Calcutta High Court (Appellete Side)
Salarpuria Sattva Realty Llp vs Prosanta Mondal & Ors on 9 December, 2019
Author: Shampa Sarkar
Bench: Shampa Sarkar
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S/L 31
09.12.2019
Ct. No. 19
GB
C.O. 4094 of 2019
Salarpuria Sattva Realty LLP
Vs.
Prosanta Mondal & Ors.
Mr. Aniruddha Chatterjee,
Mr. Sounak Bhattacharjee,
Mr. S. Sarangi.
... for Petitioner.
Mr. Amal Krishna Saha,
Mr. Bidyut Kr. Halder,
Mr. Indranil Halder.
... for Respondents.
This is an application filed by the developer in respect of the 14 Bighas, 5 Kattahas of land with structure and fixtures including boundary walls situated at Holding No.129, Dihi-55 Tangra No.2833 being the A Schedule property.
The opposite parties nos. 1 to 38 filed a suit before the leaned Civil Judge, Junior Division, 1st Court at Alipore, District 24 Parganas (South) which was registered as Title Suit No.1486 of 2019. The other opposite parties nos. 39 to 46 are proforma opposite parties. They are the owners of the property who have entered into an agreement with the petitioner. The petitioner was not made a party in Title Suit No.1486 of 2019. The opposite parties nos. 1 to 38 are represented. Service of the notice upon the opposite party nos. 39 to 46 is dispensed with, as they are proforma opposite parties in this revisional application.
In this application, the petitioner has prayed for leave to challenge the order dated September 30, 2019 passed by the learned District Judge at Alipore, District 24 Parganas (South). By the order impugned, the learned District Judge granted an order of status quo with regard to the possession with respect to the suit property. It is alleged that the original defendants who are the owners are not interested as they are not affected by this order, inasmuch as, it is the developer who has made substantial construction and investment on the property and the petitioner/developers will suffer irreparable loss and injury, if such ex parte ad-interim order was allowed to continue, inasmuch as, the developer was running against time to complete the building as per the agreement entered 2 into with the third parties as also with the owners of the property. As such leave as prayed for is allowed.
Records reveal that on a prayer for ad interim injunction by the plaintiffs before the learned Civil Judge, Junior Division, 1st Court at Alipore in Title Suit No.1486 of 2019, the prayer for ad interim injunction was refused on September 26, 2019 on the ground that the petitioner had failed to establish a prima facie title in respect of the suit property. The learned Trial Judge had given his own reasons while rejecting the prayer for ad interim injunction and had fixed January 2, 2020 for hearing on the point of maintainability of the suit. The learned Trial Judge had also directed issuance of notice upon the defendants to show cause within 15 days from the date of receipt of the notice, as to why an order of interim injunction should not be passed.
Being aggrieved, the plaintiffs/opposite party nos. 1 to 38 filed Misc. Appeal No.290 of 2019 before the learned District Judge at Alipore, District 24 Parganas (South). The learned District Judge upon considering the application for temporary injunction passed an order directing the parties to maintain status quo with regard to the possession of the property by an order dated September 30, 2019.
Mr. Chatterjee, learned advocate appearing on behalf of the petitioner submits that the order suffers from illegality and material irregularity, inasmuch as, the property has been developed considerably and ten storeys had already been constructed. At this juncture, without deciding the prima facie case of the petitioner and the balance of convenience and inconvenience as also the fact of irreparable loss and injury, the learned Appellate Court could not have passed an order of ad interim injunction.
Mr. Saha, learned advocate appearing on behalf of the plaintiffs submits that the petitioner has not filed a show-cause to the application for temporary injunction and whether the prima facie case has been made out by the plaintiffs and/or balance of convenience and inconvenience is in favour of the plaintiffs or in favour of the defendants would be decided only after such show-cause/objection was filed by the petitioner. Mr. Saha also submits that the proper course of action would be for the petitioner to approach before the Court below for getting added as a party-defendant and file an objection. Mr. Saha further submits that in the absence of any objection, the contentions of the plaintiffs as averred in the plaint should be taken as true and admitted.
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Having gone through the order of the learned Trial Judge dated September 26, 2019, I find that upon perusal of the R.S. Record of Rights and upon consideration of the prima facie title of the petitioner, the learned Trial Judge was of the opinion that the plaintiffs had failed to make out a prima facie case, which would justify an ad interim order of injunction in their favour without hearing the defendants.
However, the learned Lower Appellate Court while passing the order impugned, on an application for stay in the Misc. Appeal filed by the plaintiffs, did not take into account the findings of the learned Trial Judge, nor did the learned Appellate Court itself take into consideration the prima facie title of the plaintiffs, the balance of convenience and inconvenience, the conduct of the parties. It would be evident from the plaint that the suit was belated. Thus the order of maintenance of status quo at the ad interim stage, without assigning any reasons and without dealing with these aspects was not proper. There is also another aspect, inasmuch as, the petitioner who is the developer and had substantial interest in the property has not been impleaded as a defendant in the suit or as a respondent in the appeal. They are necessary and proper parties in the proceeding. The learned Courts below will add the petitioner as a party to the proceeding in the suit as also in the Misc. Appeal.
The Hon'ble Apex Court in the decision of Mandali Ranganna And Others v. T. Ramachndra And Others reported in (2008) 11 Supreme Court Cases 1, has held that it is trite that while considering an application for grant of injunction, the Court will not only take into consideration the basic elements, namely, existence of prima facie case, balance of convenience and irreparable injury but it must also take into consideration to conduct of the parties. It has also been held that the Courts while dealing with such applications shall make all endeavour to protect the interest of the parties and must apply its mind. Finding of a prima facie case, balance of convenience and inconvenience are finding of facts which should have been considered by the learned Appellate Court objectively. Moreover, while granting an order of status quo, status of the parties or status of the property should also be taken into consideration. In the matter of Renu Devi Jalan v. Iswar Saradeswar Shibaling Jew reported in 2017 (2) CHN (CAL) 322 passed by a Division Bench of this High Court it was held that in a suit which was admittedly belated, ad interim injunction should not ordinarily be passed.
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The learned lower appellate Court has failed to exercise his jurisdiction in accordance with law. The order dated September 30, 2019 is quashed and set aside for the reasons mentioned hereinabove. The application for ad interim injunction filed in Misc. Appeal No.290 of 2019 by the plaintiffs shall be heard afresh upon service of the copy of the same to the petitioner. The petitioner would be added as respondent in the said appeal. The application for stay will be served upon the learned advocate on record for the petitioner who will be appearing in the Court below within the course of this week. Objection to be filed within a week thereafter. The learned District Judge at Alipore is directed to decide the application for stay filed in connection with Misc. Appeal No.290 of 2019 within two months from the date of communication of this order.
This revisional application is, thus, disposed of.
There will be, however, no order as to costs.
Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis.
(Shampa Sarkar, J.)