IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION APPELLATE SIDE Before: The Hon’ble Justice Hiranmay Bhattacharyya CO 2552 of 2026 Syama Prasad Mookerjee Port, Kolkata, formerly the Board of Trustees of the Port of Kolkata Vs. M/s. Hada Brothers Private Limited For the Petitioner : Mr. Kishore Datta, Sr. Advocate Mr. Subhankar Nag Mr. Snehashis Sen Mr. Abhishek Banerjee ….. advocates For the Opposite Party : Mr. Aniruddha Chatterjee, Sr. Advocate Mr. Vikas Baisya Mr. Ayush Bhatia Mr. Rohan Bhatia Mr. Parikshit Lakhotia …advocates Reserved on : 21.08.2026 Judgment on : 25.08.2026 Hiranmay Bhattacharyya, J.:- 1. This application under Article 227 of the Constitution of India is at the instance of Syama Prasad Mookerjee Port, Kolkata (for short “SPMPK”) and is directed against the order being no. 18 dated 28.07.2026 passed by the learned Additional District Judge, 4th Court Howrah in Misc. Appeal No. 23 of 2025. 2. By the order impugned the application under Section 151 of the Code of Civil Procedure filed by the opposite party was allowed and the petitioner and its men and agents were directed to restore possession of the suit property to the opposite party within the time limit as mentioned in the said order. 3. An eviction order under Section 5 of the Public Premises (Eviction of Unauthorised Occupants) Act 1971 (for short “1971 Act”) was passed by the Estate Officer on 30.01.2025 in Proceedings no. 1427, 1427/R of 2013 against the opposite party herein. 4. Challenging the said eviction order, the opposite party preferred a Misc. Appeal being no. 23 of 2025 before the learned District Judge, Howrah. In the said appeal an undertaking was given on behalf of SPMPK that execution will not be proceeded with at this stage and a prayer was made for early hearing of the appeal. However, no order of stay was granted by the appellate court at that stage. 5. On 01.07.2026, SPMPK took possession of the property. 6. Thereafter, the opposite party filed an application under Section 151 of the Code of Civil Procedure in the Miscellaneous Appeal praying for restoration of possession. The said application was allowed by the impugned order. 7. Being aggrieved, SPMPK approached this Court. 8. Mr. Dutta, learned Senior advocate appearing for SPMPK contended that the opposite party instituted a Title Suit being no. 1744 of 2024 to stall the proceedings initiated before the Estate Officer. An interim order directing the parties to maintain status quo was passed by the learned Trial Judge which was extended from time to time. On an application under Order 7 Rule 11 of the Code of Civil Procedure being filed by SPMPK in the aforesaid title suit, the learned trial judge was pleased to reject the plaint of the said suit by an order dated 23.06.2026. The interim order passed in the said suit was in force till the passing of the order rejecting the plaint. He further contended that the eviction order was passed by the Estate Officer on 30.01.2025 but the appeal was filed only on 21.02.2025. He submitted that the said appeal was filed beyond the period of limitation specified in the statute, yet the appeal was not accompanied by any application for condonation of delay. He, thus, contended that such an appeal is a dead appeal and no order could have been passed by the learned judge of the appellate court in the said appeal directing restoration of possession. Mr. Dutta further contended that after the interim order passed in Title Suit no. 1744 of 2024 lost its force with the rejection of the pliant of the said suit there was no impediment upon the SPMPK to take possession of property in question. He further contended that the learned Judge of the appellate court misconstrued the effect of the undertaking given on behalf of SPMPK. He contended that the undertaking was given for a limited period as would be evident from the expression “at this stage” mentioned in the said order. Mr. Dutta further contended that the expression “at this stage” used while recording the undertaking has to be given the same interpretation as that of the expression “in the meantime”. As to the meaning of the expression “in the meantime”, Mr. Dutta placed reliance upon the decision of the Hon’ble Supreme Court in the case of Dr. Luis Proto Barbosa vs. Union of India and others reported at 1992 Supp (2) SCC 644 and a decision of the Hon’ble Division Bench of this Court in the case of Calcutta Corporation Teachers’ Association and another vs. Calcutta Municipal Corporation and ors. reported at (1993) 2 CHN 444. Mr. Dutta further placed reliance upon a decision of the Hon’ble Supreme Court in the case of Shri Krishnan v. Kurukshetra University, reported at (1976) 1 SCC 311 in support of his contention that an undertaking made in ignorance of legal rights cannot bind the maker of the admission. 9. Mr. Chatterjee learned Senior Advocate appearing for the opposite party submitted that the period of limitation for preferring an appeal from an order passed under Section 5 of the 1971 Act is 12 days from the date of publication of such order. He submitted that the learned Judge of the appellate court after being satisfied that the appeal was filed in time admitted the said appeal. He further submitted that since SPMPK was interested in early hearing of the said appeal, an undertaking on behalf of SPMPK was given before the Court that execution will not be proceeded with. He contended that relying on such undertaking, the learned judge of the appellate court did not pass an order of stay. He contended that since SPMPK took possession of the property by breaking locks and forcibly sealing the godown in violation of such undertaking, the learned Judge of the appellate court allowed the application of the opposite party for restoration of possession. Mr. Chatterjee learned Senior Advocate placed reliance upon the decisions of the Hon’ble Supreme Court in the case of Delhi Development Authority vs. Skipper Construction Company Private Limited reported at (1996) 4 SCC 622 and Balwantbhai Somabhai Bhandari vs. Hiralal Somabhai, reported at (2023) 17 SCC 545 in support of his contention that the Court has the power to undo the wrong committed by a party in violation of an undertaking. He concluded by submitting that the learned Judge of the appellate court was justified in directing restoration of possession of the suit property in favour of the opposite party herein. 10. In reply, Mr. Dutta distinguished the decisions cited by Mr. Chatterjee by submitting that the Court may have the power to direct restoration of possession if the same is taken in violation of an order of injunction. He contended that since no order of stay or injunction was subsisting at the relevant point of time, the decisions cited by Mr. Chatterjee cannot come to the aid of the opposite party. 11. Heard the learned advocates for the parties and perused the materials placed. 12. Estate Officer SPMPK passed an order of eviction against opposite party herein on 30.01.2025 in Proceeding no. 1427, 1427/R of 2013 under Section 5 of the 1971 Act. Such an order is appealable under Section 9(1) of the 1971 Act. The period of limitation for filing an appeal under Section 9(1) has been provided in Section 9(2) of the 1971 Act. Section 9(2)(a) lays down that an appeal from an order under Section 5 shall be preferred within 12 days from the date of publication of the order under Section 5(1) of that Section. 13. Record reveals that the memorandum of appeal filed by the opposite party challenging the order dated 30.01.2025 passed by the learned Estate Officer SPMPK was registered as a Misc. Appeal on 21.02.2025. It was specifically recorded by the learned District Judge, Howrah, in order being no. 1 dated 21.02.2025, that the Court fee paid in the memorandum of appeal is correct and the appeal was filed in time. The said order also reflects that the appeal was admitted. It further appears from the said order that the opposite party also filed an application supported by an affidavit praying for stay of the order dated 30.01.2025 passed by the Estate Officer. The learned District Judge, Howrah fixed 13.05.2025 for appearance and for hearing of the stay application on that date. 14. On 13.05.2025 i.e., date fixed for hearing of the application for stay of operation of the order passed by the Estate Officer, a submission was made by the learned advocate for the opposite party/appellant in Misc. Appeal that in compliance with the order of the Estate Officer a sum of Rs. 3,82,139/- has been paid by the opposite party. The opposite party also prayed for an order of stay. The learned advocate on behalf of SPMPK gave an undertaking before the appellate Court that the execution will not be proceeded with at this stage but he prayed for early hearing of the appeal. The learned District Judge, Howrah in the order dated 13.05.2025 recorded that the payment has been made by the appellant/opposite party herein. After considering the facts and circumstances of the case the learned District Judge observed that no order of stay is granted at this stage. 15. Though Mr. Dutta learned Senior Advocate for SPMPK strenuously argued that the appeal was time barred and without the delay being condoned the appeal is a dead appeal but SPMPK neither challenged the order dated 21.02.2025 wherein it was recorded that the appeal was filed in time nor raised such issue before the learned Judge of the appellate court at any stage of the appeal till the passing of the impugned order dated 28.07.2026. As rightly argued by Mr. Chatterjee learned Senior Advocate for the opposite party that the finding of the learned Judge of the appellate court in order dated 21.02.2025 that the appeal was filed in time is a finding on fact and this Court shall not permit the petitioner to raise such a disputed question of fact for the first time in this application under Article 227 of the Constitution of India. This Court is, therefore, not inclined to accept the contention of Mr. Dutta that the appeal was time barred and that the same is thus a dead appeal. 16. Record reveals that the opposite party filed the application for stay of operation of the order dated 30.01.2025 passed by the Estate Officer. It is not in dispute that the opposite party also deposited a sum of Rs. 3,82,139/- in compliance with the order of the Estate Officer. It appears from the order dated 13.05.2025 that SPMPK was interested in early hearing of the appeal and for such reason gave an undertaking before the learned Judge of the appellate court that execution will not be proceeded with. 17. It is not the case of SPMPK that no undertaking was given on behalf of SPMPK. On the contrary it is the contention of SPMPK that such undertaking was given for a limited period and the same cannot mean to continue till the disposal of the appeal. 18. The expression “in the meantime” fell for consideration before the Hon’ble Supreme Court in Dr. Luis Proto Barbosa (supra). The Hon’ble Supreme Court held that the said expression takes its colour from the context. In the said decision there was a direction to list the matter on 30.10.1990 with an observation that in the meantime, status quo as on that date will continue. On such factual matrix the Hon’ble Supreme Court held that it is difficult to say the period of the restraint spilled over 30.10.1990. Page 7 of 11 19. In Calcutta Corporation Teachers’ Association (supra) it was held that the phrase “in the meantime” must be given its formal meaning i.e., “during or within the time which intervenes”. 20. From the aforesaid decision it follows that the expression “in the meantime” has to be interpreted in the context in which the said phrase has been used. 21. In the case on hand, the application for stay was filed on the date of filing of the appeal and the hearing of the stay application was fixed on 13.05.2025. The expression “at this stage” used after recording the undertaking given by the learned advocate on behalf of SPMPK has to be interpreted in the context in which the same has been used. 22. It appears from the order dated 13.05.2025 that the learned advocate appearing for SPMPK prayed for early hearing of the appeal and an undertaking was given before the Court that the execution will not be proceeded with. Thus, it is evident that SPMPK gave the undertaking not to proceed with the execution case in order to avoid the delay in disposal of the application for stay. 23. Upon a bare reading of the order dated 13.05.2025 it appears to this Court that SPMPK desired early disposal of the appeal. 24. This Court is, therefore, of the considered view that the expression “at this stage” has to be read in the context of the order dated 13.05.2025 and in the light of the prayer for early hearing of the appeal. 25. This Court accordingly holds that the phrase “at this stage” refers to the period starting from the point of placing on record the undertaking till the disposal of the appeal pending before the appellate Court. 26. To the mind of this Court, the learned Judge of the appellate Court was right in holding that the phrase “at this stage” in the context of the order dated 13.05.2025 refers to pendency of the appeal proceeding. Page 8 of 11 27. From a bare reading of the order dated 13.05.2025, this Court is of the considered view that the undertaking given on behalf of the SPMPK not to proceed with the execution coupled with the prayer for early hearing of the appeal induced the learned Judge of the appellate court not to pass a formal order of stay. 28. The learned Judge of the appellate Court after recording the undertaking given on behalf of SPMPK not to proceed with the execution did not pass a formal order of stay, by relying upon the undertaking given on behalf of SPMPK. 29. Though Mr. Dutta learned Senior Advocate for SPMPK in course of his argument strenuously contended that after the plaint of Title Suit no. 1744 of 2024 was rejected on 23.06.2026, possession was taken by SPMPK, but SPMPK did not take that stand before the learned Judge of the appellate court at the time of hearing of the application under Section 151 of the Code of Civil Procedure. It does not appear from the materials on record that any written objection to the application under Section 151 was filed before the learned Judge of the Appellate Court wherein such case was made out by SPMPK to defend their action of taking possession. 30. From the submissions made by SPMPK, as recorded in the impugned order, it also does not appear that the possession was taken as the interim order passed in the aforesaid title suit lost its force with the rejection of plaint. 31. On the other hand, it was the submission made on behalf of SPMPK that possession was taken as no stay order was passed in the appeal and the undertaking given was for a limited period. 32. While exercising the powers under Article 227 of the Constitution of India, this Court has to test the propriety of the impugned order on the basis of the materials placed before the learned Judge of the appellate court. A party cannot be allowed to make out a new case on facts at the time of hearing of an application under Article 227 of the Constitution of India which was neither pleaded nor raised before the appellate court. This Court is, therefore, not inclined to accept the contention of Mr. Dutta that the possession of the property in question was taken since the interim order passed in the said title suit lost its force. 33. The Hon’ble Division Bench of this Court in Sujit Pal vs. Prabir Kumar Sun reported at AIR 1986 Cal 220 after noticing that the defendant forcibly dispossessed the plaintiff in violation of the order of injunction and took possession of the property, directed the restoration of possession to the plaintiff with the aid of police. The Hon’ble Division Bench further observed that no technicality can prevent the Court from doing justice in exercise of its inherent powers. 34. A Full Bench of the Hon’ble Madras High Court in Century Flour Mills Ltd. v. S. Suppiah, reported at AIR 1975 Mad 270 held that where an act is done in violation of an order of stay or injunction, it is the duty of the Court, as a policy, to set the wrong right and not allow the perpetuation of the wrong doing. It was held that the inherent power of the Court is not only available in such a case but it is bound to exercise it to undo the wrong in the interest of justice. 35. The Hon’ble Supreme Court in Delhi Development Authority (supra) after noticing the decision in Sujit Pal (supra) and Century Flour Mill (supra) held that mandatory direction given for restoration of possession to the aggrieved party to prevent the abuse of process of law is a salutary rule that has to be applied and given effect to by the Court, if necessary, by overruling any procedural or other technical objections. 36. From the aforesaid discussion it follows that a mandatory direction for restoration of possession to the aggrieved party can be passed to prevent the abuse of the process of law. 37. Turning back to the case on hand, this Court finds that possession of the property was taken by SPMPK forcibly during the pendency of the appeal and in breach of the undertaking given on behalf of SPMPK to the Court that the execution will not be proceeded with. Page 10 of 11 38. In Balwantbhai Somabhai Bhandari (supra) the Hon’ble Supreme Court reiterated the proposition of law that if a party or solicitor or counsel on his behalf so as to convey to the Court a firm conviction that an undertaking is being given, that party will be bound and it will be no answer that he did not think that he was giving it or that he was misunderstood. The Hon’ble Supreme Court further held that the breach of an undertaking given to a Court by a person in a pending proceeding on the faith of which the Court sanctions a particular course of action is misconduct. 39. In the case on hand, on the faith of the undertaking given by SPMPK that the execution will not be proceeded with the Appellate Court did not pass an order of stay. Breach of such undertaking would amount to a misconduct and in such situation it is the duty of the Court to undo the wrong by restoring the status quo ante. 40. The learned Judge was right in holding that breach of an undertaking is nothing but acting in disobedience of an order passed by the Court. In view of the aforesaid discussion this Court holds that SPMPK took possession of the property in question de horse the due process of law. 41. The learned Judge of the appellate Court was right in holding that SPMPK has acted in breach of the solemn undertaking given to the appellate court on 13.05.2025 and the action of taking forcible possession on 01.07.2026, without leave of the Court, is illegal and an abuse of the process of law. 42. In Sri Krishnan (supra) the Hon’ble Supreme Court reiterated the well settled proposition of law that any admission made in ignorance of legal rights or under duress cannot bind the maker of the admission. It is not the case of SPMPK that the undertaking was given in ignorance of legal rights or under duress. Thus, the said decision cannot come to the aid of the petitioner. 43. The learned Judge of the appellate court assigned cogent reasons in support of the ultimate conclusion. The impugned order does not suffer from any infirmity warranting interference under Article 227 of the Constitution of India. 44. C.O. No. 2552 of 2026 stands dismissed without, however, any order as to costs. 45. Urgent photostat certified copy of this judgment be supplied to the parties, if applied for, after compliance of all the formalities. (HIRANMAY BHATTACHARYYA, J.)