Calcutta High Court (Appellete Side)
Sri Sri Bhakti Sadhan Sadhu Maharaj vs Eco on 28 November, 2019
Author: Shampa Sarkar
Bench: Shampa Sarkar
1 Sn 28.11.19 C.O. 3959 of 2019 26 SRI SRI BHAKTI SADHAN SADHU MAHARAJ VS. ECO FRIENDLY REAL ESTATE Mr. Soumak Bera ..for the petitioner Mr. Sudip Sanyal Mr. Sukanta Das ..for the opposite part nos.
1(b) & 2 The issue which has fallen for decision is whether the learned Additional District Judge, Redesignated Court of Paschim Midapur erred in law in passing the order dated 14the November, 2019 in Misc. Appeal No.31 of 2019.
The petitioner claims to be the shebait and residence of Shyamananda Gouriya Math. The petitioner filed a Title Suit No.2951 of 2017 in the Court of the learned Civil Judge, Junior Division, 3rd Court at Paschim Medinipur on the allegation that the opposite parties had raised construction on the neighbouring plot without a sanctioned plan and/or on the basis of an illegal plan and such construction was being carried out in violation of the Building Rules without leaving adequate space between the 2 Shyamananda Gouriya Math and the site of construction, which was a commercial construction undertaken by the Eco Friendly Real Estate.
On the prayer of the petitioner, temporary injunction was granted by the learned Civil Judge, Junior Divison, 3rd Court at Paschim Medinipur restraining the defendants from causing any obstruction in the enjoyment and peaceful possession of the plaintiff in respect of the suit property mentioned in the schedule of the plaint. The schedule of the property is quoted below:
"SCHEDULE OF THE PROPERTY District - Paschim Medinipur, Police Station - Kotwali(Midnapur) J.L. No.185, Mouza Nabinabag Barabazar, Khatian No.1132(L.R.2080) Plot No.‐R.S.989 (L.R. 1589), Nature Bastu Vacant land, Area‐ 0.063 acre. Municipal Ward No.9(New 10)municipal holding no.40/37(Full) North‐ Jharna Santra South ‐House of Shyam Sundar Jana East‐ Municipal Road West - Shyamananda Gouriya Math"
Aggrieved, the opposite parties filed a Misc. Appeal No.31 of 2019. The learned Additional District Judge, Redesignated Court at Paschim Midnapur, by an order dated 3 November 14, 2019 rejected the order of temporary injunction, and allowed the Misc Appeal.
The learned Additional District Judge found that in support of the contention the opposite parties/defendants have filed a development agreement, power of attorney, sanction plan, M.K.D.A. permission and the master plan, whereas, on the other hand, the plaintiff only made an allegation of illegal construction. The plaintiff did not produce any document in support of his contention. The learned Court of Appeal found that whether the petitioner had the locus standi to file the suit was not considered by the learned Trial Judge.
Upon perusal of the report of the Commissioner, the learned Trial Court had passed an order of injunction. However, the nature of injunction passed does not in any way prevent any construction on the area of the opposite parties.
The nature of injunction is that the defendants should not cause any construction in the peaceful possession of the plaintiff in respect of the suit property of which 4 admittedly the defendants are the rightful owners. Thus, the nature of injunction passed is a blanket injunction allowing the petitioner to enjoy the property, which belongs to the defendants/opposite parties. This cannot be the purpose of an order under Order 39 Rules 1 and 2 of the Code of Civil Procedure.
The learned Trial Judge did not consider the report of the Commissioner in its correct perspective. The order of injunction should be passed in the aid of the main relief. The learned Trial Court held that if it is found later that illegal construction had been going on then the plaintiff as the adjoining land owner would suffer irreparable loss and injury. The learned Trial Judge did not consider the prima facie case and balance of convenience of the parties. The right of plaintiff to bring the suit in his personal capacity and whether the suit was bad for non‐joinder of the Municipality, are matters to have been considered by the learned Trial Judge in order to arrive at a finding that the plaintiff had made out a prima facie case.
Under such circumstances, at this stage, the 5 balance of convenience and/or inconvenience would be against any order restraining the defendants from obstructing the plaintiff's enjoyment of the schedule property, which admittedly belongs to the defendants. Thus allowing the prayer in this application would cause undue hardship to the defendant.
In Bepin Krishna Sur and ORS. VS. Gautam Kumar Sur and Ors. reported in 85 CWN page 393 21, it has been held that when an order of injunction may cause undue hardship to a party or has caused adverse repercussion which was disproportionate to the need for which the same had been passed, the court in its discretion may discharge, vary or modify the said order.
In Dalpat Kumar and others vs. Prahlad Singh and others reported in AIR 1993 Supreme Court 276, it has been held that the court has to exercise sound judicial discretion in granting an injunction in the suit. Paragraph 5 of the said judgment is quoted below:
"Paragraph 5: Therefore, the burden is on the plaintiff by evidence aliunde by affidavit or otherwise 6 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 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 noninterference 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 that "the balance of 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 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."
The order dated November 14, 2019 passed by 7 the Additional District Judge, redesignated Court, Paschim Mednapur does not call for any interference at this stage, inasmuch as, having considered the balance of convenience and inconvenience the lower appellate court came to a finding that if it was found that the construction was illegal then the court could direct demolition of the illegal construction as there was a prayer for mandatory injunction in the plaint. The lower appellate court also came to a finding that the defendants could not claim any equity in respect of such construction in view of the prayer for mandatory injunction.
Under such circumstances, this revisional application is dismissed.
There will be however no order as to costs. Urgent photostat certified copy of this order be given to the parties on priority basis, if the same is applied for.
(Shampa Sarkar,J.) 8 9 10