Calcutta High Court (Appellete Side)
Nitya Nanda Maity & Anr vs Smt. Sarita Singh & Ors on 10 February, 2012
Author: Soumen Sen
Bench: Soumen Sen
1
10.02.12
Basudev
C.O. 1374 of 2011
&
C.O. 1475 of 2011
Nitya Nanda Maity & Anr.
VS
Smt. Sarita Singh & Ors.
Mr. Aniruddha Chatterjee,
Mr. Rahul Karmakar
- For the Petitioners.
Mr. Arabinda Ray
- For the Opposite Parties.
Both the matters are taken up together for hearing and the matters are
disposed of by a common judgment.
Two revisional applications have been filed by the petitioners
challenging the orders dated October 5, 2010 and April 13, 2011.
Curiously enough, the order dated October 5, 2010 was challenged
by the petitioners only on May 4, 2011 after the said order had merged with
the order dated April 13, 2011 and in view of the recording by the learned
Court below that since there is no appeal to the order dated April 13, 2011
the petitioners are not aggrieved by the order that was passed on October 5,
2010.
On October 5, 2010 the learned Appellate Court considered an
application filed by Sarita Singh praying for interim injunction restraining
the defendants to the suit from disturbing the possession of the plaintiffs and
not to take any steps from dispossessing them from the suit premises
although a Power of Attorney appears to have been executed by Sarita Singh
prior to September 27, 2010. However, prior thereto she executed a Power of
2
Attorney in favour of Arbinda Ray who is an advocate. If the Power of
Attorney was already there it is unclear as to why Sarita Singh signed the
petition on September 27, 2010 since under such power she had delegated all
powers and authority to sign, verify any petition and other matters in favour
of the Power of Attorney holder.
The appeal was preferred in view of refusal to pass an interim order
in favour of the appellant. In the appeal on October 5, 2010 an ad-interim
order was passed by the learned 1st Appellate Court in presence of the
respondents restraining the petitioners and their men, servants and agents
from disturbing the peaceful possession of the appellants-plaintiffs in respect of the suit premises. In passing the said interim order on October 5, 2010, the learned Court below had taken into consideration a Medical Certificate showing some injuries been caused to the plaintiff's left eye and also an order was passed by the learned Executive Magistrate in M. P. Case no. 1481 of 2010. The order proceeds on the basis that the petitioners were in possession of the suit property, although the aforesaid documents by itself would not show possession of the plaintiff in respect of the suit property. The address mentioned in the said documents are self declaration. In the meantime, the plaintiff alleged that she was dispossessed by the defendants and their men, servants and agents and filed an application under Section 151 of the Code of Civil Procedure for restoration of possession. The said application was filed on April 13, 2011 in which the said order for restoration was passed.
This order of restoration is a subject-matter of challenge in C.O. 1374 of 2011. In the application for restoration of possession the plaintiffs alleged that on April 7, 2011 when the lawful Attorney meaning thereby Arabinda Ray went to visit the suit property he could ascertain that the petitioners with a few others broke open the padlock and entered the room and had taken away the almirah and other belonging of the plaintiffs from the suit room. Immediately thereafter at 12.45 A.M. a complaint was lodged 3 with the local police station. The plaintiffs also claimed to have taken up various steps with the police authorities including the Joint Commissioner of Police. The plaintiff alleged that in view of violation the order of injunction existing in his favour, it became necessary for her to file an application for restoration of possession with the police help and accordingly, an application was filed. This time it was filed by the Power of Attorney Holder. The petitioner submits that the law is well settled on this point in view of the in AIR1986 CAL 220. The plaintiff has relied upon the paragraph nos. 8, 9 & 14 of the said decision in which Their Lordships considering the fact situation upheld the order of the learned single Judge in passing a mandatory injunction under Section 151 of the C.P.C. by directing the appellants to restore possession of the premises-in-question to the opposite parties. In the said decision, the suit was for declaration of tenancy right and permanent injunction restraining the defendants from interfering with the possession of the opposite parties in respect of the suit premises. The plaintiff in the said suit claimed that they were tenants in respect of the suit property and the defendants had been trying to interfere with the possession of the said plaintiff and in view of that the suit was filed in which it appears that an order of injunction was granted in favour of the plaintiff. However, in violation of the said order, the defendants forcibly took possession of the suit premises and prompted the plaintiff therein to file one application under Order 39 Rule 1 & 2 and the other under Section 151 of the C.P.C. praying for restoration of possession which was allowed.
By the learned trial Court resulting in the appeal being preferred in the Hon'ble High Court. The Division Bench upheld the order of the learned trial Judge.
Mr. Chatterjee's grievances in this application are that on the date when this application under Section 151 was moved, his client was not given any opportunity to controvert the allegations made in the said petition 4 inasmuch as prior thereto his client filed an application on March 7, 2011 for removing the application from the ex parte board and to take on record the reply to the show-cause and other objections so that the appeal can be disposed of as expeditiously as possible. It seems that the learned Appellate Court did not take such fact into consideration while disposing of the application under Section 151 of the C.P.C. It was open for the 1st Appellate Court prior to the passing of the order dated April 13, 2011 to take into consideration the facts stated in the application filed on March 7, 2011 and the appeal could have been decided on merits itself.
Mr. Chatterjee questions the locus of the Power of Attorney Holder to prefer the said appeal. Mr. Chatterjee submits that although from the plaint it would appear that Sarita Singh is not the tenant in respect of the suit premises and Bimalesh Kr. Singh is still alive who according to Sarita is a tenant in respect of the suit premises. Bimalesh did not file the suit or any application. Sarita had no right to file the suit or execute any power of attorney. It is only natural that Bimalesh would have come forward and make such claim. Mr. Chatterjee however disputes the right being claimed either by Sarita or by anyone else as the tenant in respect of the suit since Partha Pratim Ghosh alias Bapi had purchased the suit premises from one Gitanjali Halder and no tenancy whatsoever was existing in favour of Sarita Singh or Bimalesh Kr. Singh. In fact, he would contend that by reason of an agreement of relinquishment of tenancy executed by Arabinda Singh in the year 2010 in favour of Partha Pratim Ghosh the tenancy in respect of the suit property stands extinguished and the said Partha Pratim Ghosh was the owner of the suit property. He would, further, contend that there is no existence of Bimalesh Kr. Singh in respect of the suit property at all.
However, Mr. Ray who is the Power of Attorney Holder and appearing in person in the matter submits that while passing the order under Section 151 of the C.P.C, the learned Court below had the occasion to 5 consider a large number of documents relied upon by him which are as follows:
1) Voter Identity Cards of four persons.
2) The Order of the learned Executive Magistrate in M.P. Case No. 1481 of 2010.
3) A caveat lodged by Sandip Bhattacharya.
4) The character certificate in favour of Bonny Singh, daughter of Bimalesh Kr. Singh.
5) L.O.I. of Kolkata Municipal Corporation in favour of Gita Rani Halde5r as a lessee.
6) Birth Certificate of Bonny singh, daughter of Bimalesh Kr. Singh.
7) A Telephone Bill dated May 12, 2002.
8) Records & Evaluation Certificate issued by S.S. Jalan Higher Secondary Valika Vidyalaya, 2008-09.
9) Medical Certificate showing assault on August 12, 2010.
However, I am unable to accept the submissions on behalf of the petitioner on this Score since the same is not reflected from the order passed in the application under Section 151 of the C.P.C. The petitioner should have been given a reasonable time to contest the proceeding by filing written objection and thereafter to consider such application under Section 151 of the C.P.C. unless there are compelling reasons for passing an order in the mandatory form on the date when such application is filed. The law on the subject is well settled in a Division Bench judgment of our High Court, reported in AIR 1985 CAL. 248 in the case of Indian Cable Company Limited - VS -Smt. Sumitra Chakraborty which is implied by the Hon'ble Supreme Court in the case of Dorab Cawasji Warden - VS - Coomi Sorab Warden and others reported in AIR 1990 S.C. 867. In the said decision, the Hon'ble Supreme Court laid down the following guidelines for considering a 6 relief of interlocutory mandatory injunction in paragraphs 14 & 15 which are set out below;
P.14. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are :
(1) The plaintiff has a strong case for trial.
That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.
(2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.
(3) The balance of convenience is in favour of the one seeking such relief.
P.15. Being essentially an equitable relief the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the Court to be exercised in the light of the facts and circumstances in each case.
Though the above guidelines are neither exhaustive or complete or absolute rules and there may be exceptional circumstances needing action, applying them as pre-requisite for the grant or refusal of such injunction would be a sound exercise of a judicial discretion.
7It is also an unusual feature that the husband of the plaintiff who is claimed to be the tenant did not file the suit. It is also quite unusual that when Sarita has decided to prefer the appeal on September 27, 2010 she signed the papers although earlier to that she claimed to have executed the Power of Attorney in favour of Arabinda Ray. There is also some doubt with regard to the possession of the property by Sarita although in 1995 Sarita and Bimalesh claimed to reside in the said premises on the basis of the Voter Identity Card. Whether there has been any subsequent relinquishment of right by either of the parties or not in favour of the opposite parties that is for the Court to decide at an appropriate stage. There are some documents which show that Bimalesh and Sarita had some nexus with the suit premises. It cannot be said that they had no nexus with the suit property at all. But these are the matters which are required to be gone into when the appeal is finally decided by the learned trial Court.
Accordingly, the learned 1st Appellate Court is directed to re-hear the application under Section 151 of the C.P.C. as also the appeal and pass any appropriate order in the said application upon consideration of the materials on record.
The reply to the show-cause sought to be tendered by Mr. Chatterjee's client should be accepted and taken on record.Mr. Chatterjee's client would file his objection to the application under Section 151 of the C.P.C. within seven days from date.
The learned 1st Appellate Court should fix a date of hearing immediately thereafter. The learned 1st Appellate Court should also hear both the applications filed under Section 151 of the C.P.C. and the other under Order 39 Rule 1 & 2 of the C.P.C. and if possible dispose of the appeal as expeditiously as possible. The learned Judge would also consider 8 appointment of a special officer in the matter if he thinks fit and proper under the facts and circumstances of the case.
Till the appeal is heard out, there shall be an order of injunction restraining either of the parties from transferring, alienating and/or encumbering the suit property whatsoever. This order is in addition to the order dated October 5, 2010 passed by the learned 1st Appellate Court.
I also make it clear that I am not interfering with the order passed on October 5, 2010 in C.O. No. 1374 of 2011. The application being no. 1475 of 2011 is allowed to the extent as indicated above. It is expected that learned 1st Appellate Court would make all endeavours to dispose of the pending application along with the appeal as expeditiously as possible preferably, within a period of eight weeks from the date of communication of this order.
The learned 1st Appellate Court would decide all the applications and the appeal being uninfluenced by any observation made in this order.
Urgent xerox certified copy of this order, if applied for, be given to the parties upon compliance of necessary formalities.
(Soumen Sen, J.)