IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION APPELLATE SIDE Present: The Hon’ble Justice Ajay Kumar Gupta C.O. No. 822 of 2025 Pallab Sana Versus Sri Nishant Pasari and Ors. For the Petitioner : Mr. Sounak Bhattacharya, Adv. Ms. Sormi Dutta, Adv. Mr. Sumitava Chakraborty, Adv. Mr. Sounak Mondal, Adv. Ms. Bipasha Bhattacharyya, Adv. For the Opposite Party No. 2 : Mr. Saptansu Basu, Sr. Adv. Mr. Gopal Pahari, Adv. Ms. Mandeep Kaur, Adv. Mr. Jagatjyoti Nag, Adv. Heard on : 27.08.2026 Judgment on : 23.09.2026 Uploaded on : 23.09.2026 Ajay Kumar Gupta, J.:- 1. The instant application under Article 227 of the Constitution of India, filed by the plaintiff/petitioner, is directed against the judgment dated 2 12.12.2024 passed by the Learned Additional District Judge, 1st Track, 2nd Court, Alipore, South 24 Parganas in Miscellaneous Case No. 92 of 2024 arising out of Title Appeal No. 100 of 2019 (Sri Pallab Sana Vs Sri Nishant Pasari). 2. By the said judgment, the Appellate Court dismissed the Miscellaneous Case filed by the petitioner under Order 39 Rule 2A of the Code of Civil Procedure (In Short, ‘CPC’) on 2-fold grounds. Firstly, the Petitioner did not provide the specifications of the alleged constructed area, and practically, there is no evidence as to who among the opposite parties took part in the alleged wilful and deliberate violation of the injunction order. Secondly, the record does not indicate the actual period when the opposite parties allegedly violated the injunction order. No specific period is stipulated in the application filed by the petitioner. Accordingly, the petitioner failed to prove that the opposite parties wilfully disobeyed and violated the injunction order. 3. The brief facts of the case are that a Title Suit No. 199 of 2015 was filed at the behest of plaintiff /petitioner before the learned 2nd Court of Civil Judge (Jr. division) at Alipore for declaration that the plaintiff is a monthly tenant in respect of the suit property as mentioned in the schedule of the plaint being ALL THAT 3 brick built structure of partly tiled, partly tin and partly asbestos roof lying and situated at 3 premises No. 16, Mondal Temple Lane, Police station new Alipore, Kolkata-700053, within Kolkata Municipal Corp. Ward no. 81 and permanent Injunction and damages. 4. The Trial Court passed an ad-interim injunction against the defendants in an application filed under Order 39 Rules 1 and 2 of CPC, restraining the defendants/opposite parties from obstructing the petitioner’s peaceful possession of the suit property and from ousting the plaintiff therefrom for a limited period, and the same was extended from time to time till disposal of the suit in favour of the plaintiff. 5. The defendants, upon receipt of summons, appeared before the Trial Court for contesting the title suit by filing a written statement. However, the defendants subsequently did not appear; as such, the matter was heard ex parte. The Title Suit was finally decreed ex parte in favour of the petitioner, in part declaring that the plaintiff/petitioner is a tenant in respect of the suit property. However, no decree was passed with regard to the prayer for permanent injunction. 6. Feeling aggrieved by the said part decree, the plaintiff/petitioner filed an appeal against such decree resulting in registration of Title Appeal No. 100 of 2019. The said appeal was preferred with an application under Order 39 Rules 1 and 2 of CPC, praying for a similar ad- 4 interim order as passed by the Trial Court. Upon being satisfied by the appellant, the Appellate Court passed an ad interim injunction against the opposite parties dated 14th June, 2019. The opposite parties appeared and filed their cross-objection beyond the period of limitation. 7. Having full knowledge of the interim order passed by the Trial Court and Appellate Court, the defendants/opposite parties continuously and in utter violation disobeyed the injunction order by effecting construction over the suit property with further mala fide intention to oust the plaintiff therefrom. Several complaints were lodged before the local police station with regard to violation of the court’s order. 8. The opposite parties are constructing the building over the land, including the suit property involved in the appeal, ignoring and violating the specific order of injunction. As such, an application under Order 39 Rule 2A has been filed by the petitioner before the Appellate Court. However, the Appellate Court outrightly rejected the application with the aforesaid observation. Hence, petitioner seeks direction to set aside the impugned judgment and pass the necessary order for wilful and contumacious violation of the interim orders. 9. Learned counsel representing the petitioner submitted that the Appellate Court, without considering the admitted facts that the opposite parties are continuously carrying out the construction work 5 of building over the land, including the suit property, rejected the application whimsically and capriciously. 10. It was further submitted that the opposite parties had complete knowledge of the fact that the petitioner has been declared tenant in respect of the suit property. Despite this, they are continuously effecting construction in utter violation of the injunction order, although it is not necessary to prove any violation of the injunction order by adducing evidence. Rejection of the Misc. Case is only to avoid punishment pursuant to the provisions stipulated under Order 39 Rule 2A CPC. 11. The defendants/opposite parties intentionally filed another Title Suit being Title Suit No. 666 of 2020 in 1st Civil Judge (Sr. Div) at Alipore against the petitioner as defendants seeking recovery of possession in respect of 2035 sq. ft. from petitioner but remained silent about the remaining 2965 sq. ft. out of 5000 sq. ft., which is a clear admission by the opposite parties of violation of the injunction order passed by the Appellant Court and Trial Court. 12. Learned Counsel has placed reliance upon the following judgments to bolster his submissions:- i. Aligarh Municipal Board & Ors. v. Ekka Tonga Mazdoor Union & Ors.1; 1 (1970) 3 SCC 98; 6 ii. Md. Sahajahan v. Md. Sarafat Hussain and Ors.2. 13. Learned Sr. Advocate, Mr. Saptansu Basu, appearing on behalf of the opposite parties, on the other hand, submitted that the application filed by the petitioner has been rightly rejected by assigning valid and sound reasoning. The Appellate Court has applied a judicious mind. 14. It was further submitted that the present revisional application against the rejection of application filed under Order 39 Rule 2A of the CPC is not maintainable as the order of refusing, granting, modifying or discharging temporary injunction or penalizing disobedience under order 39 Rules 1, 2, 2A, 4 and 10 of the CPC is appealable order under 43 Rule 1 of the CPC. Therefore, same is liable to dismissed. 15. Learned senior counsel has placed reliance of a judgment passed in the case of Koushik Mutually Aided Cooperative Housing Society v. Ameena Begum & Anr.3 particularly in paragraph no. 18 to support his contention as under: - “18. When there is an express provision available under the CPC or any statute under which an appeal is maintainable, by-passing the same, a Revision Petition cannot be filed. It is needless to observe that in the absence of an appellate remedy, a revision may be maintainable.” 16. Having heard the learned counsels for the respective parties and having gone through the materials on record as well as judgments 2 FMAT 2 of 2025; 3 2023 SCC OnLine SC 1662 7 relied upon by the parties, this Court is of the view that once an application under Order 39 Rule 2A of the CPC is rejected by the Appellate Court at the 1st appellate stage, then a revisional application will indeed be maintainable relying on the judgment referred to by the petitioner hereinabove. 17. Learned Senior Advocate appearing for the opposite parties has relied upon the judgment in Koushik Mutually Aided Cooperative Housing Society (Supra), particularly paragraph 18 thereof, for the proposition that where an express remedy of appeal is available under the Code or any statute, the same cannot be bypassed by resort to a revision. This contention, however, proceeds on the premise that an appeal lies against an order passed by an Appellate Court while exercising jurisdiction under Section 107(2) of the CPC in disposing of an application under Order 39 Rule 2A. That premise does not hold. Section 104(2) of the CPC expressly forbids any further appeal from an order passed in appeal, and the word "any" employed therein takes within its sweep interlocutory and interim orders as much as final orders. Consequently, where an application under Order 39 Rule 2A is rejected not by the Trial Court but by the Appellate Court in the exercise of its appellate power, no further appeal is maintainable against such an order, and it is in that narrow class of case, where the appellate remedy is not available, that a 8 revisional application is maintainable, consistent with the observation in Koushik Mutually Aided Cooperative Housing Society (Supra) itself that "in the absence of an appellate remedy, a revision may be maintainable." 18. The judgments relied upon by learned counsel for the petitioner, namely Aligarh Municipal Board & Ors. v. Ekka Tonga Mazdoor Union & Ors. (Supra) and Md. Sahajahan v. Md. Sarafat Hussain and Ors. (Supra), are found to support this position. The Hon’ble High Court in those judgments categorically held that Section 104(2) of the Code expressly forbids any appeal to be filed from any order passed in an appeal under the section and in view of the definition assigned to the word “Any” even against interlocutory or interim order apart from final order, no further appeal lies. Thus, the revisional application is maintainable against any order passed by the appellate court for which an appeal is provided under the Code of Civil Procedure, and an order cannot be challenged by further appeal having been passed by the Appellate Court in exercise of the power under section 107 (2) of the Code. 19. The Defendants appeared through learned advocate and had specifically stated before the learned court by filing written objection that Sri Sana was never a tenant of the said alleged three structures, having an area of 5000 sq. ft. Actually, he was a tenant/occupant of 9 about 100 sq. ft. structure, which he had surrendered by handing over possession thereof at a consideration of Rs.15,00,000/-. He was never an owner of the said premises being No.16, Mondal Temple Lane or any of its part thereof. He had no authority to execute the alleged letter of attornment dated 5th July, 2011. He had wrongfully claimed himself to be the owner of the said premises in the said letter of attornment. He was not entitled to induct any tenant in the said property. 20. It was on the strength of the alleged letter of Attornment dated 5th July, 2011, that the appellant/plaintiff/petitioner had purportedly instituted a Title Suit being T.S. no. 199 of 2015, whereby the Trial Court partly decreed in favour of the petitioner ex parte without allowing a decree for permanent injunction. In the said suit, the plaintiff also obtained an ex parte ad-interim order of injunction dated 16th March, 2017 by suppressing the material facts. The construction of the building was going on at the said premises in full swing from the year 2014. The plaintiff/petitioner never approached the Trial Court for any order of injunction or violation of the order because the opposite parties were/are constructing their own separate portions. 21. The opposite parties’ specific case is that one Sanjib Kr. Laha was the sole and absolute owner of the piece and parcel of land having an 10 area of 1 Bigha, 7 Cottahs, 2 Chittacks and 6 Square Feet, equivalent to 19536 Sq. Ft., comprising several cemented pucca structures measuring to a total of about 13100 Sq. Ft. at Premises No.16, Mondal Temple Lane, Kolkata -700053. By virtue of six indentures, all dated 1st July, 2011, the opposite parties had purchased the said property and mutated their names in the record of Kolkata Municipal Corporation as owners. On 15th September, 2011, the opposite parties appointed a promoter for construction of a multi-storied building in the said property and, in accordance with the development agreement, vacant possession of the said property was handed over to the said promoter. The building plan was sanctioned over the said property by the competent authority. 22. Considering the facts as stated by the parties, it is clear that the petitioner stood declared a tenant in respect of the schedule property involving 5000 sq. ft. Whereas, the whole property of the Opposite Parties is equivalent to 19536 Sq. Ft., comprising several cemented pucca structures measuring about 13100 Sq. Ft. at Premises No.16, Mondal Temple Lane, Kolkata -700053. One Title Suit being No. 666 of 2020 and Title Appeal No. 100 of 2019 are pending by and between the parties. There was an interim order, during the pendency of Title Suit No. 199 of 2015, filed by the petitioner, where an interim order was initially passed on 16th March, 2017. The said interim order was 11 extended from time to time. Apart from that, the Appellate Court has also passed an interim order on 14th June, 2019, in Title Appeal no. 100 of 2019, and the same is continuing. None of the defendants/opposite parties filed an application for vacating the interim order, whatsoever. 23. It is revealed from the record that the Petitioner filed an application under Order 39 Rule 2A of the CPC read with Section 151 of the CPC on 20.02.2024 praying for detaining the opposite parties in Civil prison and for attachment of properties of the opposite parties and for compensation, admittedly without disclosing the specific period from when the construction is going on over the land including the suit property involved in the Title Appeal. No commission was prayed for from the Appellate Court to measure the area of the suit property to ascertain the actual picture of construction as well as wilful and deliberate violation of the injunction order passed either by the Trial Court or Appellate Court. The Petitioner himself prayed before the appellate court to decide the Misc. Case without adducing evidence from the side of the petitioner, and based on admission of the opposite parties that the construction was going on the site, a necessary order is to be passed. 24. It is true that, without a clear picture of the particular time or period when the interim order was violated by the opposite parties or true 12 evidence as regards violation, the court cannot come to a final conclusion that the opposite party or parties have wilfully and deliberately violated the interim orders as alleged and punished them accordingly. 25. It is well settled that proceedings under Order 39 Rule 2A of the CPC are quasi-criminal in nature, and a finding of wilful and deliberate disobedience cannot be founded on a mere admission of construction activity, absent evidence establishing (i) the period during which such construction took place, and (ii) that it fell within the currency of, and in breach of, the subsisting injunction. In the absence of any such particulars or evidence on record, this Court finds no infirmity in the view taken by the Appellate Court that the petitioner failed to establish wilful and deliberate violation of the injunction order by the opposite parties. The reasoning of the Appellate Court, being founded on cogent and relevant considerations, does not warrant interference in the exercise of supervisory jurisdiction under Article 227 of the Constitution of India, the scope of which is confined to cases of patent perversity, jurisdictional error, or grave miscarriage of justice, none of which is made out on the facts of the present case. Therefore, the Appellate Court rightly and correctly rejected the application with valid and cogent reasons. Consequently, the revision application fails. 13 26. Accordingly, C.O. No. 822 of 2025 is, thus, dismissed. Connected applications, if any, are also, thus, disposed of. 27. The judgment dated 12.12.2024 passed by the Learned Additional District Judge, Fast Track 2nd Court, Alipore, South 24 Parganas in Miscellaneous Case No.92 of 2024 arising out of Title Appeal No.100 of 2019 (Sri Pallab Sana Vs Sri Nishant Pasari) calls for no interference and the same is hereby affirmed. 28. Let a copy of this Judgment be sent to the Learned Appellate Court for information. 29. Interim order, if any, stands vacated. 30. All parties will act on the server copies of this Judgment duly downloaded from the official website of this Hon’ble High Court. 31. Urgent photostat certified copy of this Judgment, if applied for, is to be given as expeditiously to the parties on compliance of all legal and necessary formalities. (Ajay Kumar Gupta, J.) (P.A.)