Calcutta High Court
Bank Of India And Etc. vs Sital Chandra Das And Ors. on 6 December, 1985
Equivalent citations: AIR1986CAL313, AIR 1986 CALCUTTA 313
Author: G.N. Ray
Bench: G.N. Ray
JUDGMENT G.N. Ray, J.
1. Second Appeal No. 1104 of 1979 arises out of the judgment and decree passed by the learned Additional District Judge, 13th Court, Alipore in Money Appeal No. 92 of 1977 reversing the judgment and decree passed by the learned Subordinate Judge of Alipore in Money- Suit No. 3 of 1973. The defendant 1, Bank of India, is the appellant in this appeal. The respondents 7, 8 and 9 viz. Brijkishore Bhagat, Sm. Durga Devi Bhagat and Nawal Kishore Bhagat being the defendants 2, 3 and 4 respectively in Money Suit No. 3 of 1973 have been impleaded in the instant appeal. But the said defendants viz. the Bhagats have also preferred an independent appeal before this Court against the judgment and decree passed in the said Money Appeal No. 92 of 1977 and the arguments advanced by the said Bhagats both as appellants in S.AT. No. 2843 of 1984 and respondents in S.A. No. 1104 of 1979 being the same, both the said appeals are being disposed of by the following judgment.
2. The short facts and circumstances concerning the above appeals may be stated as follows : --
Sital Chandra Das and his brothers instituted Title Suit No. 77 of 1959 in the 10th Court of the learned Subordinate Judge at Alipore for recovery of possession of the premises No. 103/1B, Raja Dinendra Street, Calcutta after evicting tenants and sub-tenants inter alia on the ground that the tenancy created in favour of the tenants under registered deed of lease had come to an end by efflux of time. In the said suit, M/s. Bhagat Oil Mills was impleaded as defendant 3 as the said Oil Mills became a sub-lessee in respect of the disputed premises. Sri Baijnath Bhagat appeared in the said suit as Proprietor of the said M/s. Bhagat Oil Mills and on his death, his widow Sm. Durga Devi Bhagat and his sons Sri Brijmohan Bhagat and Nawal Kishore Bhagat who are the defendants 2, 3 and 4 in the said Money Suit No. 3 of 1973 were substituted in the said Title Suit No. 77 of 1959. The said title suit was decreed and in execution of the decree the plaintiffs in the said suit recovered possession of the disputed godown through the bailiff of the Court and 3409 bags of oil seeds found lying in the said godown at the time of delivery of possession were kept under the custody of an employee of the plaintiffs decree-holders namely one Sri Sitaram Roy by the bailiff. The report of the bailiff showing delivery of possession and keeping the said oil seeds in the custody of the said Sri Sitaram Roy appears from Ext. 3. The Bank of India, the defendant 1, in the said Money Suit moved an application on 15th Jan. 1982 under Order 21, Rule 101 of the C.P.C. claiming to have been in possession of the said godown and the said goods at the time of execution of the decree alleged that the said Bank had been wrongfully dispossessed. The Bank prayed for recovery of possession of the said godown. On the said application under Order 21, Rule 101, C.P.C. Misc. Case No. 1 of 1972 was started. On the very same date viz. on 15th Jan. 1972, the said Bank obtained an ad interim order of injunction restraining the plaintiffs decree-holders from dealing with or disposing of or removing the said oil seeds. On 24th Jan. 1972, M/s. Banshidhar Baijnath also made an application under Order 21, Rules 100 and 101 read with Section 151 of the C.P.C. claiming to be the lawful subtenants in respect of the disputed premises. It was also stated in the said application that the said firm had pledged the said oil seeds and the Bank as. pledgee had taken possession of the said godown with the stocks therein. The said firm also prayed for being put back into possession of the godown. On the said application Misc. Case No. 3 of 1972 was started On the application of the said firm, an ad interim order was also passed by the learned Subordinate Judge, 10th Court at Alipore restraining the plaintiffs decree-holders from removing or damaging or dealing with the goods lying in the said godown until the disposal of the injunction application. The ad interim injunctions passed in both the said Misc. Cases were made absolute by consent of the parties. On 3rd June, 1972 the Bank of India filed an application for removing the oil seeds and after completion of inventory on 27th June, 1972 the Bank applied for permission of the Court to remove the said goods. The learned Subordinate Judge granted leave to the Bank to remove the said goods on certain terms. The Bank, however, made an application for stay of operation of the said order dt. 27th June, 1972 and such prayer for stay of the operation of the order was allowed. In Jan. 1973, the plaintiff landlords filed Money Suit No. 3 of 1973 in the 10th Court of the learned Subordinate Judge at Alipore against the Bank of India and also against the said Bhagats who were the heirs of Baijnath Bhagat and also the partners of the said firm M/s. Banshidhar Bhagat for a decree for damages for wrongful storing the oil seeds and other articles in the said godown of the plaintiffs and preventing the plaintiffs from utilising the godown from 15th Jan. 1972 till the presentation of the plaint. The case of the plaintiffs in the said money suit is inter alia that the plaintiffs obtained a decree for eviction against the said Bhagats and in execution of the decree the plaintiffs had been given possession of the disputed premises including the godown but as considerable time would have been wasted in removing the oil seeds found stored in the said godown, the said goods were kept by the bailiff of the Court in the custody of Sitaram Roy, an employee of the plaintiffs. That the defendant 1 Bank or the defendants 2, 3 and 4 viz. the said Bhagats were bound by the decree irrespective of the name of the firm in which they carried on the business and all the said defendants were under an obligation to remove the said goods from the said godown. It was also contended by the plaintiffs that by obtaining order of injunction wrongfully arid by not removing the goods in spite of the offers made by the plaintiffs and having kept their goods in the godown of the plaintiffs illegally and without any right, the defendants have made themselves liable for compensation and were bound to compensate the plaintiffs for the loss caused. A petition was also filed for ascertaining the mesne profit payable up-till the date of possession. The said Money Suit was contested both by the defendant 1 Bank of India and defendants 2, 3 and 4 viz. the Bhagats. It was contended by the defendants, Bhagats, that the oil seeds which had been kept in the custody of Sitaram Roy belonged to the said firm M/s. Banshidhar Baijnath and the said defendants denied the contention of the plaintiff that M/s. Bhanshidhar Baijnath was the compendious name for the defendant 1 Bank and the defendants 2, 3 and 4. The said defendants 2 to 4 also denied, that they had ever interfered with the plaintiffs' possession in respect of the godown and it was also contended that the said firm was not bound by the decree. The defendants denied the contention that the order of injunction had ever been obtained by the said defendants wrongfully. The said defendants also contended that the interim order passed in the said Misc. case was made absolute by consent of the parties and the said defendants admittedly not being in possession of the said godown were not liable for damages.
3. The defendant 1 also contested the Money Suit by filing written statement and it was inter alia contended by the said defendant 1 that the Money Suit was instituted when the order of injunction passed in the execution proceeding had been continuing and as such during the continuance of the said injunction order, the plaintiffs had no cause of action to institute the said Money Suit for damages. The defendant 1 also contended that there was no averment in the plaint that the order of injunction was applied for on insufficient grounds and in any event the order of injunction in respect of which the claim for damages was made was not passed in a suit but in art independent application of the defendant 1 under Order 21, Rule 100 of the C.P.C. The defendant 1 further contended that the Court had no power outside Section 95 to award damages and in the facts and circumstances of the case, the conditions of S, 95 of the C.P.C. having been fully satisfied the claim for damages made by the plaintiffs in any event was not maintainable. The defendant 1 also contended that the plaintiffe having consented to the order of injunction were estopped from claiming any damages arising out of thd order of injunction. The defendant 1 Bank also denied any knowledge of the execution of the said decree and it was contended by the defendant Bank that M/s Banshidhar Baijnath, the partnership firm was a constituent of the defendant 1 Bank and the said partnership firm had a current account with the defendant 1 Bank with cash credit faculties and the firm had pledged the goods from time to time lying in the said godown and obtained loan of several lacks of rupees. The defendant 1 as pledgee had taken possession of the godown together with the goods lying therein and on 14th Jan. 1972 the oil seeds in question were kept in the said godown under lock and key put in by the defendant 1 but some persons having removed the said padlocks and also removing the name plate of the defendant 1 tried to interfere with possession and also put their own padlocks for which the defendant No. 1 had to lodge a diary in the local police station and the defendant 1 thereafter filed an application under Order 21, Rules 100 and 101 of the C.P.C. to enforce the Bank's legal rights and for restoration of possession. In the aforesaid circumstances, the Bank denied any 'liability whatsoever to pay damages as claimed by the plaintiffs.
4. The learned Subordinate Judge inter alia came to the finding that the said oil seeds which were pledged with the Bank of India belonged to the partnership firm M/s. Banshidhar Baijnath and the Bank of India was mere pledgee and not the owner of the goods. The learned Subordinate Judge also held that the defendant 1, the Bank and the partners of the said firm viz. the defendants 2, 3 and 4 were not compendious name for the said firm M/s. Banshidhar Baijnath and the firm name was a compendious mode for describing the partners composing the firm.
The learned Subordinate Judge further held that the defendants did not interfere with the possession of the plaintiffs in the disputed godown when in fact the plaintiffs had recovered possession and they could throw away the said goods from the said godown before any interim order was passed on the applications made by the defendants under Order 21, Rules 100 and 101 of the C.P.C. The learned Subordinate Judge further held that the ad interim order of injunction passed on the said application under Order 21, Rules 100 and 101 were made absolute by consent of the plaintiffs and as such the plaintiffs have consented to get themselves prevented from removing goods of the godown. In the aforesaid circumstances, the plaintiffs could not be permitted to claim damages for use and occupation of the godown by the defendants. The learned Subordinate Judge further held that the order of injunction was obtained by the defendants on sufficient grounds and as such no compensation in the form of damages could be allowed in favour of the plaintiffs. In that view of the matter, the learned Subordinate Judge dismissed the said suit with costs against the defendants.
5. Being aggrieved by the aforesaid judgment and decree of the learned Subordinate Judge, the plaintiffs preferred an appeal which was numbered as Money Appeal No. 92 of 1977 of the 13th Court of the learned Additional District Judge, Alipore. The learned Additional District Judge inter alia came to the finding that although the plaintiffs had obtained possession by executing the decree for possession through the bailiff of the Court but at the time of taking delivery of possession of the godown a large stock of oil seeds had been found to be stored in the said godown and the plaintiffs had hardly any time to dispose of the said oil seeds because on the very next day of delivery of possession, the Bank filed application under Order 21, Rule 100 of the C.P.C. and the Bank obtained interim order of injunction on 15th Jan. 1972 restraining the plaintiffs from removing the oil seeds of the godown. Such interim injunction was also obtained by the defendants 2 to 4 shortly thereafter in Misc. Case No. 3 of 1972 initiated on an application under Order 21; Rules 100 and 101 and Section 151 of the C.P.C. and thereafter the said defendants continued their effort to keep the said order of injunction in force. The learned Additional District Judge was of the view that the plaintiffs could not let out the godown or utilise the same for no fault of the plaintiffs. The learned Additional District Judge was also of the view that both the pledger and the pledgee viz. the said Bank and the defendants 2 to 4 were jointly liable to the plaintiffs for making good the loss sustained by the plaintiffs on account of keeping the said goods in the godown. The learned Additional District Judge further held that the question of ownership of the oilseeds was not of paramount importance because both the Bank and the defendants 2 to 4 by obtaining interim orders prevented the plaintiffs from removing the oil seeds or disposing of the same from the said godown. The learned Additional District Judge further held that the plaintiffs were entitled to get compensation from the defendants 1 to 4 from 14th Jan. 1972 till the filing of the suit because the plaintiffs could not actually use the godown for their own benefit. In that view of the matter, the judgment and decree passed by the learned Subordinate Judge were set aside by the learned Additional District Judge and the suit was remanded back to the trial Court for the limited purpose for ascertaining the amount of damages to be awarded to the plaintiffs. The amount to be so ascertained by the learned Subordinate Judge would be the amount of the decree passed in favour of the plaintiffs. As aforesaid, against the said judgment and decree of the Court of appeal below, two sets of appeals have been preferred by the defendant 1 and the defendants 2 to 4.
6. Mr. Bhaskar Gupta. the learned counsel appearing for the appellant Bank of India in Section A. No. 1104 of 1479 after placing the relevant facts and circumstances of the case in details has contended that the claim for damages made by the plaintiffs is founded on three premises, viz. : --
(i) The claim for damages made in the suit is on account of use and occupation by the Bank of the suit premises, namely, the godown.
(ii) The claim is on account of trespass of the suit premises by the Bank.
(iii) Damages have been sustained by the plaintiffs on account of the Bank having obtained the order of injunction without reasonable and probable cause and maliciously.
Mr. Gupta has contended that the premise of any action for use and occupation is totally lacking because on 14th Jan. 1972 the possession of the godown had been taken over by the bailiff and handed over to the plaintiffs viz. the decree-holders. The godown is not the same thing as the goods inside it and the decree-holder-plaintiffs have no right in respect of the oil seeds in question. After 14th Jan. 1972, the Bank was not in possession of the godown. It was also not in possession of the oil seeds because the oil seeds were kept in custody by the bailiff of one Sitaram Roy, an employee of the decree-holder. Mr. Gupta has contended the claim for damages against the Bank should therefore be dismissed and it is immaterial to consider whether or not there was reasonable and probable cause for obtaining the order of injunction by the Bank. Mr. Gupta has contended that an action for use and occupation can be brought by the landlord provided the landlord has not created a tenancy of ease, wherever there is a relationship of landlord and tenant (other than by reason of a mere statutory tenancy), and wherever the landlord has permitted the defendant to occupy the land with the intention of creating that relationship. To maintain an action for damages for use and occupation the landlord must show an express and implied contract with himself. In support of this contention Mr. Gupta has referred to Halsbury's Laws of England (4th Edition), Vol. 27, page 1%, para 254. Mr. Gupta has also referred to Woodfall on Landlord and Tenant (28th Edition), Vol. I, Chapter 10, page 413, para 1-1031 in support of the said contention. Mr. Gupta has contended that in the instant case the plaintiffs being in actual physical possession of the godown and the Bank only having the claim of the oil seeds as the pledgee cannot be saddled with any decree for damages on account of unlawful possession of the said godown by the Bank. Mr. Gupta has also contended that there cannot be any claim of the plaintiffs for damages on account of trespass by the Bank in respect of the suit premises. For constituting a cause of action of trespass, the initial possession by the defendants of the plaintiffs land must be wrongful or even if the initial possession is not wrongful, the continuance of possession must be wrongful. In the instant case the status quo with regard to possession had been completely altered on the 14th Jan. 1972 when the possession of the godown was handed back to the plaintiffs in execution of the decree by the bailiff of the Court. Accordingly the question of the Bank's wrongfully continuing to be in possession cannot and does not arise.
7. Mr. Gupta next contended that in any event, the order of injunction was obtained by the Bank for good and sufficient reasons and such ad interim order of injunction was also made absolute by consent of parties. Accordingly no damage can be claimed by the plaintiffs for any loss on account of an order of injunction restraining the plaintiffs from removing or disposing of the oil seeds because of the order of injunction being passed on sufficient grounds. In this connection, Mr. Gupta has referred to a Bench decision of this Court made in the case of Bhupendra Nath CChatterjee v. Sm. Trinayani Devi reported in AIR 1944 Cal 289. Mr. Gupta has contended that the cause of action for damages for injunction is in the nature of an action for malicious abuse of the process of the Court. It has to be shown not merely that the injunction was obtained on insufficient grounds as is demonstrated by the subsequent result but the plaintiffs must go further and prove that there was no reasonable and probable cause upon which the application for injunction could be founded and the defendant was actuated by malice. It has been held in the aforesaid Bench decision of this Court that to sustain an action for damages on the ground of an improper injunction being taken out against the plaintiffs, it would be necessary to prove the usual ingredients of malicious abuse of judicial process and no action for trespass could lie unless the order was void for want of jurisdiction and there was actual entry upon or wrongful interference with the plaintiffs property. Mr. Gupta has contended that there was no pleading of malice in the plaint and it cannot be contended that the injunction was obtained without reasonable or probable cause. Referring to Order 6, Rule 10 of the C.P.C. Mr. Gupta has contended that malice is a state of mind and has to be pleaded as fact. Mr. Gupta has next contended that none of the two judgments in the Court below indicates that the parties or the Court had adverted to the question of malice or of want bf reasonable and probable cause in obtaining the order of injunction. Mr. Gupta has also submitted that the issues raised in the suit do not indicate that any question of malice was in tended to be raised or evidence was led or discussed at the trial on that score. The only pleading in the plaint was that the order of injunction was obtained wrongfully. 'Wrongfully' does not mean 'malice'. 'Malice' has been defined in Stroud's Judicial Dictionary (4th Edition), Vol. 3, page 1608 as meaning, in common acceptation, "ill will against a person" and in its legal sense, "a wrongful act done intentionally without just cause or excuse". It is, therefore, a necessary ingredient of malice that the state of the mind of the person who is charged with malice is to be alleged and proved. Mr. Gupta has also contended that malice and want of reasonable and probable cause are also necessary ingredients in an action for malicious prosecution. In this connection, he has referred to paras 18-34 at page 877 of Clerk and Lindsell on Torts (15th Edition). Malice for the purposes of malicious prosecution has been stated to consist of the following ingredients : --
"The term 'malice' in this form of action is not to be considered in the sense of spite or hatred against an individual, but of malus animus and as denoting that the party is actuated by improper and indirect motives."
Mr. Gupta has contended that if a plea is not specifically made but yet if the same is covered by an issue by implication and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. But in the facts of the case, it cannot be contended that the parties had advened to the question of malice or that any opportunity was given to the Bank to lead the evidence on that question. Mr. Gupta has contended that when all the evidences have come home the plaintiffs cannot be permitted to pick and choose from such evidence and try to reconstruct a case of malice when as a matter of fact issue as to malice was neither expressly raised or even impliedly raised and contested. Mr. Gupta has submitted that the oil seeds were admittedly the security of the Bank for advances made. On 14th Jan. 1972, the godown in which such security was stored had changed hands and possession was given to the plaintiffs. The safety and security of the said goods were therefore in danger and the Bank had reasonable grounds of apprehending that it may lose its security in the execution process where possession was being interfered with. The decree did not cover the pledged goods and that is all the more reason why the Bank had reasonable and genuine apprehension for the security of the goods. The landlords decree-holders were not interested in those goods and the judgment-debtors were bound by the decree. It was, therefore, in the Bank's interest to move as quickly as possible for protection of its security. Mr. Gupta has submitted that it should not be lost sight of that the Bank being a public sector undertaking, it cannot jeopardise its security in any manner. Mr. Gupta has also contended that Sitaram Roy was appointed a custodian by the bailiff in execution of the decree for recovery of possession of the godown and Sitaram Roy was put in charge of the pledged goods. The order of injunction which was directed against the landlords who obtained possession of the godown could not prevent Sitaram Roy to ask for removal of the goods from his custody. As a matter of fact, Sitaram Roy made an application for removal of the goods in Aug. 1973, but thereafter he agreed to continue in custody and keep the goods in the godown before this Court which will appear from the judgment of this Court dt. 26th June, 1975 in an interlocutory proceeding taken in this Court. The plaintiffs agreed to the order of injunction being continued first on 27th May, 1972 and thereafter before this Court in the revisional application filed by the defendants 2 to 4, viz. the Bhagats and finally in the revisional application presented by Sitaram Roy. In the aforesaid circumstances, the plaintiffs cannot be permitted to complain of any wrongful interference by the Bank or of the order of injunction prejudicing them in any manner entitling them to a claim for damages. Mr. Gupta has also contended that the plaintiffs have also failed to make out any case on damages under Section 95 of the C.P.C. and no case for such damages under Section 95 of the C.P.C. has been made out either at the trial Court or before this Court. Accordingly the Court of appeal below was absolutely wrong in reversing the judgment and decree of the trial Court. Mr. Gupta has, therefore, contended the appeal must succeed and the suit must be dismissed so far as the appellant Bank of India is concerned.
8. Mrs. Ruma Pal, the learned Counsel appearing for the respondents 7, 8 and 9 namely the Bhagats also adopted the arguments advanced by Mr. Gupta that no suit for damages was maintainable because the plaintiffs-decree-holders were in possession of the goods and there was no malicious prosecution for obtaining the orders of injunction by the defendants and the said order of injunction having been obtained on sufficient and just grounds, the claim for damages is not maintainable. Mrs. Pal has also contended that Title Suit No. 77 of 1959 was instituted by Sital Chandra Das and others for eviction of the tenants and sub-tenants from premises No. 103/1B, Raja Dinendra Street, Calcutta including the godown. M/s. Bhagat Oil Mills was impleaded as defendant 3 being a sub-lessee in respect of the suit premises and one Baijnath Bhagat appeared in the said suit as Proprietor of M/s. Bhagat Oil Mills. During the pendency of the said suit Baijnath Bhagat died and his widow Durga Devi Bhagat and his sons Brijmohan Bhagat and Nawal Kishore Bhagat were substituted as the heirs and legal representatives of Baijnath Bhagat. The said heirs are defendants 2, 3 and 4 in the Money Suit in question. Mrs. Pal has contended that 'legal representative' has been defined in Section 2(2)(ii) of the C.P.C. as meaning "a person who in law represents the estate of the deceased person, and includes any person who intermeddles with the estate of the deceased and where a party is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued." Mrs. Pal has contended that the interest of the said heirs viz. the defendants 2 to 4 as partners of the firm of M/s. Banshidhar Baijnath was and is distinct from their interest as heirs of Baijnath Bhagat, the deceased defendant. Being substituted as heirs of Baijnath Bhagat, the said heirs viz. the defendants 2 to 4 were restricted in making such defence which was appropriate to their character as legal representatives of the deceased defendant. The suit for eviction was decreed on contest against the tenants and ex parte against the other five defendants including the three heirs of Baijna.th Bhagat. In the circumstances, the decree was binding on the defendants 2 to 4 to the extent they were the heirs of Baijnath Bhagat but it did not affect their right and interest as partners of M/s. Banshidhar Baijnath. The firm claimed to be a sub-tenant in the said godown in its own right and the said firm had pledged its stock of oil seeds to the Bank of India in order to effect delivery of the pledged goods to the said Bank. The firm handed over possession of the said godown to the Bank and the said godown was kept under lock and key of the Bank of India. It is an admitted position that prior to 14th Jan. 1972 the goods in the godown were in the actual custody and control of the Bank as pledgee. On 15th Jan. 1972 the Bank moved an application under Order 21, Rule 101 of the C.P.C. and the Bank also obtained an interim order of injunction in the said proceeding restraining the plaintiffs landlords from dealing with or disposing of or removing the oil seeds. After that, on 24th Jan. 1972 the firm M/s. Banshidhar Baijnath also made an application under Order 21, Rules 100 and 101 read with Section 151 of the C.P.C. and on the application of the firm an ad interim order was passed on the said date restraining the plaintiff landlords for removing or damaging or dealing with the goods lying at the godown till the disposal of the injunction application. The ad interim orders of injunction passed on the applications of the Bank and the defendants 2 to 4 were made absolute by consent of parties on 25th May, 1972. When on 3rd June, 1972 the Bank made an application in Misc. Case No. 1 of 1972 for removal of the oil seeds, the defendants Nos. 2 to 4 apprehending that the Bank had no real interest for the safety of the said pledged goods but it had been acting in collusion with the plaintiffs landlords opposed the said application of the Bank. Mrs. Pal has also submitted that although apprehending the collusion of the Bank with the plaintiffs the defendants 2 to 4 objected to the prayer of the Bank for removal of the said goods, such petition of objection of defendants 2 to 4 was, however, not allowed by the learned Subordinate Judge. On the contrary, on 13th July, 1972 the Bank, filed a petition inter alia stating that it was not willing to remove the said goods subject to the conditions imposed by the Court by its order dt. 27th June, 1972. The defendants Nos. 2 to 4 moved revisional application against the order dt 27th June, 1972 inter alia contending that the said defendants had interest in the valuable securities and they apprehended that the Bank was acting in collusion with the plaintiffs. After hearing the parties including the plaintiffs landlords, a Rule was issued by this Court but no interim stay was granted and ultimately the Rule itself was made absolute on the ground that the basis of the impugned order dt. 27th June, 1972 had gone inasmuch as the Bank itself had made an application in the Court below inter aha stating that the Bank was no longer willing to remove the goods from the godown. In the aforesaid circumstances, it cannot be contended that the defendants 2 to 4 interfered with the possession of the said godown after recovery of possession of the said godown by the plaintiffs in execution of the decree. It also cannot be contended that the defendants had possessed the said goods kept in the godown possessed by the plaintiffs. Mrs. Pal has also contended that the defendants 2 to 4 had moved the application for injunction on sufficient grounds because they had sufficient interest in those valuable goods stored in that godown and the order of injunction was passed by the Court on being satisfied that an interim order was called for in the facts and circumstances of the case. Mrs. Pal has contended that the order of injunction was not obtained by the defendants 2 to 4 either maliciously or on insufficient grounds and the money suit was instituted while a valid order of injunction was continuing in favour of the defendants. Mrs. Pal has further contended that in any event, the ad interim orders were made absolute by the Court in the said Misc. Cases by consent of the parties and the plaintiff being a consenting party to the continuance of the order of injunction cannot be permitted to contend that the plaintiffs have suffered loss and damages because of the injunction passed against the plaintiffs at the instance of the defendants 2 to 4. Mrs. Pal has further contended that the Bank had obtained the order of injunction prior to the order of injunction was obtained by the defendants 2 to 4. So the plaintiffs have not suffered any damage because of the order of injunction obtained by ihe plaintiffs. Even if the plaintiffs would not have obtained the order of injunction, the plaintiffs had suffered the order of injunction at the instance of the defendant 1. Mrs. Pal has therefore, contended that the impugned judgment and decree of the Court of appeal below should be set aside.
9. Mr. Saktinath Mukherji, the learned counsel appearing for the plaintiffs respondents has submitted that the case of the plaintiffs respondents is founded on the allegations that by obtaining order of injunction wrongfully and by not removing the goods from the godown in spite of the offers made by the plaintiffs, the defendants have made themselves liable for compensation and they are bound to compensate the plaintiffs for the loss caused to them. Mr. Mukherji has contended that the defendants by their actions have prevented the plaintiffs from utilising the godown for profitable purposes of the plaintiffs. Mr. Mukherji has also contended that in spite of the notice and assertion by the plaintiffs about the substantial loss being suffered by the plaintiffs and even in spite of the fact that the Court had passed an order enabling the Bank to remove the said goods by its order dt. 27th June, 1972 on the basis of Bank's own application, the Bank chose not to remove the said goods and as a matter of fact withdrew the said petition for removal of the goods for which the order dt. 27th June, 1972 was set aside by the High Court on the score that because of the subsequent stand taken by the Bank not to remove the said goods, the order dt. 27th June, 1972 allowing the Bank to remove the said goods had become infructuous. Mr. Mukherji has also contended that the Bank having entered into the transaction lis pendens is bound by the result of the suit and the defendants 2 to 4 being judgment-debtors and the Bank claiming to be the pledgee under the said defendants 2 to 4 were aware of the execution and as such was bound to remove the goods. Mr. Mukherji has contended that two questions are really involved in the instant suit, namely (a) Whether or not the defendants were liable for damages for having obtained an injunction wrongfully ? and (b) Whether or not the defendants were so liable for the use and occupation of the godown? Mr. Mukherji has contended that the trial Court dismissed the suit holding against the plaintiffs on both the said questions, but the Court of appeal below decreed the suit holding in favour of the plaintiffs in respect of the second question without, however, recording any finding with regard to the first presumably on the view that it was not at all necessary. Mr. Mukherjee has submitted that there is a distinction between 'an act of Court' and 'an act of parties' and this distinction has acquired a special significance in connection with suits for damages. He has also contended that in England, the rules of common law govern such suits for damages and three situations governed by different principles under the English law may be considered in this respect: --
a) Injury on account of mere grant of injunction is not actionable unless it is shown to have been obtained maliciously and without probable and sufficient cause. Such suits are really governed by principles relating to malicious prosecution. The reason for liability in such cases is that the party obtaining an injunction had caused an abuse of the process of law and really mislead the Court;
b) Where something has been done under an order of the Court which is found to be void or without any jurisdiction it is held to be actionable as a wrongful act of the party not protected by any judicial order;
c) An act of the party voluntarily undertaken by him and not done under the order of the Court is actionable in the ordinary way. In such a situation, the author of the Act is liable or answerable for the consequences of his own actions and he cannot seek protection on the plea of any act of Court.
Mr. Mukherjee has contended that in the instant case the Court of appeal below has decreed the suit only on the ground that the defendants 1 to 4 are liable for damages for storage of the oil seeds in the plaintiffs' godown. There is no question of any act of Court being involved in connection with this finding. In other words the Court has proceeded on the basis that it was open to the defendants 1 to 4 to remove the goods from the plaintiff's godown, but they did not do it on consideration of their own. Manifestly there was no order requiring the defendants to keep the goods in the plaintiffs godown. It was entirely for the defendants to decide whether or not to keep the goods in the godown of the plaintiffs. The injunction granted by the Court in both the two Misc. cases arising out of the application under Order 21, Rules 100 and 101 of the C.P.C.
had merely the effect of restraining the plaintiffs from removing or dealing with the goods and from obstructing the entry of the defendants into the godown. Mr. Mukherjee has contended that at best it was the privilege or liberty given to the defendants and they were not obliged under any order of the Court to accept it or keep the goods in the godown. The act of the Court is the foundation of the restraint put upon the plaintiffs and has nothing to do with the keeping of the goods in the godown by the defendants or their refusal to remove the goods in the admitted facts of the case. Mr. Mukherjee has also contended that only show of dispute between the defendant 1 on the one hand and the defendants 2 to 4 on the other was with regard to the distinctive identity of the pledgor or pawner. It was alleged in one voice that the pledge was made not by the defendants 2 to 4 but by the partnership firm. The Bank while strongly putting forward this plea deliberately refrained from disclosing that the defendants 2 to 4 were the partners of the firm which was ultimately found by the trial Court. Mr. Mukherji has submitted that it is therefore evident that a mala fide and collusive stand was taken by the defendants. Mr. Mukherji has also submitted that as a pledgee the Bank had the dominion over the goods and the Bank has also claimed to have actual possession as also the right to possess the pledged goods. The Bank, however, did not claim any right in respect of the godown either on its own behalf or on behalf of the defendants 2 to 4. Hence there was neither any act of the Court nor any bona fide basis for any claim under any provision of law for keeping the goods in the godown of the plaintiffs. On the question of giving consent by the plaintiffs to have the order of ad interim injunction absolute in the said Misc. Cases, Mr. Mukherji has contended that several aspects in this matter require consideration. Firstly, before the same Court which granted ad interim injunction it was alleged that the injunction was made absolute not on merits but on an understanding between the learned Advocate of the parties that the hearing of the Misc. cases would be expedited. Secondly, absence of objection or giving of consent was in respect of the injunction restraining the plaintiffs from removing or dealing with the goods and obstructing the entry of the defendants but there was no consent or absence of objection in respect of the keeping of the goods in the godown of the plaintiff. Thirdly, even if it is taken to be a consent in respect of keeping of goods in the godown of the plaintiffs, the obligation of the defendants to pay for such keeping of goods continues and remains unaffected. Mr. Mukherji has submitted the use and occupation of the godown by the defendants of keeping the said goods or interference with the free user of the plaintiffs of the said godown is not an act of the court but an act of the party. Hence, upon settled principles and irrespective of the case of any consent of the owner, the occupier of the godown is liable for damages. Mr. Mukherji has drawn the attention of the Court to the discussion relating to the nature of compensation for use and occupation in Woodfalls Law of Landlord and Tenant, Vol.I, 28th Edn. (1978) at pages 413 and 414. It has been observed that "the action which can in such case be maintained is not to recover rent but damages due on an implied agreement to pay for the use of the landlord's property and arises rather out of a quasi tenancy than from the strict relation of landlord and tenant. The action for use and occupation does not necessarily suppose any demise; it is enough that the defendants used and occupied the premises by the permission of the plaintiffs." Mr. Mukherji has contended that there is also observation to the same effect in FOA's General Law of Landlord and Tenants, 8th Edn., para 618, at page 403. Mr. Mukherji has also submitted that the law in India is also the same and he has referred to the observation appearing at page 66 in A.C. Ghosh's Bengal Tenancy Act, 1943 (3rd Edn.). It has been observed that "Where one person is in occupation of another person's land and enjoys the usufructs thereof but no tenancy relationship subsists between them, the latter person is in equity entitled to get a reasonable amount for such use and occupation". Mr. Mukherji has referred to a decision of this Court made in the case of Lalji v. Barhamdeo reported in (1912) 16 Cal WN 89 wherein it has been held that the owner of the property gets real rent only when a tenancy relationship subsists between the parties and in the absence of such relationship he can claim only compensation or damages. Mr. Mukherji has also referred to the observation appearing in Kameshewara Rao's Law of Damages and Compensation paras 59 and 60 at page 522 (5th Edn.), Vol. 1. It has been observed "a claim for damages for use and occupation only arises when it is shown that the occupation was by permission or sufferance i.e. when immoveable properties have been occupied by a person with express or implied permission of the owner. Referring to the decision of this Court made in the case of Kandarpa Nag, 33 Cal LJ 244 : (AIR 1921 Cal 356(2)), Mr. Mukherji has contended that a consent decree cannot have a greater validity than the compromise itself and the consent decree is as much binding as a decree on contest. Hence, even if it is accepted that the ad interim injunction was made absolute by consent of parties the defendants cannot escape the liability to pay damages for continuance of the storage of the oil seeds in the godown. Mr. Mukherji has also contended that the defendants are liable also on the ground of trespass on the plaintiffs' godown. The action of the defendant is a trespass because it is an unlawful physical interference with the property of the plaintiffs. Mr. Mukherji in this connection has relied on an observation appearing in Salmond's Law on Torts, 18th Edn. (1981) at page 31. It has been observed that trespass was committed by remaining on land or by placing things on land. To refuse or omit to leave the plaintiffs' land or vehicle is as much a trespass as to enter originally without right. Mr. Mukherji has further submitted that an action in trespass and an action for damages for wrongfully obtaining an order of injunction have different legal implications. If a tenant or a licensee after the expiry of the lease or the license continues in possession and protect such possession by taking an order from the court restraining the landlord from interfering with the possession of such person the tenant or licensee, does not cease to be a trespasser nor does the owner or landlord become disentitled to recover damages for such trespass or unlawful use and occupation save and except in a proceeding for malicious prosecution. In such cases of positive acts of user, occupation or interference is referable entirely to the act of parties, and it is not at all necessary to satisfy the conditions of success in a proceeding for malicious prosecution and it is not at all necessary to prove malice in such circumstances. In support of this contention, Mr. Mukherji has referred to a decision of the Kamataka High Court made in the case of Basamma v. Peerappa . It has been held in the said decision that apart from bringing a proceeding under Section 95(1) C.P.C. a person can also institute a suit for damages for the same purpose. In such a suit, the action as founded on what is called an abuse of the process of court in which the plaintiff has to allege and prove that the abuse of process of the court was also malicious, but in an action of trespass, waste or damage, may be under the order of injunction, that is not the position. In an action for trespass the plaintiff is neither required to allege malice nor required to prove malice but is required to prove that he was in occupation of the immoveable property. Mr. Mukherji has submitted that the plaintiffs in para 14 of the plaint were claiming damages for obtaining order of injunction wrongfully and such case of obtaining order of injunction wrongfully has been decided on the basis of the records of judicial proceedings. He has submitted that in the facts of the case, elaborate pleadings and wrongful acts of the defendants for obtaining the orders of injunction were not essential. Mr. Mukherji in this connection has referred to an observation on Salmond's Law of Torts, 18th Edn., page 334 to the effect that "malice means presence of some improper and wrongful motive -- that is to say, an intent to use the legal process in question for some other than its legally appointed and appropriate purpose". He has also referred to another observation appearing in Salmond's Law of Tort (18th Edn.) at page 394 which runs to the following effect : --
" 'Malice' and 'essence of reasonable and probable cause' must unite in order to produce liability. So long as legal process is honestly used for its proper purpose, mere negligence or want of sound judgment in the use of it creates no liability; and conversely if there are reasonable grounds for the proceedings (for example, the probable guilt of an accused person), no impropriety of motive on the part of the person instituting these proceedings is in itself any ground of liability. Therefore, it is necessary to distinguish between honesty of belief and honesty of motive; the former is relevant to the question of reasonable and probable cause, the latter to the question of malice"
Referring to the application under Order 21, Rule 101 of the C.P.C. made by the defendant Bank (Ext. 4), Mr. Mukherji has contended that the Bank prayed for being put back into possession of the godown in question along with pledged goods on the allegation that the Bank was pledgee of the goods of M/s. Banshidhar Baijnath and in its capacity as a pledgee, the Bank has physical control of the goods and the godown. The Bank did not disclose the names of the partners of Messrs Banshidhar Baijnath. The transaction between the Bank and the said firm was made in 1968(?) and the decree for eviction and recovery of possession of the godown was passed in 1963 and the execution of the decree was also initiated in 1963. Mr. Mukherji has contended that the Bank's claim of an independent title on the basis of a transaction with the firm, the partners of which are admittedly bound by the decree passed long before the transaction cannot be a bona fide claim. He has also submitted that the Bank was claiming to be a pledgee of the oil seeds stored in the godown. The Bank cannot have any right or title in respect of the godown. In the aforesaid circumstances, the prayer for restoration of possession made by the Bank in the said application under Order 21, Rules 100 and 101 of the C.P.C is wholly unjust and wrongful. Mr. Mukherji has submitted that the Bank and the defendants 2 to 4 were quite free to remove the said goods from the godown if they had really intended to do the same and even in spite of obtaining an order enabling the Bank to remove the said goods on certain condition, the Bank did not intend to do so on the ground that the condition attached to the order would not be complied with. The Bank did not ask for any modification of the said order. Mr. Mukherji has also submitted that the custodian of the said goods, Sitaram Roy also made an application for removal of the goods but such application was opposed by the Bank on the ground that the petitioner having taken the responsibility voluntarily he could not be allowed to resile from that responsibility. The defendants 2 to 4 also resisted the said application of Sitaram Roy on the ground that one Krishna Debriwal had instituted a suit restraining the decree-holders from executing the decree and proceeding further with the said Misc. Cases Nos. 1 and 3 of 1973. Mr. Mukherji has submitted that Section 95 of the C.P.C. is a special provision having no corresponding principle in the body of common law in England. Admittedly in a proceeding, under Section 95, nothing apart from the requirements of that Section is required to be proved. Mr. Mukherji has submitted that Section 95(2) permits a suit in respect of "such injunction" as is referred to in Section 95(1). He has contended that the principles of English common law governing malicious prosecution . cannot affect the operation of a suit expressly referred to and approved by Section 95(2) of the C.P.C. if the same is otherwise valid under Section 9 of the C.P.C. Mr. Mukherji has also contended that there is a distinction between asking for penalty on account of an injunction wrongfully obtained and a prayer for damages on account of loss unjustly caused. Where damage is the gist of the action, neither Section 95 nor the ingredients of an action for malicious prosecution stand in the way. 'Damage' with all its legal implications pleaded and proved should govern the fate of such a suit. Mr. Mukherji has also submitted that the plea of the defendants 2 to 4 that the defendants 2 to 4 in their individual capacity are different from the partnership firm consisting of the said persons is wholly unsound. He has contended that although a firm in mercantile usage has a personality of its own, strictly in the eye of law it is not a legal entity like a natural person. Therefore, the rights and obligations of a firm are merely the rights and obligations of the individual partners of the firm. In support of this contention, Mr. Mukherji has referred to a decision of this Court made in the case of Taraknath v. Union of India and also a decision of the Supreme Court made in the case of Income-tax Commr. Madras v. R. M. C. Pillai .
10. After considering the respective contentions of the learned counsels for the parties, it appears to me that the defendant 1 Bank of India was only a pledgee of the goods, namely, the oil seeds stored in the godown in question and the said oil seeds belonged to the firm Banshidhar Baijnath of which the defendants 2, 3 and 4 are the partners. Being the pledgee of the said goods, the defendant Bank possessed the said goods and as such was in actual physical possession of the godown at the time of execution of the decree passed in Title Suit No. 77 of 1959. Excepting a claim on the said oil seeds as a pledgee, the defendant Bank had no other right in respect of the said godown and the said Bank had also not claimed any right of tenancy or licensee in respect of the said godown. In the instant case, the said firm Banshidhar Baijnath and/or its partners, namely, the defendants 2 to 4 failed to establish any right title or interest in the said godown and as such it must be held that the said defendants had no right, title or interest to possess the said godown either actually or constructively by keeping their goods therein. In Title Suit No. 77 of 1959, M/s. Bhagat Oil Mills was impleaded as defendant 3 on the ground that the said M/s. Bhagat Oil Mills was a sub-lessee in respect of the disputed premises. Sri Baijnath Bhagat appeared in the said suit as Proprietor of M/s. Bhagat Oil Mills and during the pendency of the said suit, Sri Baijnath Bhagat having died, the defendants 2 to 4 were substituted in the place of the said Baijnath Bhagat. The decree for recovery of possession of the disputed premises including the said godown was passed in the said Title Suit No. 77 of 1959. In the aforesaid circumstances, the defendants Nos. 2 to 4 were bound by the decree for eviction in execution of which the recovery of possession was delivered to the plaintiffs respondents by the bailiff of the court. In the facts of the case, M/s. Banshidhar Baijnath being represented by defendants 2 to 4 as partners cannot contend that although the partners in their individual capacity are bound by the decree for eviction, the said firm can resist eviction and set up an independent title. No such independent title has been found in favour of the said M/s. Banshidhar Baijnath and/or its partners, namely, the defendants 2 to 4 in respect of the said godown by the Courts below. It also appears to me that apart from Section 95 of the C.P.C, the plaintiffs are entitled to bring an action for recovery of damages for wrongful use and occupation of the godown in question by the defendants 1 to 4. Section 95 of the C.P.C. is a specific provision and it is not obligatory on the part of the plaintiffs to seek remedy only in accordance with Section 95(1) of the C.P.C. If a case falls squarely within the scope and ambit of Section 95(1) of the C.P.C., an aggrieved party may claim damages in accordance with the provisions of Section 95(1) of the C.P.C. by presenting an application to that effect before the competent court and in such proceeding under Section 95(1) of the C.P.C. the court cannot but confine its adjudication within the four corners of the said provision and the extent of damages is also limited by the provisions of the said section. But an aggrieved party cannot be made bound to bring an action only under the provisions of Section 95(1) of the C.P.C. for damages but he may institute independent suit for damages for unlawful use and occupation of an immoveable property if the concerned party can establish such unlawful action of another resulting loss and damages. The scope and ambit of such suit for damages are necessarily wider than the limited scope envisaged by Section 95(1) of the C.P.C. In the instant case, at the time of execution of the decree for recovery of possession of the godown in question, large quantity of oil seeds were found to be stored in the said godown. The defendants 2 to 4 were owners of the said oil seeds and the defendant 1 Bank of India was only a pledgee in respect of the said oil seeds. The decree-holder plaintiffs have no claim whatsoever over the said oil seeds and at no point of tune the plaintiffs had made any claim in respect of the said oil seeds and the plaintiffs also did not stand in the way of removing the said oil seeds from the said godown. It is the defendants who made an application under Order 21, Rules 100 and 101 of the C.P.C. before the executing court restraining the plaintiffs from removing the oil seeds and in Misc. Case No. 1 of 1972 arising out of an application under Order 21, Rules 100 and 101 of the C.P.C. made by the defendant 1 Bank, an ad interim injunction was granted by the executing court restraining the plaintiffs from removing the oil seeds and permission of access to the said oil seeds stored in the said godown under the custody of the said Sitaram Roy was also given by the Court. The defendants 2 to 4 also made an independent application under Order 21, Rules 100 and 101 of the C.P.C. and also obtained an ad interim injunction restraining the plaintiffs from removing and/or disposing of the oil seeds stored in the said godown. It is, therefore, quite apparent that by virtue of the said interim orders obtained both by the defendant 1 and the defendants 2 to 4, the plaintiffs and also the custodian of the said goods viz. Sitaram Roy could not remove the said oil seeds from the said godown. The said ad interim orders of injunction passed in both the said Misc. Cases were made absolute in the presence of all the parties and it appears that such order of making the ad interim orders absolute was passed on consent of the parties. It has been strenuously argued on behalf of the appellants in both the said appeals that the plaintiffs having consented to the continuance of the interim order of injunction are estopped from contending that they had suffered any damages for keeping the said oil seeds in the said godown and/or for wrongful possession of the said godown by keeping the said oil seeds by the defendants. Although the plaintiffs haw contended that the said consent order was passed only on the understanding that the Misc. cases would be disposed of soon on merits, the fact remains that the interim orders were made absolute by consent of all the parties. In my view, however, such consent in allowing the ad interim orders of injunction to be continued till the disposal of the Misc. cases cannot take away the liability of the defendants to pay damages for use and occupation of the said godown in question by keeping the oil seeds stored therein. A party against whom an order of injunction had been passed may choose not to contest the order of injunction and even agree to suffer the interim order but may claim compensation on account of loss suffered by such party on account of interim order obtained by the other party. That apart, the defendants 1 to 4 had no restriction whatsoever to remove the said oB seeds in respect of which no claim had ever been made by the plaintiffs at any point of time. It has been sought to be contended on behalf of defendants-appellants that the plaintiffs were in possession of the godown after such possession of the godown was delivered by the bailiff to the plaintiffs in execution of the decree for eviction passed in Title Suit No. 77 of 1959. It has also been contended by the appellants that the oil seeds were also not in the custody of the defendants but the same were kept in the custody of one Sitaram Roy, an employee of the plaintiff. Hence, it cannot be contended that the defendants were in occupation of the said godown in any manner whatsoever. I am, however, unable to accept the said contentions of the defendants-appellants: In the facts oi the case, the plaintiffs obtained possession of the godown in execution of the said decree not in a vacant condition but with the oil seeds stored therein and the bailiff only made the employee of the plaintiffs decree-holders a custodian of the said goods. By restraining the plaintiff decree-holders and the said custodian from removing the said oil seeds and by not removing the said oil seeds on their own by the defendants, the defendants did not allow the plaintiffs the user of the said godown in a vacant position. As a result the plaintiffs have not been able to utilise the said godown effectively in a gainful manner. In the facts of the case, the defendants by keeping the said goods in the said godown and by preventing the plaintiffs from removing the same have in effect exercised possession of the said godown. In the facts and circumstances of the case, it appears to me that the claim of the plaintiffs for damages on account of storage of the said oil seeds in the said godown against the defendants can be decided without considering the case of malice of the defendants in obtaining the said orders of injunction. Hence, the question of specific pleading of malice and/or establishment of the same by cogent evidences by the plaintiffs, may not be germane for disposing of the suit for damages claimed by the plaintiffs if the plaintiffs can establish that the defendants had no lawful right to use and occupy the said godown and store the oil seeds therein and for such storage of the oil seeds, the plaintiffs have suffered pecuniary loss and damages. In the facts and circumstances of the case, the positive act of user and occupation of the defendants of the godown in question by keeping the said oil seeds stored therein and preventing the plaintiffs from removing the same or the interference made by the defendants with the free user of the said godown by the plaintiffs are referable only to the act of the parties and it is not necessary to satisfy the conditions for success in a proceeding for malicious prosecution. I respectfully agree with the decision of the Kamataka High Court in Basamma's case . Mr. Justice, Putlaswamy has highlighted in the said decision that in an action of trespass, the plaintiff is neither required to allege malice nor prove the same and he is only required to allege and prove that he was in possession of the immoveable property and the defendant has disturbed his possession. The decisions reported in AIR 1944 Cai 289 and AIR 1929 PC 222 have been referred to and distinguished by Mr. Justice, Puttaswamy and 1 respectfully agree with the view taken by him. In the aforesaid circumstances, both the appeals must fail and are dismissed, but I make no order as to costs.
11. Learned Counsel for the appellants in both the appeals prays for stay of operation of this judgment. Such prayer is opposed by the learned Counsel for the respondents in both the appeals. However, we allow the prayer and grant stay of operation of this judgment for a period of three weeks from this date.
Ghosh, J.
I agree.