Calcutta High Court (Appellete Side)
Rajesh Kumar Pandey & Anr vs M/S. Nilma Vinimay Pvt. Ltd on 23 December, 2016
Author: Ashis Kumar Chakraborty
Bench: Ashis Kumar Chakraborty
1 23.12.2016
Sh-7 & P.J. In the High Court at Calcutta Civil Revisional Jurisdiction Appellate Side C.O. 4549 of 2016 With C.O. 4595 of 2016 Rajesh Kumar Pandey & Anr.
-Vs.-
M/s. Nilma Vinimay Pvt. Ltd.
Mr. S.P. Roychowdhury, Mr. Sakya Sen, Mr. Aniruddha Chatterjee, Mr. Rahul Karmakar, Mr. Rajesh Upadhyay, Mr. Subhadeep Basu ... for the petitioners Mr. Surajit Nath Mitra, Mr. Debjit Mukherjee, Mr. Somdeb Maity, Ms. Susmita Chatterjee, Ms. Dwipanita Ganguly ..for the opposite party Mr. Sabyasachi Bhattacharyya Mr. Tanmoy Mukherjee ...for the applicant in CAN 12171 of 2016 and CAN 12172 of 2016 Since both the revisional applications arise out of the various order passed in the same suit, between the petitioners and the opposite party, relating to the same suit property described hereinafter, the same are disposed of by this common order.
Both the revisional applications are at the instance of the defendants in Title Suit No. 1188 of 2016 (hereinafter referred to as "the said suit") filed by the plaintiff 2 opposite party and pending before the learned 4th Civil Judge (Junior Division) at Howrah.
I consider it to be convenient to refer to the parties by their array in the Court below. Briefly stated, the facts which give rise to these revisional applications are that on September 09, 2016 the plaintiff filed the said suit before the learned Court below claiming, inter alia, a declaration that it is the absolute owner and occupier of the plot of land, comprising of about 21 cottas, together with a structure thereon comprising 900 square feet at Holding No. 99/1, Dr. Abani Dutta Road (hereinafter referred to as "the suit property") and that the defendants have no right, title or interest over and in respect of the suit property and they are trying to encroach the suit property and a decree for permanent injunction restraining the defendants from entering into the suit property or to change the nature and character of the suit property by any type of construction thereon. In the plaint, it is the case of the plaintiff that the defendants are the owners of the property adjoining to the suit property, being premises No. 98, Dr. Abani Dutta Road. In the suit, the plaintiff also filed an application under Order 39 Rules 1 and 2, read with Section 151 of the Code of Civil Procedure, 1908 (in short "the Code") praying for, an order of injunction restraining the defendants and their men and agents from entering into the suit property and from changing the nature and character of the same by making any type of construction thereon. The plaintiff moved the said application before the learned Court below ex parte and on September 09, 2016 the learned Court below passed an ex parte order of injunction restraining the defendants from disturbing the peaceful possession of the plaintiff in respect of the suit property or from changing 3 the nature and character of the suit property till the returnable date, that is, November 05, 2016. The plaintiff was directed to comply with the provisions under Order 39 Rule 3(a) and (b) of the Code. On September 13, 2016 the plaintiff filed its affidavit, in compliance with the provisions under Order 39 Rule 3(a) and (b) of the Code along with postal receipts. On September 14, 2016 the plaintiff filed a petition before the learned Court below for putting up the case records and also moved an application under Section 151 of the Code alleging that after being informed of the said injunction order dated September 09, 2016 the defendants started to threaten them with dire consequences and to encroach the suit property and on September 13, 2016 the defendants attempted to raise boundary wall over the suit property causing encroachment of a substantiate portion thereof. In the said application the plaintiff prayed for, an order directing the Inspector-in-Charge, Golabari Police Station to ensure compliance of the said order dated September 09, 2016 passed by the learned Court below. In the said application, on September 14, 2016 the learned Court below passed an ex- parte order directing the Officer-in- Charge, Golabari Police Station to ensure implementation of the said order of injunction dated September 09, 2016 and that the police personnel to be sent to the suit property on regular interval of 72 hours to avoid breach of peace. On September 17, 2016 the plaintiff further filed a put up petition before the learned Court below and moved another application under Section 151 of the Code praying for, mandatory order of injunction directing the Officer-in-Charge, Golabari Police Station to assist it to demolish the wall put up by the defendants at the suit property in violation of the order dated September 09, 2016. By an order dated September 23, 4 2016 the learned Court below rejected the said application of the plaintiff on the grounds, inter alia, that there is no prayer in the plaint for an order of mandatory injunction, that allegation of encroachment is required to be proved by trial and evidence and that demolition/dismantling of alleged illegal boundary wall not part of ad interim injunction order. By the said order dated September 23, 2016 the learned Court below clarified that the order dated September 14, 2016 has been allowed and the police assistance extends to ensure no further change in the nature and character of the suit property. On November 05, 2016, that is, on the returnable date of the main injunction application, the plaintiff filed an application under Order 6 Rule 17 of the Code praying for, amendment of the plaint to incorporate, the alleged events taken place at the suit property subsequent to the passing of the said order dated September 09, 2016 and a relief for a decree for mandatory injunction. By order dated November 10, 2016 the learned Court below allowed the plaintiff's amendment application and directed the Dealing Assistant of the Court to release the summons with the amended plaint for service on the defendants. On November 15, 2016 the plaintiff filed another put up petition before the learned Court below and moved a further application under Section 151 of the Code praying for, an order granting liberty to it to remove the wall already existing within the suit property at its own expenses in police protection. The learned Court below fixed the hearing of the said application on November 25, 2016. On November 28, 2016 when the said application was taken up for hearing, it was recorded by the learned Court below that the copy of the amended plaint forwarded to the defendants were returned with an endorsement 'Refused'. By the ex-parte order dated November 28, 2016 the 5 learned Court below allowed the said application filed by the plaintiff under Section 151 of the Code and directed the Officer-in-Charge, Golabari Police Station to assist the plaintiff in dismantling the wall within the suit property towards the west of the suit property wherein RT Shed structure stand, at its own cost and that such assistance/action to be completed in one working day. By the said order the learned Court below also recorded that since the defendants refused to accept the delivery of the amended plaint the suit be placed for ex parte hearing on February 4, 2017.
After passing of the said order dated November 28, 2016 on December 9, 2016 the defendant no.2 filed an application before the learned Court below praying for, recalling of the orders dated September 14,2016 and November 28, 2016. He also filed an application praying for, stay of operation of the said ex parte orders dated September 14, 2016 and November 28, 2016. In the said applications the defendant no. 2 alleged that the writ of summons of the suit and the plaint were not tendered to him by any mode of service and he came to know about the suit and the order dated November 28, 2016 for the first time from officer of the local police. By order dated December 9, 2016 the learned Court below rejected the first application of the defendant no.2 praying for recalling of the said ex parte orders dated September 14, 2016 and November 28, 2016. Consequently, the second application of the defendant no. 2 praying for, stay of operation of the said two ex parte orders dated September 14, 2016 and November 28, 2016 became infructuous. Thereafter, on December 12,2016 the defendants filed the revisional application, being CO 4549 of 2016 ( hereinafter referred to as "the first revisional application") challenging the orders dated September 14, 2016, November 10, 2016 and November 28, 2016 6 passed by the learned Court below before this Court. On December 15, 2016 the learned Court below filed the revisional application, being CO 4595 of 2016 (hereinafter referred to as "the said second revisional application") challenging the aforementioned order dated December 9, 2016 passed by the learned Court below. After filing of the present revisional applications, on December 16, 2016 the defendants filed two separate appeals before the learned District Judge, Howrah, one against the ex-parte order of injunction dated September 9, 2016 passed by the learned Court below and the other, against the order dated November 28, 2016 passed by the learned Court below.
The present revisional applications were taken up for hearing by this Court at the late hours of December 16, 2016 and the hearing of the revisional applications were fixed on December 19, 2016. On December 19, 2016 when these applications were taken up for hearing Mr. S.N. Mitra, learned Senior Advocate appearing for the plaintiff and opposing the present revisional applications raised serious objection with regard to the maintainability of the first revisional application, as against the order dated November 28, 2016 passed by the learned Court below. It was urged that although the application of the plaintiff which was allowed by the order dated November 28, 2016 was described to be an application under Section 151 of the Code, but the same was in effect of an application under Order 39 Rules 1 and 2 of the Code for mandatory injunction and as such the said order dated November 28, 2016 is an appealable order under Order 43 Rule 1 of the Code. In support of such contention reliance was placed on behalf of the plaintiff on the judgment delivered by Bhaskar Bhattacharyya, J. (as His Lordship then was) in the case of Ravi 7 Maharia vs. Reliance Petroleum Ltd. & Ors. reported in 2000(1) CHN 439 (paras- 13, 14, 17, 18, 19 and 20) and another decision of a learned Single Judge of this Court in the case of CESC Ltd. vs. Sk. Salauddin reported in (2009)2 CLJ 536 ( para 19 at page 543). Reliance was also placed on the decision of the learned Single Judge of the Allahabad High Court in the case of Ishrat Husain Khan vs. Additional District Judge, Gorakhpur reported in AIR 1992 All 215 ( Paras 6 and 7 ) 218. Citing the decision of the Supreme Court in the case of Shaliny Shyam Shetty and Anr. vs. Rejendra Shankar Patil, reported in (2010) 8 SCC 329 (para-49) it was also urged that it is the well settled that while exercising jurisdiction under Article 227 of the Constitution, the High Court does not act as a Court of appeal over the Courts or Tribunals subordinate to it and in cases where an alternative statutory mode of redressal has been provided, that would also operate as a restraint on the exercise of the revisional jurisdiction by the High Court.
However, Mr. S.P. Roychowdhury, learned senior advocate appearing for the defendants submitted that although the said order dated November 28, 2016 is an appealable order under Order 43 of the Code and the defendants have already filed an appeal against the said order before the learned District Judge, Howrah but the same did not prevent the defendant no.2 to file an application under Section 151 of the Code for recalling of the said order dated November 28, 2016. It was urged on behalf of the defendants that when the options were open to the defendants to challenge the said order dated November 28, 2016 by approaching this Court in revisional jurisdiction and also to file an appeal against the same order it cannot be said that the present first revisional application as against the said order dated 8 Novevmber 28, 2016 is not at all maintainable. In support of such contention Mr. Roychowdhury relied on the decision of the Supreme Court in the cases of Bhanu Kumar Jain v. Archana Kumar & Anr. , reported in (2005) SCC 787 and Mahesh Yadav & Anr. v. Rajeshwar Singh & Ors., reported in (2009) 2 SCC 205 where the Supreme Court held a defendant in a suit suffering an ex-parte decree can challenge the decree before the appellate Court under Section 96(2) of the Code and can also file an application under Order IX Rule 13 of the Code for recalling of the ex-parte decree by the Court which passed the decree. It was further contended on behalf of the defendants that the orders passed by the learned Court below on September 14, 2016 allowing the plaintiff's application under Section 151 of the Code, the order dated November 10, 2016 allowing the plaintiff's amendment application and the order dated December 9, 2016 rejecting the application of the defendant no. 2 under Section 151 of the Code are not appealable under Order 43 of the Code and the present revisional applications of the defendants challenging all the said orders are well maintainable and, as such, the mere filing of the appeal by the defendants, before the learned District Judge, Howrah, against the order dated November 28, 2016 cannot be a ground not to entertain the challenge against the said order in the first revisional application.
In his reply to the point of maintainability of the first application with regard to the challenge against the order dated November 28, 2016, Mr. Mitra submitted that the learned counsel for the defendants did not dispute that the order dated November 28, 2016 passed by the learned Court below is an appealable order under Order 43 of the Code and the defendants could not distinguish, the decisions of this 9 Court in the cases of Ravi Maharia (supra) and CESC Ltd. (supra) or the decision of the learned Single Judge of the Allahabad High Court in the case of Ishrat Husain Khan (supra) or the decision of the Supreme Court in the case of Shaliny Shyam Shetty (supra). It was strenuously contended that in view of the specific provisions contained in Section 96(2) and Order 9 Rule 13 of the Code, the defendant in a suit having suffered an ex-parte decree can prefer an appeal from the said ex-parte decree and if can also to file an application for recalling of the ex-parte decree, but against an order of injunction under Order 39 Rules 1 and 2 the only remedy is to file an appeal under Order 43 of the Code. According to Mr. Mitra, therefore, none of the decisions of the Supreme Court in the cases of Vanu Kumar Jain (supra) and Mahesh Yadav (supra) dealing with the provisions of Section 96(2) and Order 9 Rule 13 of the Code has any application in the present case. On these grounds it was urged on behalf of the plaintiff that when the defendants themselves filed the appeal before the learned District Judge, Howrah against the order dated November 28, 2016 this Court would refuse to entertain the challenge made against the same order in the first revisional application.
With regard to the merit of the challenges made in this revisional applications against the impugned orders dated September 14, 2016, November 10, 2016 and November 28, 2016 passed by the learned Curt below Mr. Roychowdhury raised various contentions. He urged that it is well settled that a Court cannot pass any order directing for police help at the instance of any party to a suit or application, without any notice to the other side. According to Mr. Roychowdhury, the learned Court below committed an error of law apparent on the face of the 10 record by passing the impugned order dated September 14, 2016 directing the Inspector-in-Charge of the Golabari Police Station to ensure implementation of the injunction order dated September 09, 2016 without serving any notice on the defendants. It was also argued that the learned Court below acted in excess of its jurisdiction in passing the impugned order dated September 24, 2016 directing police help for implementation of the ad-interim order dated September 09, 2016. On the same grounds he also assailed the impugned order dated November 28, 2016. In support of such contention, he relied on the decision of two learned Single Judges of this Court in the cases of Goya Nath Ghosh v. Amulya Chandra Sen, reported in AIR 1957 Cal 252 and Panka Lal Bag v. Santosh Kumar Sikdar, reported n 1984 Cal
232. Mr. Roychowdhury further contended that when by the order dated September 23, 2016 the learned Court below rejected the prayer of the petitioner for mandatory injunction, the plaintiff motivatedly moved the amendment application without service on the defendants and obtained the said ex -parte order dated November 10, 2016. It was argued that in the instant case, there was no reason for the learned Court below to entertain the plaintiff's application for amendment of the plaint in the absence of the defendants and the ex-parte order dated November 10, 2016 allowing the amendment application of the plaintiff is vitiated by material irregularity.
Assailing the order dated November 28, 2016 Mr. Roychowdhury first contended that when by the order dated September 23, 2016 the learned Court below rejected the plaintiff's first application for mandatory injunction on the ground that 11 the allegation of encroachment is required to be proved by trial and evidence and that demolition/dismantling of alleged illegal boundary wall not part of ad-interim injunction order, the learned Court below committed an error of law, apparent on the face of the record, to entertain the second application praying for the same relief and to pass the impugned order dated November 28, 2016, that too, without any notice to the defendants. His second contention was that in its application under Section 151 of the Code filed on November 28, 2016 the plaintiff disclosed no photograph or any other evidence to substantiate that any wall was put up at its suit property, after September 09, 2016 and, as such, in the absence of any prima facie case being made out by the plaintiff the learned Court below had no scope to pass the impugned ex- parte mandatory order of injunction dated November 28, 2016. In addition to these grounds, Mr. Roychowdhury assailed the order dated November 28, 2016 also on the grounds which are common as against the order dated September 24, 2016 mentioned above.
Challenging the order dated December 09, 2016 it was submitted on behalf of the defendants that in the said application for recalling of the order dated November 28, 2016 they categorically stated that no summons and/or notice of the said suit has been tendered upon them and in view of such statement on oath the defendants had rebutted the presumption that they refused to receive the summons and copy of the original plaint or the amended plaint. Therefore, according to Mr. Roychowdhury without the examination of the Court bailiff or the postman who made the said remark "Refused" on the summons of the amended plaint, the learned Court below committed a patent error of law in passing the impugned order dated 12 December 09, 2016 on the ground that the defendants have failed to appear when the order dated November 28, 2016 was passed in favour of the plaintiff. In support of such contention, Mr. Roychowdhury cited the decision of the Supreme Court in the case Puwada Venkateshwar Rao vs. Chidamana Venkata Ramana reported in (1976)2 SCC 409.
It was also argued that in their application the defendants categorically stated that they are not the owners of the premises no. 98, Dr. Abani Dutta Road, P.S. Golabari and the said premises is owned by one Ratnakar Pandey and others, the defendants are the principal and vice principal of the school which is in exclusive occupation of the said premises and as such the suit is otherwise defective for non- joinder of necessary parties, but the learned Court below passed the impugned order dated December 09, 2016 without deciding the said point. According to the learned counsel for the defendants the impugned order dated November 09, 2016 has been passed by the learned Court below with material irregularity. On all these grounds Mr. Roychowdhury submitted that this Court should allow both revisional applications by setting aside all the orders dated September 24, 2016, November 14, 2016, November 28, 2016 and December 09, 2016 passed by the learned Court below.
However, Mr. Mitra, learned counsel appearing for the plaintiff while dealing with the above contentions raised by on behalf of the defendants challenging each of the impugned orders dated September 14, 2016, November 10, 2016, November 28, 2016 as well as the impugned order dated September 09, 2016 contended that none of the said impugned orders passed by the learned Court suffers 13 from any infirmity to be interfered by this Court in revision. He urged that the first impugned order dated September 14, 2016 passed by the learned Court below suffers from no infirmity as till that date, none of the defendants had entered appearance in the suit, but in spite of the knowledge of passing of the order dated September 09, 2016 they were trying to interfere with the enjoyment of the plaintiff in respect of the suit property. He submitted that the decisions cited by the defendants in the cases of Gayanath Ghosh (supra) or Panka Lal Bag (supra) has any application in the present case were rendered when this Court was dealing with the cases of orders of police help passed while dealing with applications under Order 21 Rule 97 of the Code and, as such, none of the said decisions has any application in this case. He submitted that the police authorities are under obligation and duty- bound to maintain law and order in the area under its jurisdiction and to implement the order passed by the Court without any hesitation of delay. According to him, when the plaintiff approached the Golabari Police Station complaining violation of the said order dated order September 09, 2016 by the defendants, if the police authorities had taken steps to ensure that the said order is not violated by the defendants, there was no necessity for the learned Court below to pass the said order dated September 14, 2016 with directions against the Inspector-in-Charge, Golabari Police Station. In this regard, Mr. Mitra relied on the decision of the Division Bench of this Court in the case of Nilratan Mahapatra vs. State of West Bengal reported in [2013 (3) CLJ (Cal) 421] and submitted that in any event, the defendants cannot claim to have suffered any prejudice by the said order dated September 14, 2016. 14
With regard to the impugned order dated November 10, 2016 passed by the learned Court below allowing the amendment of the plaint, it was submitted on behalf of the plaintiff that since till the date of the said order the defendants had not entered appearance in the suit, the learned Court below committed no error of law in allowing the amendment application ex-parte. According to Mr. Mitra, while passing the order dated November 28, 2016 the learned Court below not only found the summons of amended plaint forwarded to the defendants were returned with the endorsement "Refused", but it was also satisfied that the defendants put up a wall within the suit property, in violation of the order of injunction dated September 09, 2016 and, as such, impugned order dated November 28, 2016 is not vitiated by any error of law calling for any interference by this Court. It was strenuously contended on behalf of the plaintiff that in the recalling application filed before the learned Court below, no case was made out on behalf of the defendant no. 2 that the wall was not put up within the suit property after September 09, 2016 and, as such, the mere denial of the tender of service of writ of summons and the amended plaint, by the defendant no. 1 did not entitle the defendants to have the order dated November 28, 2016 being recalled by the learned Court below. Thus, it was urged that there is no infirmity even in the impugned order dated December 09, 2016 which can be interfered by this Court in revisional jurisdiction.
Mr. Mitra further pointed out that the application for recalling of the orders dated September 09, 2016 and November 28, 2016 and for stay of operation of the said orders were filed by the defendant no. 2 alone. According to him, even it is accepted for the save of argument that the writ of summons of the suit and the 15 original and amended plaint were not served upon the defendant no. 2, the same were served at least on the defendant no. 1 who refused to accept the same. It was further submitted that the defendant no. 1 not being the applicant in the applications filed before the learned Court below for recalling of the orders dated September 09, 2016 and November 28, 2016, the present revisional application at the instance of the defendant no. 1 is not maintainable.
On all the above grounds, it was submitted on behalf of the plaintiff for dismissal of the both the revisional applications.
I have carefully considered the materials on record, as well the arguments advanced by the learned Counsel appearing for the petitioners and the opposite parities, respectively. Since a serious contention was raised with regard to the maintainability of the revisional application, as against the order dated November 28, 2016 I proceed to decide such point first. In the present case, though the present application filed by the plaintiff in which the order dated November 28, 2016 was passed by the learned Court below was captioned under Section 151 of the Code, but the prayer made in the said application clearly came within the purview of Order 39 Rules 1 and 2 of the Code. Even in the grounds mentioned in the first revisional application the defendants have accepted the impugned order dated November 28, 2016 to be an order of mandatory injunction and the learned senior counsel for the plaintiff did not dispute the said order to be an appealable order under Order 43 Rule 1 of the Code. It is also a fact that the defendants have already filed an appeal 16 against the impugned order dated November 28, 2016 which is pending before the learned District Judge, Howrah. There also appears to be substance in the contention of the plaintiff that the provisions of Section 96(2) and Order 43 Rule 1 of the Code expressly confers the remedy to a defendant/judgment debtor in a suit decreed ex parte, to prefer an appeal against the ex parte decree, as also to file an application for recalling of the ex parte decree and in the absence of any provision in the Code to challenge an injunction order passed by a Court under Order 39 Rules 1 and 2 both by preferring an appeal and to file a revisional application against the same order, the decisions of the Supreme Court in the cases of Bhanu Kumar Jain (supra) and Mahesh Yadav (supra) may not be applicable in the present case. In the case of Shalini Shyam Shetty (supra) cited by the plaintiff it has been held that the High Court can interfere in exercise of its power of superintendence under Article 227 of the Constitution of India when there has been a patent perversity in the orders of the Tribunals and the Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. Therefore, in view of the said decision of the Supreme Court in the case of Shalini Shyam Setti(supra) it cannot be held that the decisions of the two single Judges of this Court in the cases of Ravi Maharia (supra), and C.E.S.C. Ltd.(supra) and the decision of the learned Single Judge of the Allahabad High Court in the case of Ishrat Hussain Khan (supra) to lay down the law that an order of injunction passed under Order 39 Rules 1 and 2 passed by any Court subordinate to this Court, cannot ever be challenged before this Court in revisional jurisdiction. Further, in the present case the defendants are entitled to move the second revisional application as against 17 the impugned order dated December 9, 2016. In these facts, as also for the reasons mentioned hereinafter, I am unable to accept the contention of the plaintiff that the revisional application against the impugned order dated November 28, 2016 is not at all maintainable.
Now, let us consider the merit of the challenges made by the defendants in these revisional applications against the impugned orders dated September 14, 2016, November 10, 2016, November 28, 2016 and December 9, 2016 passed by the learned Court below.
So far as the impugned order dated September 14, 2016 is concerned the same was passed by the learned Court below at a stage, when the writ of summons and the original plaint filed in the suit were not served upon any of the defendants. By the said order the learned Court below only directed the Inspector-in-Charge, Golabari Police Station to ensure the implementation of the injunction order dated September 9, 2016 and to avoid breach of peace. Therefore, it cannot be said that the defendants suffered any prejudice due to passing of the said ex parte order dated September 14, 2016 or that the learned Court below committed any error of law in passing the said order. Although, the application of the plaintiff in which the said order dated September 14, 2016 was passed was captioned under Section 151 of the Code, but the same was in effect an application under Order 39 Rules 1 and 2. Accordingly, the said impugned order dated September 14, 2016 is an appealable order and by no means it can be contended that the said order is vitiated by any patent perversity or the passing of the said order results in any failure of justice to 18 the defendants. For all these reasons, I do not find any reason to interfere with the impugned order dated September 14, 2016.
So far as the impugned order dated November 10, 2016 passed by the learned Court below allowing the application of the plaintiff to amend its plaint filed in the suit it is a fact that the same is an ex parte order, but by the said order the learned Court below allowed the plaintiff to amend its plaint to incorporate some alleged subsequent events and to add a consequential relief when the defendants had not entered appearance in the suit. In the facts of the present case, I am unable to find any infirmity in the impugned order dated November 10, 2016 calling for any interference by this Court in exercise of revisional jurisdiction. It is settled law that a Court has large measure of discretion in the matter of allowing the amendment of the plaint or the written statement filed in the suit and the Court's such power is liberally exercised. At the time of considering an application for amendment of the pleadings by a party the Court does not enter into the merits at the stage and the Court only decide whether or not the proposed amendment ought to be allowed on such terms as may be just in order to decide the real question in controversy between the parties.
It is settled law that an interim mandatory injunction is not a remedy that is easily granted. It is an order that is passed only in circumstances which are clear and the prima facie materials clearly justify a finding that the status quo has been altered by one of the parties to the litigation and the interest of justice demand that the status quo ante be restored by way of interim mandatory injunction. If an authority for this view is looked for, the same can be found in the Division Bench of 19 this Court in the case of Indian Cable Company Limited vs. Smt. Sumitra Chakraborty, reported in AIR 1985 Cal. 248 and the decision of the Supreme Court in the case of Kishore Kumar Khaitan and Another vs. Praveen Kumar Singh, reported in (2006) 3 SCC 312. In the present case, from a perusal of the application filed by the plaintiff which was allowed by the learned Court below by the impugned order dated November 28, 2016 it is evident that the plaintiff had disclosed no evidence whatsoever to substantiate the allegation that after passing of the said injunction order dated September 9, 2016 the defendants had put up the any wall by encroaching the suit property. Further, by the order dated September 23, 2016 the learned Court below had rejected the earlier application filed by the plaintiff claiming the same relief for mandatory injunction on the ground that the allegation of encroachment is required to be proved by trial and evidence. The averments of the plaintiff in its applications filed under Section 151 of the Code are all same. For all these reasons, keeping the principle for passing an order of mandatory injunction as laid down by the Division Bench of this Court in the case of Indian Cable Company Limited (supra) and the Supreme Court in the case of Kishore Kumar Khaitan and Anr. (supra) it is proved beyond doubt that the learned Court below committed a patent illegality in passing the impugned ex-parte order dated November 28, 2016 and failed to exercise its judicial discretion.
For all the above reasons, the impugned order dated November 28, 2016 passed by the learned Court below stands set aside.
So far as the impugned order dated December 9, 2016 passed by the learned Court below is concerned, when at least, the defendant no. 2 on oath had stated that 20 the writ of summons and the copies of the plaint had not been tendered to be served on him, in view of the decision of the Supreme Court in the case of Puwada Venkateswara Rao (supra) he had rebutted the presumption, arising out of the endorsement of the writ of summons returned to the Court with the endorsement "refused" that the same are duly served upon him. Therefore, the learned Court below fell into a patent error of law, in passing the impugned order dated December 9, 2016 by not deciding the issue raised by the defendant no. 2 petitioner with regard to the non-service of writ of summons and the copy of the plaint upon him and by making a sweeping observation that as on November 28, 2016 when the defendant failed to appear, the order was passed and hence default or mistake on the part of the Court is non-existent.
For the aforesaid reasons, the order dated December 9, 2016 cannot be sustained and the said order stands set aside.
It is, however, made clear that this order shall not prevent the plaintiff to approach the learned Court below afresh to obtain an order of mandatory injunction, if it is otherwise entitled to such relief.
Before parting with the revisional applications it is to be noted that Mr. Sabyasachi Bhattacharya, learned senior advocate and Mr. Tanmoy Mukherjee, learned advocate, appeared before this Court and submitted that they are appearing for Ratnakar North Point School who has filed two applications being CAN 12171 of 2016 and CAN 12172 of 2016, praying for its impleadment in the first and second revisional applications respectively. However, since the said school is yet to be 21 impleaded in the pending suit before the learned Court below, I did not entertain the said applications at this stage.
With the above directions, both the revisional applications, being CO 4595 of 2016 and CO 4549 of 2016, stand disposed of.
However, there shall be no order as to costs.
Certified website copies of the order, if applied for, be urgently made available to the party, subject to compliance with all requisite formalities.
(Ashis Kumar Chakraborty, J.) 22 23