SEKH MATIYAR RAHAMAN AND ANOTHER vs JAYANTA KARURI AND OTHERS

D/L.15.
November 12, 2026.
MNS
.

FMAT No. 324 of 2026
+
CAN 1 of 2026
+
CAN 2 of 2026

Sekh Matiyar Rahaman and another
Vs.
Sri Jayanta Karuri and others


Mr. Prosenjit Mukherjee,
Mr. Ziaul Haque, Advs.

… for the appellants.

Mr. Subir Sabud,
Mr. Surajit Maity,
Ms. Tina Biswas, Advs.

…for the respondent nos. 1 and 2.


Re : CAN 1 of 2026 (condonation)

1. The affidavit-of-service filed today be kept on record.
2. The ground taken in the condonation application is
primarily that initially an appeal was filed against the
impugned order, passed under Order XXXIX Rules 1 and
2 of the Code of Civil Procedure, before the concerned
District Court, which was duly admitted.
3. However, subsequently, it was discovered that the
said Court did not have pecuniary jurisdiction to take up
the appeal and the appeal was dismissed.
4. The appellants preferred a revisional application
against such dismissal but subsequently withdrew the
same on legal advice and have preferred the present
appeal against the original order.

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5. Upon hearing learned counsel for the parties, we find
sufficient explanation for the delay having been furnished,
inasmuch as the appellants erroneously proceeded before
a wrong forum. The bona fides of the appellants in doing
so was borne out by the fact that such erroneous
challenge was initially admitted by the concerned Court.
6. Hence, CAN 1 of 2026 is allowed, thereby condoning
the delay in preferring FMAT No. 324 of 2026.
7. There will be no order as to costs.

Re: FMAT No. 324 of 2026
8. The appeal is now taken up for hearing under Order
XLI Rule 11 of the Code of Civil Procedure.
9. The appeal is admitted to be heard on the grounds
taken in the memorandum of appeal.
10. On consent of the parties, we take up the appeal
itself for hearing.
11. The short question involved is whether the learned
Trial Judge was justified in refusing ad interim injunction in
a suit for specific performance of contract filed by the
plaintiffs/appellants.
12. Learned counsel appearing for the appellants
submits that the learned Trial Judge recorded in the
impugned order that a notarized agreement for sale dated
May 22, 2025 was produced before the court along with
Xerox copies of Aadhaar Card, Advocate’s letter dated
November 21, 2025 and postal receipts and reply.

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13. However, no injunction was granted on the ground
that no document was produced by the plaintiffs to show
that they took initiative to comply with the terms and
conditions of the agreement within the stipulated period.
14. Learned counsel appearing for the
defendants/respondents submits that the plaintiffs failed to
show that they have acted in terms of the agreement
between the parties or even performed their part of the
contract.
15. It is submitted that the agreement-in-question
contained a clause that a further sum of Rs. 2,00,000/-,
over and above the advance amount of equivalent sum,
was to be paid by the plaintiffs within two months from the
execution of the agreement. However, there is nothing in
the pleadings or the materials before the Trial Court to
indicate that any such payment was made.
16. Moreover, the first letter apparently written by the
plaintiffs to the defendants, which has been relied on in the
plaint and injunction application, was of the month of
November, 2025, that is, about four months after the
agreement, which itself indicates the lack of urgency.
17. Furthermore, it is argued that the plaintiffs have also
failed to show that any attempt has been made by the
defendants/respondents to transfer the property in favour
of third parties.
18. Insofar as submits that there is no proof of
possession being handed over to the appellants and it is
also absurd that upon payment of a paltry sum of

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Rs.2,00,000/- only, possession would be handed over,
taking into account the much higher consideration amount.
19. Upon perusing the materials on record and hearing
learned counsel for the parties, we find that in the
injunction application and the plaint, sufficient averments
as to urgency have been made out.
20. Moreover, a notarized agreement for sale was
produced by the appellants.
21. In a suit for specific performance of contract, as per
the proviso to Section 49 of the Indian Registration Act,
1908, the contract-in-question is not required to be
registered to be taken cognizance of or produced in
evidence as proof of such agreement.
22. Thus, the learned Trial Judge erred in law in
overlooking the legal effect of the agreement produced by
the plaintiffs/appellants, despite the same being
unregistered.
23. However, fact remains that no specific document was
produced to indicate that possession of the property was
handed over at any point of time in favour of the
appellants.
24. With regard to the alleged non-payment of the
additional amount of Rs. 2,00,000/- in terms of the
agreement, we find sufficient averments in the plaint and
the injunction application that the plaintiffs were always
ready and willing to pay the rest consideration amount to
the defendants and that they had given verbal intimations

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to the respondents repeatedly, requesting the latter to
execute a registered deed of conveyance.
25. At the ex parte stage of consideration of ad interim
injunction, it is the pleadings on oath of the plaintiffs which
are required to be looked into by the court for coming to a
conclusion, since at that stage the defendants do not have
any opportunity of placing their version before the court.
26. Proceeding from such perspective, a sufficiently
strong prima facie case has been made out for grant of
injunction with regard to the creation of third party interest.
27. However, at this stage, in consonance with the
arguments of the defendants, we do not find any positive
case of handing over possession in favour of the plaintiffs
being made out.
28. Accordingly, FMAT No. 324 of 2026 is partially
allowed on contest, thereby modifying the impugned order
dated January 30, 2026 passed by the learned Civil Judge
(Senior Division), First Court at Howrah in Title Suit No. 41
of 2026 to the effect that the defendants in the suit shall
remain restrained by an order of injunction from selling,
transferring, alienating and/or creating any third party
interest in respect of the property, which is the subject
matter of the disputed agreement, till disposal of the
temporary injunction application by the Trial Court.
29. The defendants shall file their written objection(s) to
the injunction application in the Trial Court as expeditiously
as possible, preferably within a fortnight from date.

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30. In the event such timeline is adhered to by the
defendants, it is expected that the learned Trial Judge
shall dispose of the temporary injunction application itself
by the end of December, 2026.
31. We make it clear that the merits of the respective
contentions of the parties have not been conclusively
decided by this Court and it will be open to the learned
Trial Judge to decide the temporary injunction application
on its own merits without being unduly influenced by the
observations made above.
32. Consequentially, CAN 2 of 2026 is disposed of as
well.
33. There will be no order as to costs.
34. Urgent Photostat certified copies of this judgment, if
applied for, be issued to the parties upon compliance of
requisite formalities.

(Md. Shabbar Rashidi, J.) (Sabyasachi Bhattacharyya, J.)