocate for the appellant(s): Mr. SK Goswami Advocate for the respondent(s): Mr. S Dutta, Senior Advocate Ms. K Bora Page No.# 3/6 B E F O R E HON’BLE MR. JUSTICE DEVASHIS BARUAH ORDER 20.06.2025 Heard Mr. SK Goswami, the learned counsel appearing on behalf of the appellants and Mr. S Dutta, the learned senior counsel assisted by Ms. K Bora, the learned counsel appearing on behalf of the respondents. 2. This is an appeal under Order XLIII Rule 1(r) read with Section 104 of the Code of Civil Procedure, 1908 (for short, ‘the Code’) challenging the order dated 17.03.2025 passed in Misc.(J).Case No.64/2023 arising out of Title Suit No.58/2023 whereby the learned Trial Court directed both the parties to maintain status-quo in respect to the suit land till the disposal of Title Suit No.58/2023. 3. The learned counsel appearing on behalf of the appellants submitted that the learned Trial Court did not consider that the appellants pursuant to purchase of the suit land in the year 2003 were also constructing a building (G+3) and in that regard had also obtained permission from the appropriate authorities. 4. The learned counsel further submitted that huge investments were also made in part construction of the building and there is no challenge to the Deed of Sale of the year 2003 and, as such, the learned Trial Court without considering the balance of convenience and the irreparable loss, harm and Page No.# 4/6 injury had granted the injunction thereby directing both the parties to maintain status-quo in respect to the suit land. The learned counsel appearing on behalf of the appellants further submitted that the injunction order though may have been worded as ‘maintenance of status quo by both the parties,’ but it is solely affecting the appellants as they have been in possession over the suit land pursuant to the purchase made in the year 2003. 5. The learned counsel appearing on behalf of the appellants further submitted that the appellants have also agreed to give an undertaking and for that purpose had filed an affidavit giving an undertaking on 17.06.2025. He, therefore, submitted that in view of the undertaking, the plaintiffs/the respondents herein cannot have an objection to the further construction of the building over the suit land. 6. Mr. S Dutta, the learned senior counsel appearing on behalf of the respondents/plaintiffs submitted that although the plaintiffs have a very good case on merits, but taking into account that the appellants herein are in possession of the suit land and they have raised certain constructions, in view of the undertaking so given vide the affidavit dated 17.06.2025, the respondents/plaintiffs would have no objection in modification of the injunction order, subject to the undertaking given before this Court that would remain binding upon the appellants throughout the proceedings in Title Suit No.58/2023. 7. This Court has duly taken note of the respective submissions made and has Page No.# 5/6 also perused the materials on record. From the materials on record, it is seen that the plaintiffs, who are the respondents herein, have instituted the Title Suit No.58/2023 challenging the right of the defendants over the suit land as described in Schedule A land and the very partnership deed on the basis of which the defendants have purchased the suit land. From the materials on record, it transpires that there is a prima facie case for going for trial. However, taking into account that the defendants/appellants presently are in possession of the suit land, since the date of the purchase and had also given an undertaking as mentioned in the affidavit on 17.06.2025, it is the opinion of this Court that the balance of convenience is not in favour of the plaintiffs for allowing the injunction order to continue against the defendants/appellants. 8. This Court has also taken note of that the appellants/ the defendants, having the prima facie right over the suit land on the basis of a deed for sale and presently being in occupation of the said suit land. The appellants have invested huge amounts towards the construction of the building, but on account of the injunction order, the Appellants are not in a position to complete the construction. Therefore, the aspect pertaining to irreparable loss, harm and injury would be more, if the injunction order so passed by the learned Trial Court is allowed to be continued, more so, in view of the undertaking given before this Court. 9. It is a settled principle of law that an undertaking given before this Court would have the force of an order being passed by this Court. In that view of the Page No.# 6/6 matter, this Court incorporates the undertaking so given in the affidavit dated 17.06.2025, as a part of this order. Paragraph 6 of the said affidavit contains the undertaking which is reproduced hereinunder: “6. That, we undertake that we shall either demolish any construction made during the pendency of the suit or hand over the possession to the plaintiffs, in the circumstances, the plaintiffs succeed in the proceeding initiated being T.S. No. 58/ 2023. We also undertake that we shall not create any 3rd party rights over the suit land as well as the construction made during the pendency of the suit.” 10. Accordingly this Court interferes with the order dated 17.03.2025 passed in Misc.(J).Case No.64/2023 arising out of Title Suit No.58/2023. The undertaking quoted hereinabove shall be binding upon the appellants herein, who are the defendant Nos.9, 11 and 12 during the pendency of the suit. 11. With the above, the appeal stands disposed of. JUDGE Comparing Assistant