Gopal Ghosh & Ors vs George College Of Management & Science on 26 August, 2011

[Cites 5, Cited by 1]

Calcutta High Court (Appellete Side)

Gopal Ghosh & Ors vs George College Of Management & Science on 26 August, 2011

Bench: Dipankar Datta

IN THE HIGH COURT AT CALCUTTA

CIVIL REVISIONAL JURISDICTION

Present : The Hon'ble Justice Dipankar Datta

C.O. No.1237 of 2011

Gopal Ghosh & ors.

versus

George College of Management & Science

For the petitioners : Mr. S.P. Roy Chowdhury, Sr. Advocate
Mr. Sabyasachi Bhattacharya, Advocate
Ms. Shohini Bhattacharya, Advocate

For the opposite party : Mr. Sakti Nath Mukherjee, Sr. Advocate
Mr. B. R. Bhattacharya, Sr. Advocate
Mr. Prabal Mukherjee, Advocate
Mr. Rajat Dutta, Advocate
Mr. Debojyoti Deb, Advocate

Heard on : July 8, 11, 13 and 15, 2011

Judgment on : August 26, 2011

1. Whether or not the order of the lower appellate Court affirming the order of

interim injunction granted by the trial Court on an application under Order
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XXXIX, Rules 1 and 2, Civil Procedure Code (hereafter the Code) merits

interference is the sole question that arises for determination on this revisional

application under Article 227 of the Constitution of India at the instance of the

defendants in the suit.

2. The dispute between the parties is in respect of user of a passage (hereafter

the said passage).

3. It would be prudent to note first, what the plaint case is. In the 16 (sixteen)

paragraphs comprising the plaint, the plaintiff/opposite party (hereafter the

plaintiff) states/claims as follows:

para 1 : the particulars of the plaintiff;

para 2 : the subject matter of the suit, viz. a common passage

particulars whereof are mentioned therein;

para 3 : the extent of the plaintiff's college campus measuring

39 cottahs, 13 chittaks and 29 sq. ft. of land in Dag Nos. 221

and 218;

para 4 : land appertaining to Dag No.221 originally belonged to

M/s. LCI India (P.) Ltd., which subsequently sold, conveyed

and transferred its right, title and interest in favour of M/s.

Bee Impex and Holding (P.) Ltd. (hereafter Bee Impex) by two

registered deeds of conveyance;

para 5 : land appertaining to Dag No. 218 actually belonged to

M/s. Monalok (P.) Ltd., which subsequently sold, conveyed and
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transferred its right, title and interest in favour of Bee Impex

by two registered deeds of conveyance;

para 6 : Bee Impex became the absolute owner of the lands in

Dag Nos. 221 and 218 along with the right to use the common

passage and/or road situated on the eastern and northern

sides for the purpose of ingress and egress to the portion of

land appertaining to Dag No. 221 "****from Gate No.2 of M/s. G

& K Shipping Pvt. Ltd. in common with the co-owners of the

adjoining properties.";

para 7 : subsequently, Bee Impex transferred its right, title and

interest in respect of the land in Dag Nos. 221 and 218 in

favour of the plaintiff by three deeds of gift in May, 2003

"****along with right to use the said common passage.";

para 8 : G & K Shipping Pvt. Ltd. (hereafter G & K Shipping)

through its letter dated July 16, 2001 confirmed to the

predecessor-in-interest of the plaintiff that ingress and egress

of men, materials and vehicles through the common passage

on the northern and the eastern sides shall not be disturbed in

any manner whatsoever even if they sell the property to the

defendants whom they appointed as developer;

para 9 : G & K Shipping sold a godown and a warehouse to the

defendants who immediately after purchasing the property

started obstructing the free ingress and egress of the men,
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agents and students of the plaintiff through the said common

passage causing trouble which forced the plaintiff to make a

temporary arrangement at the dictating terms of the

defendants to cope with the regular and continuous trouble

and harassment of the plaintiff's men, agents and students;

para 10 : despite confirmation of G & K Shipping resulting in

accrual of right in favour of the plaintiff, the defendants

illegally and intentionally obstructed and hindered ingress and

egress of plaintiff's men, agents and vehicles almost on regular

basis causing annoyance to the plaintiff;

para 11 : the defendants raised hindrance and obstruction to

prevent ingress and egress through the common passage

leading to lodging of criminal complaints;

para 12 : the source of accrual of the plaintiff's right i.e. the

deeds of conveyance and gift as well as the confirmation letter

of G & K Shipping, to use the common passage for ingress or

egress to its property and there being no alternative passage

for the plaintiff's ingress or egress thereto/therefrom;

para 13 : the plaintiff's assertion of its right of user of the

common passage for the purpose of ingress to and egress from

its property;
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paras 14-16 : the formal paragraphs asserting the relief the

plaintiff is entitled to, the cause of action and the statement

relating to valuation of the suit.

4. On the basis of the aforesaid pleadings, the plaintiff claimed the following

relief:

"(a) Decree for Declaration that the plaintiff having easement right
over the eastern side common passage its men, agents, staffs,
personnels, students and vehicles are entitled to use northern
and eastern side common passage for their free ingress and
egress to and from the Budge Budge Trunk Road to its premises.
(b) Decree of permanent injunction restraining the defendants their
men and agents either jointly or severally from obstructing
hindering the free ingress and egress of the plaintiff, its staffs,
students, personnels, men, agents, and northern and eastern side
common passages leading to and from the Budge Budge Trunk
Road."

5. The plaintiff, in connection with the suit, filed an application under Order

XXXIX Rules 1 & 2 of the Code. It was prayed therein as follows:

"An order of temporary injunction restraining the defendants it
men, agents, eigher jointly or severally from obstructing or
hindering the free ingress and egress of your petitioner, its staffs,
personnels, students, men, agents and vehicles through the
northern and eastern side common passage till disposal of the
suit.
Ad-interim order of injunction in terms of prayer (a) above."

6. The defendants/petitioners (hereafter the defendants) opposed the same by

filing a written objection. They also filed a written statement dealing with the

plaint, within the stipulated time. It appears to be the defence case that the
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defendants are the owners of the said passage, forming the subject matter of the

suit. They purchased properties including the said passage from G & K Shipping

in 2001. They had granted leave and licence to the plaintiff for user of the same,

responding to an appeal made by it. A memorandum of understanding (hereafter

the MOU) was entered into by and between the parties on August 31, 2007, in

terms whereof the plaintiff was permitted restrictive user of the said passage on

payment of monthly leave and licence fees to the defendants. The MOU was

initially valid for 11 months. It was being renewed on expiry of 11 months and

lastly it was renewed on the request of the plaintiff on May 31, 2010, to be valid

till April 30, 2011. The said passage was allowed to be used for the limited

purpose of ingress and egress of the plaintiff's teachers, employees and students.

At times, on the request of the plaintiff, the defendants allowed private cars and

vehicles to pass through the said passage to reach the college that it had started

on its property. Licence fees were paid by the plaintiff till October, 2010 and

thereafter, it instituted the ill-motivated and speculative suit based on frivolous

and baseless grounds. Additionally, it was contended that the letter dated July

16, 2001 stated to have been issued by G & K Shipping was a forged document.

It was also pleaded in paragraph 12 of the written statement that the plaintiff

had been using a passage on the western side of the defendants' Gate No. 2 since

2003 i.e. date of acquiring lands comprised in Dag Nos. 221 and 218 from Bee

Impex, belonging to their donor, whereupon they had "constructed College

building, boundary walls and also have taken Electricity etc. in their said usual

passage" as shown in a map annexed thereto.
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7. Some of the terms & conditions of the MOU dated May 31, 2010 read as

follows:

"****
3. That on and from the month of June, 2010 and onwards, George College
of Management & Science, will pay Rs. 5789/- (Rupees Five thousand seven
hundred eighty nine only) per month as charges for the user to the first party
regularly and in the event of failure to pay the same for consecutive three
months, the second party will be liable for termination of this MOU.
4. That the gate of the main entrance on Northern side of the Holding leading
from Budge Budge Trunk Road shall remain open every day from 7.00 a.m.
and will positively be closed at 9.30 p.m. Any request form the second party
for keeping the gate open after 9.30 p.m. shall not be entertained in any
way, save and except for a short duration in case emergency, if arises.
5. That the management of the college will display 'Notice' on the college
Board regarding free access to and from the said Northern side passage of
the said holding at Anil Nagar upto 21.00 hrs. and such college Board to be
affixed on the Road side without making any hindrance to the main gate of
the first party.
6. That in the event of any dispute/misunderstanding arises in future in the
aforesaid matter the same shall be settled amicably between the parties
hereto.
7. That this MOU shall remain valid for 11 (eleven) months from the date
hereof, and after expiry of the period of this MOU, a fresh MOU may be
executed for a further period of 11 (eleven) months on the fresh terms and
conditions as may be agreed upon but subject to increase of 5% (five per
cent) of charges for user for 11 (eleven) months.
7A. This is the Fourth MOU for a further period of eleven months as per
clause 7 mentioned in the Original MOU dated 31st August, 2007. All other
terms and conditions shall remain the same as per 1st MOU dated
31.8.2007.
8. That during the terms of this MOU both party shall perform and observe
diligently all conditions, restrictions and stipulations made herein."

8. In its reply, the plaintiff repeated and reiterated its case as stated in the

application and in particular denied that there was an alternative passage

through which it could have access to its property, as claimed by the defendants.

9. To sum up the respective claims, while the plaintiff claimed easement right

in respect of the suit property, the claim of the defendants is that the plaintiff is a
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licencee and is not entitled to anything more except to the extent as agreed upon

between them.

10. The learned Judge of the trial Court, on the basis of the materials on

record, returned a finding that "it is clear that the passage which plaintiff is

claiming to be a common passage is not a common passage but a private passage",

yet, held that the "fact remaing (sic remains) that the passage was being used by

the pltff and its men, agents, students, staff, personnels and vehicles since 2007.

Now whether it is an easement right or a right of use of common passage is to be

decided at the time of final hearing. At this stage if any decision is taken in this

regard it will prejudge the suit. ****From all the documents prima facie pltff has

been able to show that they are using the said passage i.e. northern side passage

and eastern side passage since at least from 2007.", and proceeded to grant

injunction as prayed for till disposal of the suit and, thereby, allowed the

application under Order XXXIX Rules 1 and 2 of the Code.

11. While dismissing the appeal filed by the defendants challenging the

aforesaid order, the learned Judge of the lower appellate Court was of the view

that existence of a passage was admitted by both the parties, and that the same

was being used by the owners of the plot of land, now held by the plaintiff, is

evident from the documents relied upon by the parties. Whether or not the

passage is a common passage or a private passage over which the plaintiff has

claimed right of easement is a question that ought to be decided by the trial

Court after considering the evidence that might be adduced. It was further

observed as follows;
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"Going through the trial Court record I find other than establishing the
fact that the plaintiffs are owners of the suit land, complaints lodged
with the police authorities and subsequent filing of M.P. Cases show
that disturbance were being faced by the plaintiffs despite the fact
there existed a Memorandum of Understanding for user of the passage
(suit property) between the parties. Such being the facts and
circumstances in my view trial Court has rightly passed a temporary
injunction (sic restraining) the appellant/defendants from disturbing
the peaceful user of the passage by the plaintiff/respondent. I,
therefore, refrain from interfering with the impugned order passed by
the learned trial Court."

12. Mr. Roy Chowdhury, learned senior advocate for the defendants, contended

that claim of easement right was made for the first time by the plaintiff for the

purpose of the relief claimed in the suit. It never had any easement right over the

said passage; factually, its right over the said passage is based on the agreement

between the parties, i.e. the right of a licencee, and it has attempted to create a

new right as against the defendants to usurp their property. The decision

reported in AIR 1965 SC 610 (Mrs. M.N. Clubwala & ano. v. Fida Hussain Saheb

& ors.) was relied on in support of the proposition that for ascertaining the

relationship between the parties, their intention at the threshold of the

agreement is the decisive consideration and it has to be gathered on

consideration of all the provisions therein. Reading the plaint in its entirety, he

made an endeavour to drive home the point that up to paragraph 13 thereof, no

assertion in respect of easement right has been made, and the basic ingredients

of accrual of easement right have not been shown. Easement, according to him,

has to be averred and proved but there being no averment in this behalf coupled

with the terms of the agreement between the parties, question of granting an

interim relief pending final decision in the suit did not arise at all. Further, he
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contended that there is no inkling of any statement in respect of the successive

agreements between the parties, 4 (four) in all, and particularly the terms and

conditions based whereon user of the said passage by the plaintiff was allowed by

the defendants which, is not a prescriptive right, and the plaintiff, according to

him, is also guilty of suppression of material facts. The decision reported in

(2005) 1 SCC 471 [Justiniano Antao & ors. v. Bernadette B. Pereira (Smt)] was

referred to wherein it has been ruled that to establish a right by way of

prescription to the detriment of the other party, one has to specifically plead and

lead categorical evidence to show that he has been using the land as of right

peacefully and openly, without any interruption for 20 (twenty) years and that in

case of availability of an alternative access, there is no reason why the property of

others should be permitted to be used as access. Drawing my attention to the

agreements, he also contended that the defendants had full control over the said

passage and the parties acted on the terms and conditions thereof including

regular payment of licence fees, and respected and honoured the same till

institution of the suit. The several letters written by the plaintiff seeking the

permission of the defendants to allow vehicles destined for its college on special

occasions were next referred to, in support of the contention that claim of

easement was well and truly contradicted by the defendants. He pointed out that

the order passed by the trial Court granting injunction did not decide whether

prima facie case of easement had been made out or not. Insofar as the order of

the lower appellate Court is concerned, it was argued that no importance was

given to the MOU and the agreements following it in respect of the restrictive
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right of user conferred thereby. He assiduously contended that the principles

that the Courts ought to bear in mind while granting interim injunction, as laid

down in the decision reported in AIR 1993 SC 276 (Dalpat Kumar & ano. v.

Prahlad Singh), were overlooked, and relevant evidence was discarded and

irrelevant evidence considered, rendering the impugned orders vulnerable to

challenge on the ground of perversity.

13. He, accordingly, submitted that the defendants having set up a strong case

for interference, the orders impugned are liable to be interdicted.

14. Mr. Sakti Nath Mukherjee, learned senior advocate appearing for the

plaintiff urged that the High Court exercising power of judicial superintendence

under Article 227 ought to be slow in interfering with orders of the subordinate

Courts reaching concurrent findings of fact, and urged that the revisional

application may not be entertained. In support of his contention, he relied on the

decisions reported in (2005) 11 SCC 578 (Subodh Kumar Gupta & ors. v. Alpana

Gupta & ors.), (2002) 8 SCC 400 (Essen Deinki v. Rajib Kumar), and (2009) 11

SCC 495 [Dipali Roy (Baxi) v. Mira Das].

15. The decision reported in AIR 1973 SC 76 [The Managing Director (MIG)

Hindustan Aeronautics Ltd. Balanagar, Hyderabad & anr. vs Ajit Prasad Tarway,

Manager (Purchase and Stores) Hindustan Aeronautics Ltd. Balanagar,

Hydrabad] was relied on by Mr. Mukherjee for the proposition that since the trial

Court had the jurisdiction to make an order of injunction and the lower appellate

Court affirmed such grant, the High Court may not interfere even though the

order is either wrong or not in accordance with law, unless it is established that
12

jurisdiction has been exercised either illegally or with material irregularity which,

according to him, is not the case here.

16. It was next contended by Mr. Mukherjee that the Court ought to bear in

mind the difference between exercise of appellate and revisional jurisdiction.

While it may be permissible for the appellate Court to re-assess and re-appreciate

the evidence/materials and to reach a conclusion different from the one reached

by the trial Court, such course of action is not open to a Court exercising

revisional jurisdiction. According to him, if two views are possible on the

evidence/materials before the trial Court and one of the two views has been

taken, which is a plausible view, it is not for the Court exercising revisional

jurisdiction to substitute the view taken by the trial Court on the ground that if

the matter had been considered by it initially, it could have taken the other view

or even a contra view. He urged that the Court's concern while exercising

jurisdiction under Article 227 ought to be limited in the sense that it could or

may interfere if exercise of discretion by the trial Court is patently arbitrary, or

capricious or perverse. He, however, hastened to add that if the trial Court is

found to have exercised discretion reasonably and judiciously, interference would

not be justified.

17. On merits, Mr. Mukherjee while supporting the impugned orders of the

subordinate Courts referred to the decision reported in (2009) 4 SCC 691 (Joy

Auto Works & ors. v. Sumer Builders Private Limited & ano.) and contended that

in circumstances not too dissimilar to the one at hand where the trial Court had

allowed access on foot from the main road to the premises of the appellants-
13

plaintiffs, the Supreme Court had interfered with the order under challenge

before it in the civil appeal and had allowed motorable access to them

considering that non-grant of injunction would result in such extent of loss and

injury that they cannot be compensated by damages if their suit were to succeed.

18. Referring to the decision reported in [1975] 1 All ER 504 (American

Cyanamid Co v. Ethicon Ltd), it was contended that it is open to the Court to

consider whether on balance of convenience interlocutory relief should be

granted provided the claim is not vexatious or frivolous, and that the subordinate

Courts were correct in leaning towards grant of injunction, as prayed for, rather

than refusing it considering the irreparable loss and injury the plaintiff would

suffer if interim relief were refused.

19. While concluding, Mr. Mukherjee reiterated that while granting injunction

and affirming such grant, discretion had been exercised by the subordinate

Courts judiciously and no case for changing the status quo as prevailing on the

date the suit was instituted having been set up, interference is not warranted.

He, accordingly, prayed for dismissal of the revisional application.

20. Answering the primary contention of Mr. Mukherjee on the question of

interference, Mr. Roy Chowdhury contended that the nature of superintendence

exercised by the High Court under Article 227 is too well-settled to be disputed.

According to him, the decisions cited by Mr. Mukherjee could not have possibly

and do not lay down the law that the High Court, when approached under Article

227, against an order affirming grant of injunction passed by the trial Court can

never interfere; on the contrary, within the jurisdiction exercisable under Article
14

227, any order passed by a subordinate Court is liable to be interfered with by

the High Court if such order is perverse, meaning thereby that no reasonable

person on the same set of materials could have reached the conclusion the Court

reached or if the subordinate Court proceeds to give its decision without

considering relevant evidence and considering irrelevant evidence. To buttress his

contention that the High Court would be justified in its interference under Article

227 in the present case, he relied on the decisions reported in AIR 2001 SC 393

(State of Maharashtra v. Milind and ors.), (1999) 2 SCC 143 [Sabita Chemicals

(P). Ltd. v. Dyes & Chemical Workers' Union and anr.], (2000) 7 SCC 522 9Shama

Prashant Raje v. Ganpat Rao & ors.), AIR 1987 SC 117 (Chandravarkar Sitaratna

Rao v. Ashalata S. Guram), AIR 1997 SC 2077 (Achuta Nanda Baidya v. Prafullya

Kumar Gayen & ors.) and finally the Constitution Bench decision of the Supreme

Court in AIR 1954 SC 215 (Waryam Singh and anr. v. Amarnath & anr.). He,

accordingly, submitted that the Court ought not to mechanically dismiss the

application under Article 227 merely on the ground that the orders passed by the

subordinate Courts recorded concurrent findings of fact and in their very nature

are discretionary; on the contrary, the Court's conscience ought to be satisfied

that the subordinate Courts had not ignored the settled principles of law

regulating grant or rejection of an interlocutory application for injunction and

that it ought to endeavour, considering the merits of the rival claims, to ascertain

whether the orders impugned suffer from perversity or not so as to warrant

judicial interdiction.
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21. I have heard learned senior advocates for the parties and considered the

materials on record.

22. Two of the decisions cited by Mr. Roy Chowdhury, viz. Waryam Singh

(supra) and Chandravarkar Sitaratna Rao (supra), were considered by the

Supreme Court in its recent decision reported in (2010) 8 SCC 329 (Shalini

Shyam Shetty and anr. v. Rajendra Shankar Patil). The principles relating to

exercise of jurisdiction under Article 227 were summarized in paragraph 49,

relevant portion whereof reads as follows:

"****
(c) High Courts cannot, at the drop of a hat, in exercise of its power of
superintendence under Article 227 of the Constitution, interfere with the
orders of tribunals or courts inferior to it. Nor can it, in exercise of this power,
act as a court of appeal over the orders of the court or tribunal subordinate to
it. In cases where an alternative statutory mode of redressal has been
provided, that would also operate as a restrain on the exercise of this power
by the High Court.
****

(e) According to the ratio in Waryam Singh, followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and courts subordinate to it, 'within the bounds of their authority'.

(f) In order to ensure that law is followed by such tribunals and courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.

(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and 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.

(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.

(i) The High Court's power of superintendence under Article 227 cannot be curtailed by any statute.**** 16

(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227.

(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu.

(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.

(m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court.

(n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas****. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.

(o) An improper and a frequent exercise of this power will be counterproductive and will divest this extraordinary power of its strength and vitality."

23. I, therefore, consider it to be settled law that the power under Article 227 ought to be sparingly exercised and not at the drop of a hat. Only in an appropriate case, where the subordinate Court acts beyond the bounds of its authority or in flagrant abuse of the fundamental principles of law or justice or passes a perverse order discarding relevant evidence and considering irrelevant evidence or an order of the Wednesbury variety, interference should not be avoided on the specious ground that the orders under challenge are either discretionary in nature or record concurrent findings of fact. 17

24. What then is a perverse order, that would merit interdiction in exercise of powers of judicial review? The Bench decision of this Court reported in 1974 CLJ 251 (Collector of Customs v. Biswanath Mukherjee) authoritatively lays down when an order passed by an inferior Tribunal could be considered to be perverse. It reads as follows :

"a. The Tribunal has come to the finding on no evidence.

b. The Tribunal has based the finding on materials not admissible and has excluded relevant materials.

c. The Tribunal has not applied its mind to all the relevant materials and has not considered the same in coming to the conclusion.

d. The Tribunal has come to the conclusion by considering material which is irrelevant or by considering material which is partly relevant and partly irrelevant.

e. The Tribunal has disabled itself in reaching a fair decision by some considerations extraneous to the evidence and the merits of the case. f. The Tribunal has based its finding upon conjectures, surmises and suspicion.

g. The Tribunal has based the finding upon a view of the facts which could not reasonably be entertained or the facts found were such that no person acting judicially and properly instructed as to the relevant law could have found.

h. If the Tribunal in conducting the enquiry has acted in flagrant disregard of the rules of procedure or has violated the principles of natural justice, where no particular procedure is prescribed."

25. The grounds on which power of judicial review could be exercised are well known. It could be based on three broad heads viz. illegality, irrationality and procedural impropriety. Every decision-maker must understand correctly the law that regulates his power of making a decision and he must give effect to it. A decision could be interfered with on the ground of illegality if it is ultra vires, or is the result of acting in bad faith or for improper purpose, or proceeds on consideration of irrelevant factors and non-consideration of relevant factors, or there is failure to exercise a jurisdiction that is conferred, etc. A decision is said 18 to suffer from irrationality if it is of the Wednesbury variety, a decision so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. A decision is said to suffer from procedural impropriety if there is a failure to adhere to procedures that are considered mandatory, viz. to permit the parties to present their versions, the duty to decide without bias, the duty to assign reasons, and the duty to act fairly.

26. At this stage, I may also notice the principles for grant of interim injunction pending decision in a suit as laid down in the decision in Dalpat Kumar (supra). Relevant portions thereof read as follows:

"4. *** It is settled law that the grant of injunction is a discretionary relief. The exercise thereof is subject to the court satisfying that (1) there is a serious disputed question to be tried in the suit and that an act, on the facts before the court, there is probability of his being entitled to the relief asked for by the plaintiff/ defendant; (2) the court's interference is necessary to protect the party from the species of injury. In other words, irreparable injury or damage would ensue before the legal right would be established at trial; and (3) that the comparative hardship or mischief or inconvenience which is likely to occur from withholding the injunction will be greater than that would be likely to arise from granting it.

5. Therefore, the burden is on the plaintiff by evidence aliunde by affidavit or otherwise that there is 'a prima facie case' in his favour which needs adjudication at the trial. The existence of the prima facie right and infraction of the enjoyment of his property or the right is a condition for the grant of temporary injunction. Prima facie case is not to be confused with prima facie title which has to be established, on evidence at the trial. Only prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that non-interference by the Court would result in 'irreparable injury' to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession.. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages. The third condition also is 19 that 'the balance of convenience' must be in favour of granting injunction. The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that it is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject-matter should be maintained in status quo, an injunction would be issued. Thus the Court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit."

27. In view of the aforesaid decision, efficacy of the view expressed in American Cyanamid (supra) on grant of injunction stands eroded and I find no reason to consider the same to be of any persuasive value.

28. The propriety of the orders impugned has to be tested applying the aforesaid principles and it would now be my endeavour to examine whether judicial review is attracted on facts and in the circumstances of the present case or not.

29. Easement, in common legal parlance, means a right of user of the property of another. Based on the pleadings before them, it ought to have exercised the consideration of the subordinate Courts as to whether, prima facie, a case of easement has been set up by the plaintiff or not and if so, to what interim relief it was entitled.

30. However, before embarking on such an examination, one may usefully refer to the decision reported in AIR 2009 SC 1103 (Bachhaj Nahar v. Nilima Mandal), which contains an enlightening discussion on the right of easement. The relevant portion reads as follows:

"14. Easements may relate to a right of way, a right to light and air, right to draw water, right to support, right to have overhanging eaves, right of 20 drainage, right to a water course etc. Easements can be acquired by different ways and are of different kinds, that is, easement by grant, easement of necessity, easement by prescription, etc. A dominant owner seeking any declaratory or injunctive relief relating to an easementary right shall have to plead and prove the nature of easement, manner of acquisition of the easementary right, and the manner of disturbance or obstruction to the easementary right. The pleadings necessary to establish an easement by prescription, are different from the pleadings and proof necessary for easement of necessity or easement by grant. In regard to an easement by prescription, the plaintiff is required to plead and prove that he was in peaceful, open and uninterrupted enjoyment of the right for a period of twenty years (ending within two years next before the institution of the suit). He should also plead and prove that the right claimed was enjoyed independent of any agreement with the owner of the property over which the right is claimed, as any user with the express permission of the owner will be a licence and not an easement. For claiming an easement of necessity, the plaintiff has to plead that his dominant tenement and defendant's servient tenement originally constituted a single tenement and the ownership thereof vested in the same person and that there has been a severance of such ownership and that without the easementary right claimed, the dominant tenement cannot be used. We may also note that the pleadings necessary for establishing a right of passage is different from a right of drainage or right to support of a roof or right to water course. We have referred to these aspects only to show that a court cannot assume or infer a case of easementary right, by referring to a stray sentence here and a stray sentence there in the pleading or evidence".

31. Let me now consider whether the plaint discloses any ingredient for claiming right of easement or not.

32. It is settled law that pleadings forming part of the plaint cannot be compartmentalized, dissected, segregated and then read. To ascertain its import, the plaint has to be read as a whole. It is not proper to cull out a sentence or passage and to read it out of context in isolation.

33. Reading the plaint as it is, it does not appear to be the case of the plaintiff that it is claiming any right of easement by prescription. 21

34. A case of easement of access that is implied under a grant is attempted to be set up by the plaintiff by referring to the letter dated July 16, 2001 allegedly issued by G & K Shipping, a month prior to transferring its properties including the said passage to the defendants. The standard of proof in civil cases is preponderance of probabilities, i.e. inclining one to draw an inference that between two sets of facts, one set of fact must be more probable than the other. There must be some material facts or circumstances on record from which an inference that a fact in dispute has been held established could be drawn. The point has to be decided bearing in mind the above principle of law. If at all the letter dated July 16, 2001 could be construed as creating an easement of access by implied grant, the defence case is that it is a manufactured document brought into existence for the purpose of the suit. Emphasis has been laid on behalf of the defendants on the deed of conveyance executed by and between G & K Shipping and them, which does not even refer to any such letter having been issued by the vendor of the defendants (G & K Shipping) addressed to the predecessor-in-interest of the plaintiff (BEE Impex). If indeed the said letter had been issued by G & K Shipping and the same was in existence when the plaintiff derived right, title and interest in respect of its property, one is left guessing as to why the suit for declaration of easement right was not instituted by the plaintiff anytime before September 2007 and even thereafter till late 2010 and instead, the need arose to approach the defendants for entering into the MOU and the subsequent agreements for the period between September 1, 2007 and April, 2010. The plaintiff in paragraph 9 of the plaint averred that the defendants after 22 purchase of the property from G & K Shipping started obstructing the free ingress and egress of its men, agents and students. Purchase of the property of G & K Shipping by the defendants was in 2001, i.e. prior in point of time of acquisition of right, title and interest by the plaintiff by reason of the 3 (three) deeds of gift executed by BEE Impex in 2003. Contents of paragraph 9, therefore, do not inspire confidence regarding the conduct of the plaintiff, which is a relevant consideration for exercise of discretionary power. Paragraph 14 of the plaint reveals that the cause of action initially arose in 2003, and then again in 2007. Although no specific incident of 2003 is averred in the plaint but assuming that to be correct, there is no averment in the plaint as to how, between 2003 and September 1, 2007, the plaintiff had access to its property. It is not the plaintiff's claim that the defendants allowed it to use the said passage continuously during the aforesaid period unconditionally, or that the plaintiff exercising its right of dominant tenement continued user of the said passage. Over and above all these, why the plaintiff sought for special permission for motorable access each time the need therefor arose? These aspects do not appear to have been properly explained in the plaint or in the injunction application. A bare statement that the plaintiff was compelled to agree to a temporary arrangement on the dictating terms of the defendants cannot be considered sufficient explanation, at least at this stage, in the absence of other evidence; on the contrary, it seems to be more probable that the MOU and the subsequent agreements between the parties were executed voluntarily, without any existence of the letter dated July 16, 2001. It does warrant drawing an inference that user 23 of the said passage by the plaintiff, permitted by the defendants since September 1, 2007, is not an easement but a licence.

35. At its highest, the right claimed by the plaintiff and enforcement whereof is sought by instituting the suit could be based on an easement of necessity. It is needless to observe that the necessity of using the said passage must not be one of convenience but an absolute necessity, to continue so long the necessity is not extinguished. The specific plea of the plaintiff that there is no alternative access to its property has been refuted by the defendants. The trial Court did not endeavour to ascertain the real picture as to between the plaintiff and the defendants, who is right. It had the requisite power to direct on investigation for elucidating the matter in dispute, particularly when the affidavits revealed contesting claims. If the plea of the plaintiff is found to be untenable because of existence of an alternative passage for ingress to and egress from its property, it would be fatal for the frame of the suit itself and being erroneous per se, question of claiming declaration of easement right by the plaintiff would not arise. On the contrary, if the said passage is found to be the only access for the plaintiff to reach its property, it would be entitled to such relief that is available to it in law.

36. That the plaintiff has been allowed to use the said passage by the defendants since 2007 appears to have influenced the decision making process of the subordinate Courts. The terms and conditions whereunder the plaintiff was permitted to use the said passage were clearly overlooked, notwithstanding some references of the MOU here and there in the impugned orders. Mr. Roy Choudhury is correct in his contention that the intention of the parties at the 24 threshold of the agreement ought to have been decisive. The learned Judges of the subordinate Courts do not appear to have bestowed attention on this aspect of the matter. The legal consequences flowing from the MOU and the successive agreements were also not comprehended. The subordinate Courts failed to pose the appropriate question for an answer and adopted a fundamentally wrong approach in deciding the entitlements of the parties before them, without even venturing to ascertain the veracity of their claim regarding existence/non- existence of any alternative access. The orders impugned satisfy some of the tests of perversity as formulated in Biswanath Mukherjee (supra), and suffer from the vices of illegality and irrationality.

37. The decision in Joy Auto Works (supra) has been looked into. The Supreme Court while balancing the equities between the parties and being of the view that refusal to interfere might result in irreparable loss and injury made directions in paragraphs 45 and 46 of the report. No law having the effect of a binding precedent appears to have been laid down and the decision is confined to its facts.

38. In the result, I would feel inclined to interfere with the orders impugned. The same are set aside. The application under Order XXXIX Rules 1 and 2 of the Code stands revived. The learned Judge of the trial Court is requested to ascertain, in exercise of power conferred by the Code, whether the said passage is the only access to the plaintiff's property or not. Depending on the result of investigation, he shall proceed to pass appropriate order in accordance with law 25 and in the light of the above observations/findings, and thereby dispose of the application for injunction.

39. Till such time the application for injunction is decided one way or the other, the plaintiff's men/agents, and students and visitors destined for the college building/campus shall be entitled to use the said passage on foot for access as well as entitled to motorable access for light motor vehicles, without prejudice to the rights and contentions of the parties. It shall, however, not be entitled to motorable access for heavy vehicles for the present, but the trial Court may permit such access to it having regard to the facts ascertained in course of investigation as observed above. In the event a suitable alternative access is found to exist, the trial Court may, in its discretion, pass appropriate order as the circumstances warrant.

40. The learned Judge of the trial Court shall proceed with utmost expedition to hear the injunction application, since the pleadings are complete, after complying with the direction contained hereinabove. It would be desirable if the application is disposed of by the end of November, 2011. However, in any event, the application ought to be decided finally by the end of this year.

42. It is made clear that findings returned or observations made hereinabove are not to be construed as binding by the trial Court while the suit comes up for decision before it finally.

43. The revisional application stands allowed to the extent as aforesaid, without order for costs.

Urgent Photostat certified copy of this judgment and order, if applied for, shall be made available to the applicant at an early date.

(DIPANKAR DATTA, J.) LATER : As prayed for by Ms. Bhattacharya, let a copy of this judgment and order be transmitted to the trial Court by special messenger, cost wherefor must be put in by August 29, 2011. In default, it shall be transmitted in ordinary course (DIPANKAR DATTA, J.)

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Calcutta High Court (Appellete Side)