02.09.2026 Ct. No. 655 S.L. No.69 AMR CO 4386 of 2025 Shyamali Tripathi & Ors. -vs- Janmenjay Roy & Ors. Mr. Golam Mustafa Mr. Tarasankar Samanta Kazi Asif Iqbal …for the Petitioners Mr. Prasenjit Mukherjee Mr. Tarak Nath Sarkar Ms. Babita Pramanik …for the Opposite Parties 1. Heard learned Advocate for the parties. 2. The instant civil revisional application under Article 227 of the Constitution of India has been preferred by the plaintiffs/petitioners challenging the impugned order dated 05.04.2025 passed by the learned First Appellate Court in connection with Misc. Appeal No. 45 of 2025, whereby the operation of the order dated 12.02.2025 passed by the learned Trial Court was stayed. 3. The plaintiffs/petitioners instituted the suit in respect of the ‘Ka’ Schedule and ‘Kha’ Schedule properties, as more fully described in the plaint. It is the specific case of the plaintiffs that the ‘Ka’ Schedule property provides necessary lateral support to the ‘Kha’ Schedule property, over which the plaintiffs are in possession and have constructed their dwelling house. According to the plaintiffs, any substantial alteration or excavation of the ‘Ka’ Schedule land may adversely affect 2 the stability and structural safety of the ‘Kha’ Schedule property and the dwelling house standing thereon. 4. It is further submitted on behalf of the plaintiffs/petitioners that the land described as ‘ABCD’ in the sketch map annexed to the plaint has been continuously used by them for more than 70 years as a passage for ingress to and egress from the ‘Kha’ Schedule property. The plaintiffs claim that such long-standing user has been uninterrupted and that the said passage constitutes an important means of access to their dwelling house. 5. The grievance of the plaintiffs is that the defendants/opposite parties, all of a sudden, commenced excessive excavation of the land in question. According to the plaintiffs, such excavation, if permitted to continue, may impair or destroy the lateral support available to the ‘Kha’ Schedule property and may consequently endanger the dwelling house standing thereon. It is also apprehended that any alteration in the existing physical features and nature of the property during the pendency of the suit may cause serious prejudice to the plaintiffs and may lead to complications which may not be capable of being adequately remedied at a later stage. 6. In the aforesaid circumstances, the plaintiffs/petitioners approached the learned Trial Court by filing an application under Order XXXIX Rules 1 and 2 read with Section 151 of the Code of Civil Procedure, 1908, seeking an interim order of injunction restraining the 3 defendants from carrying out any excavation or otherwise altering the nature and character of the property in a manner prejudicial to the rights and interests claimed by the plaintiffs. Upon consideration of the materials placed before it, the learned Trial Court allowed the said application by passing the order dated 12.02.2025. 7. Being aggrieved by and dissatisfied with the aforesaid order of the learned Trial Court, the defendants preferred an appeal before the learned First Appellate Court, being Misc. Appeal No. 45 of 2025. During the pendency of the said appeal, the learned First Appellate Court, by the impugned order dated 05.04.2025, stayed the operation of the order dated 12.02.2025 passed by the learned Trial Court. 8. The principal grievance of the plaintiffs/petitioners before this Court is that, upon stay of the order of injunction passed by the learned Trial Court, the defendants may alter the nature, character and physical condition of the property during the pendency of the Misc. Appeal, thereby creating a fait accompli and frustrating the very purpose of the interim protection sought by the plaintiffs. It is submitted that the controversy essentially concerns preservation of the existing state of affairs until the First Appellate Court examines the matter on merits. In such circumstances, preservation of the property in its existing condition would be in the interest of justice and would also prevent either party from taking advantage of any alteration made during the pendency of the appeal. 4 9. It is, however, brought to the notice of this Court that the plaintiffs/opposite parties have already entered appearance in Misc. Appeal No. 45 of 2025 and have also filed their written objection therein. Thus, the appeal is ripe for consideration and there appears to be no impediment in directing the learned First Appellate Court to take up and dispose of the same expeditiously after affording reasonable opportunity of hearing to all concerned parties. 10. Having regard to the nature of the dispute and without entering into the merits of the respective claims of the parties, this Court is of the view that an appropriate interim arrangement is necessary so that the subject matter of the dispute is not altered or disturbed during the pendency of the Misc. Appeal. Such an arrangement is necessary not for adjudicating the rights of either party, but only for preserving the subject matter of the litigation and maintaining the balance between the parties until the competent appellate forum considers the matter in accordance with law. 11. Accordingly, the learned First Appellate Court is directed to dispose of Misc. Appeal No. 45 of 2025 as expeditiously as possible, preferably within a period of one month from the date of communication of this order, after giving adequate opportunity of hearing to both the parties. 12. In the meantime, and without expressing any opinion on the merits of the respective contentions of the 5 parties, there shall be an interim order of status quo with regard to the nature, character and possession of the property in question until the disposal of Misc. Appeal No. 45 of 2025 by the learned First Appellate Court. The parties shall accordingly maintain the existing state of affairs and shall not take any steps which may alter the nature, character or possession of the suit property during the subsistence of the aforesaid interim arrangement. 13. It is made clear that this Court has not adjudicated upon the merits of the rival claims of the parties, including the claim of the plaintiffs with regard to lateral support, their alleged long-standing user of the ‘ABCD’ passage for ingress and egress, or the allegation regarding excessive excavation. All such questions are left open for consideration by the learned First Appellate Court. The learned First Appellate Court shall decide the Misc. Appeal and the connected application independently, strictly in accordance with law and on the basis of the materials available before it, without being influenced in any manner by any observation made in this order. 14. At this stage, learned Advocate appearing for the opposite parties raises objection with regard to certain factual and legal contentions advanced on behalf of the petitioners during the course of hearing. Such objection is noted. Since the present order is confined to preservation of the subject matter and expeditious disposal of the pending Misc. Appeal, no finding is being recorded on such disputed contentions. 6 15. With the aforesaid observations and directions, the instant civil revisional application, being C.O. 4386 of 2025, stands disposed of. 16. Let a copy of this order be transmitted to the learned Court below forthwith for information and necessary compliance. 17. There shall be no order as to costs. 18. Urgent Photostat certified copy of this order, if applied for, be given to the parties on payment of requisite fees. (Prasenjit Biswas, J.)