Calcutta High Court (Appellete Side)
Sri Sanjoy Sinha & Anr vs Rajendra Kumar Surana & Ors on 10 March, 2021
10.03.2021
SL No.26
Court No.12
(gc)
FMAT 402 of 2020
With
CAN 1 of 2020
Sri Sanjoy Sinha & Anr.
Vs.
Rajendra Kumar Surana & Ors.
(Via Video Conference)
Mr. Purbangshu Chandra Mitra,
Mr. Sudhir Kumar Sadhukhan,
Mrs. Piyali Mitra,
...for the Appellant.
Mr. Souradipta Banerjee,
Mr. Subhojit Mullick,
Ms. Madhurima Chakrabarti,
...for the Respondent No.1.
No revised report has been filed by the Stamp Reporter presumably as the file was not been placed before the Stamp Reporter. However, in view of the order of the Hon'ble Supreme Court on 23rd March, 2020 as recorded in our earlier order dated 8th March, 2021, the appeal is held to be within time. The Stamp Reporter shall accordingly prepare a revised report for the purpose of record.
By consent of the parties, the appeal and the application are taken up together and disposed of by this common order.
The appellants are admittedly 50% owners of the suit property. The proforma respondent Nos.2 and 3 are holding balance 50% shares in the property by virtue of sale of 50% shares in their favour by other original co-owners of the property. The respondent Nos.2 and 3 are relations of the 2 respondent No.1. The respondent No.1 appears to be a tenant in respect of a portion of the suit premises which fact is undeniable for the present purpose having regard to Exhibit-4, namely, the letter of attornment dated 25th September, 2008. The respondent No.1 filed a suit in the year 2011 claiming declaration of tenancy rights and injunction. The allegations are that although the respondent No.1 is the tenant under the present appellants and the proforma respondent Nos.2 and 3 but the present appellants are trying to disturb the lawful possession and occupation of the tenanted portion of the respondent No.1. In the suit filed by the respondent No.1 in the year 2011, an application was filed for ad-interim order of injunction restraining the present appellants from interfering with the possession of the respondent No.1. The ad-interim order of injunction in the form of status quo with regard to the possession of the suit property was passed on 29th January, 2011 till 1st March, 2011. The respondent No.1 alleged that he has been forcibly dispossessed by the present appellants on 23rd February, 2011.
It appears from the impugned order that the possession of the appellants was, prima facie, proved in view of Exhibit-4 and other documents produced at the hearing of the application under Order 39 Rule 2A of the Code of Civil Procedure and it was held that the present appellants in violation of the order of status quo took possession of the alleged tenanted premises belonging to the respondent No.1 3 and thereby allowed the application and sentenced each of the appellants to pay fine of Rs.25,000/- to be deposited to the learned Registrar, City Civil Court, Calcutta within a period of four weeks from date.
The learned Counsel for the appellants has questioned the jurisdiction of the Civil Judge in awarding fine of Rs.25,000/- and draws our attention to the provisions of Order 39 Rule 2A of the CPC to show that the Court has no jurisdiction to impose any fine. The finding of the learned Trial Judge is also assailed before us by showing certain discrepancy in the evidence of the respondent No.1 as to the alleged date of dispossession. Having regard to the fact that the plaintiff and the defendants jointly owned the property in question and Exhibit-4 is a clear pointer to a semblance of a possessory right if not tenancy in favour of the respondent No.1, the finding of the learned Trial Judge, in our view, as to violation of the order of status quo is well- founded. Moreover, the Trial Judge has the benefit of seeing the demeanor of the appellants during cross-examination. The Trial Judge opined that the appellant No.1 was cunningly and shrewdly avoiding the relevant questions by giving evasive answer.
Taking into consideration the aforesaid facts and prima facie proof of possessory right of the respondent No.1 being established, we feel that the Trial Judge was justified in holding the appellants guilty of disobedience and breach of injunction. Since we could not find any tangible asset 4 which could be attached as by way of a punishment under Order 39 Rule 2A of the Code of Civil Procedure and on an undertaking that the tenanted portion mentioned in the schedule to the plaint would be handed over to the plaintiff, namely, the respondent No.1 in this proceeding within seven days from date, we modify the sentence by awarding fine of Rs.5000/- each to be deposited with Member Secretary of SLSA within seven days from date along with restoration of possession. The restoration of possession shall be without prejudice to the rights and contentions of the present appellants in the suit denying the tenancy right of the respondent No.1.
The interim order passed by the learned Trial Judge in the form of status quo shall continue till the disposal of the suit. It appears that on 29th June, 2017 a direction was passed by a learned Single Judge requesting the learned Judge, 2nd Bench, City Civil Court, Calcutta to take up Title Suit No.171 of 2011 as expeditiously as the business of Court would permit and dispose of the same without undue delay and without granting adjournment to the parties.
We have been informed that it is at the argument stage and two applications have been filed by the appellants during the course of argument. In view of the earlier order, we request the learned Judge, 2nd Bench, City Civil Court, Calcutta to dispose of the suit along with the applications, if any, preferably within a period of six months from date. 5
With the aforesaid observation, the appeal being FMAT 402 of 2020 and the application for stay being CAN 1 of 2020 stand disposed of.
Urgent Photostat certified copy of this order, if applied for, be given to the parties on usual undertaking.
(Subhasis Dasgupta, J.) (Soumen Sen, J.)