Calcutta High Court (Appellete Side)
(Sg) M/S. Shoeline Trading Private ... vs Space Resort Private Limited And Others on 30 August, 2016
Author: Sahidullah Munshi
Bench: Sahidullah Munshi
30.8.2016 C.O. 2894 of 2016 (7) (sg) M/s. Shoeline Trading Private Limited and Anr. Vs. Space Resort Private Limited and others Mr. Aniruddha Chatterjee, Mr. Arnab Sardar .. for the petitioners Mr. Joydeep Kar, Sr. Advocate, Ms. Suparna Mukherjee, Mr. Anjan Kumar Mukherjee .. for the opposite party no.1
This revisional application is directed against Order No. 20 dated 19th July, 2016 passed by the learned Judge, 6th Bench, City Civil Court at Calcutta in Title Suit No. 358 of 2016. The defendant nos. 1 and 2 are the petitioners before this Court.
It is the case of the petitioners that one Chandi Charan Pal was the original owner of premises nos. 3 and 4, Lindsay Street, Kolkata-700087 (hereinafter referred to as the said premises). The said Chandi Charan Pal by a registered deed of lease dated 17th August , 1967 leased out the said premises in favour of one Tara Sankar Ganguly and his brother Bhabani Sankar Ganguly. Tara Sankar Ganguly and Bhabani Sankar Ganguly became the lessees in respect of the said premises. It has been contended that the said Chandi Charan Pal executed a Will and Testament in favour of his daughter, Smt. Jyotsna Chandra, who subsequently by a deed of conveyance dated 25th January, 2010 sold and transferred the entire property in favour of a company namely Tug Developer Pvt. Ltd. and the said company became the absolute owner of the said premises. It has been further contended that the defendant/petitioner no.1 is the sub-lessee in respect of half portion of premises nos. 3 and 4, Lindsay Street and the defendant no.4 granted sub-lease in respect of his undivided half share or interest of the said premises in favour of the defendant no.1.
It has been stated by the petitioners that the plaintiff/opposite party no.1 is claiming to be the sub-lessee in respect of 50% undivided share over and above the premises nos. 3 and 4, Lindsay Street having acquired the same from one Tara Sankar Ganguly by a Deed of Assignment dated 30th May, 2014.
It is the case of the petitioner/defendant no.1 that he prayed for permission before the superior landlord/ owner of the said premises vide its letter dated 12th February, 2016 for construction of an underground water reservoir. The said landlord/owner duly permitted the defendant no.1 to construct the underground water reservoir. The petitioners submit that the owner of the said premises has already given consent to the defendant no.1/petitioner for constructing the said underground reservoir. The defendant no.1 also submits that the building is lying and situated in a densely populated area just opposite to New Market and there is no other resources in the nearby place for water. He submits that recently and in the past also incidence of fire hazard took place in the locality. Therefore, according to him it is necessary that the defendant no.1/petitioner no.1 may be permitted to construct the said underground water reservoir at the said premises. According to the petitioner/defendant no.1 has started construction of water reservoir in compliance with the direction passed by the West Bengal Fire and Emergency Services and after obtaining permission from the superior landlord of the building he started digging out the space in the said premises which is used as a passage. The petitioners further submit that the said passage is exclusively used and occupied by 'Sreeleathers' a sister concern of the defendant no.1/petitioner no.1 for egress of their customers. According to the petitioners, the plaintiff has no right, title and interest over the said premises. Therefore, the plaintiffs' permission was not necessary. However, so far as the permission from the Kolkata Municipal Corporation is concerned, the defendant/petitioner no.1 duly applied and whereas water supply department of Kolkata Municipal Corporation has issued a 'No Objection Certificate' for such work.
The plaintiffs/opposite parties submit that the petitioner has no right to excavate the land in question and that the plaintiffs without permission from the competent authority have indulged in unauthorised construction in the said premises without taking into consideration the safety and security of the inmates of the building and without taking appropriate measures against the danger due to the storage of water into the dug out portion of the land which has become a mosquito breeding ground. The opposite party filed a suit for declaration that the defendant nos. 1 and 2 have no right to make any construction of water reservoir or any other nature of construction on the common passage of premises nos. 3 and 4, Lindsay Street. They have also prayed for permanent injunction restraining the defendant nos. 1 and 2 from making any construction and from proceeding with the work of constructions of the underground reservoir and/or causing any connection of the Ferule at the back side common passage of the premises nos. 3 and 4, Lindsay Street.
In the said suit the plaintiff also filed an application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure for an injunction. On the said application the learned Court below has passed an ad-interim order of injunction in absence of the petitioners/defendants. After such exparte order of injunction was passed on 17th March, 2016 the defendants have entered appearance and filed vokalatnama on 29th March, 2016. The defendants also prayed for time to file written statement. After the defendants entered appearance in the suit as also the injunction application the plaintiffs filed another application on 12th April, 2016 and prayed for an order directing the defendants to remove the soil stacked on the said passage and/or to close the dug up portion. On the said application, the learned Court below again passed an ex parte order on 12th April, 2016 and allowed the plaintiffs' application for filling up the earth over the excavated portion.
It is the grievance of the petitioners that although the defendants entered appearance on 29th March, 2016 the learned Court below without perusing the records passed an ex parte order which according to the petitioners is illegal and should be set aside. The petitioners thereafter filed an application for recalling of the said order. However, temporary stay was granted by the learned Court below on 29th April, 2016 by Order No. 6. The records reveal that the defendants/petitioners filed an application under Order XXXIX Rule 4 of the C.P.C. for vacating the ex parte interim order passed initially on 17th March, 2016. Ultimately on 19th July, 2016 the application for filling up of the excavated portion has been allowed by the learned Court below by the order impugned.
From the order-sheet it appears that although the defendants/petitioners filed application for vacating the ex parte order. The learned Court below kept the said application pending and heard out other applications filed by the plaintiffs and continue to grant extension of the ex parte interim order day after day. It has been submitted by the learned Advocate for the petitioners that in all fairness learned Court below ought to have disposed of the application under Order XXXIX Rule 4 of the Code of Civil Procedure first and ought not to have granted extension of the ex parte interim order passed initially on 17th March, 2016.
Before passing the order impugned it was the duty of the Court to take into account of Rule 3A of Order XXXIX which says that where an injunction has been granted without giving notice to the opposite party, the Court shall make endeavour to finally dispose of the application within thirty days from the date on which the injunction was granted and where the Court is unable to do so, it should record its reason for such inability. Admittedly, in this case, order of ex parte injunction was issued on 17th March, 2016 and these defendants entered appearance on 29th March, 2016, i.e., within a period of 12 days. Even then, the lelarned Court below passed ex parte orders and granted extension of the ex parte order of injunction time to time. After Order No.4 last order was Order No. 20 dated 19th July, 2016, meaning thereby 18 orders have been passed and the learned Court below continued to grant extension of the ex parte interim order on the prayer of the plaintiff but did not bother to dispose of the injunction application within a period of thirty days if an ex parte order has been issued and if the application cannot be disposed of the Court is to assign reason but no such reason appears to have been given in the subsequent orders when the ex parte interim order was extended time to time. By the initial order the learned Court below passed an ad- interim order of injunction restraining the defendant nos. 1 and 2 from making any construction and from proceeding with the work of construction of the underground reservoir and causing any connection of ferule at the backside of the common passage of premises nos. 3 and 4, Lindsay Street. The defendants were also restrained by an order of injunction from creating any obstruction for user of common passage to the plaintiff for a period of three weeks. Even after such an order was on record and being in force between the parties, learned Court below has failed to give any reason for passing ex parte order on 19th July, 2016. The way the learned Court below has passed the impugned order it seems that it has interfered with its own earlier order of ad interim injunction.
The learned Court below while passing the order impugned and allowing the petitioners' application has taken into consideration about the obstruction to the common passage and possibility of health hazard due to the dug up portion of the said land. This Court is informed by the learned Counsel appearing for the parties that the dug up portion has not yet been filled up. The order passed by the learned Court below has been implemented by removing the stacked soil from the common passage and the common passage has been made obstruction free. Therefore, since the Court has passed the ad-interim injunction only on consideration of a prima facie case, there cannot be any apprehension of the petitioners at this stage because the injunction application as well as the application filed by the defendant no.1 for vacating the ex parte interim order are yet to be disposed of by the learned Court below on merit. On perusal of the application filed by the plaintiff (Space Resort Private Limited) on 12th April, 2016 it appears that the scope of the said application is very limited and it was restricted to an order directing the defendants to remove the soil stacked on the said passage and/or to close the said dug up portion. Therefore, in view of the prayer so made by the plaintiffs the learned Court below has allowed the said application and since this Court is informed that the dug up portion has not yet been closed and only the stacked soil has been removed from the common passage, I modify the order impugned by directing the parties to maintain status quo as regards the said common passage and the dug up portion as on date. Such order of status quo shall continue to operate till disposal of the applications under Order XXXIX Rules 1 and 2 filed by the plaintiffs and the application under Order XXXIX Rule 4 filed by the defendants. Having regard to the gravity of the situation involved in this case and having regard to the urgency involved, and since it has been submitted that affidavits have already been exchanged between the plaintiffs and the defendants, I direct the learned Court below to dispose of the pending applications within a period of fifteen days from the date of communication of this order without granting any unnecessary adjournments to either of the parties. If necessary, the learned Court below shall dispose of those applications upon hearing day to day basis. The order impugned is modified to the above extent.
The revisional application is disposed of.
( Sahidullah Munshi, J. )