Gauhati High Court
Urban World Motors Pvt. Ltd. & 3 Ors vs Ghosh Brothers Car Pvt. Ltd & 5 Ors on 20 September, 2017
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM &
ARUNACHAL PRADESH)
CRP(I/O) 272 of 2017
URBAN WORLD MOTORS PVT. LTD. & 3 ORS. .....Petitioners
-Versus-
GHOSH BROTHERS CAR PVT. LTD. & 5 ORS. .....Respondents
BEFORE HON'BLE MR. JUSTICE KALYAN RAI SURANA Advocates for the Petitioners : Mr. J. Sharma, Mr. G. Kakati, : Mr. P. Thakuria, Mr. H.J. Rai.
Advocates for the Respondents : Mr. D. Baruah, Ms. U. Upadhyay, : Mr. N.B.P. Singha.
Date of hearing : 16.09.2017.
Date of judgment and order : 20.09.2017.
JUDGMENT AND ORDER (CAV)
Heard Mr. J. Sharma, the learned Counsel for the petitioners and Mr. D. Baruah, the learned counsel for the respondent No.1.
2) By order dated 16.09.2017, while the learned counsels for the petitioners and the respondent No.1/ caveator were heard on length on the prayer for interim relief, which was strongly opposed by the learned counsel for the respondent No.1, this court had reserved its orders and for the time being dispensed with the issuance of notice to the remaining respondents No.2 to 5.
3) At the outset, it must be narrated that when the matter was listed in the motion column, by order dated 14.09.2017, as documents on which the petitioners had relied were not on record, an opportunity was granted to the CRP (I/O) 272/2017 Page 1 of 25 learned counsels for the petitioners to file any documents forming part of the record. Accordingly, in the form of additional affidavit filed on 15.09.2017, some documents have been brought on record by the petitioners. When the matter was last listed on 16.09.2017, the learned counsel for the respondent No.1 prayed for and was allowed to produce some more documents, some of which according to him were not produced.
4) The Respondent No.1 i.e. Ghosh Brothers Car Pvt. Ltd., had filed a suit, which was numbered as T.S. No. 347/2016, and is pending for disposal before the Court of the learned Civil Judge No.1, Kamrup (Metropolitan), Guwahati. The suit is for declaration, specific performance of agreement, for permanent injunction and alternatively for recovery of money. The original defendants in the said suit are - (1) Smt. Anjana Brahma (Respondent No.2), (2) Smt. Archana Dewriary (Respondent No.3), (3) Sri Dipankar Brahma (Respondent No.4), (4) Smt. Kalpana Brahma (Respondent No.5), (5) Smt. Sweta Jalan (Respondent No.6). In course of proceedings, the following defendants were impleaded by orders dated 10.03.2017 and 11.05.2017 - (6) Urban World Motors Pvt. Ltd. (petitioner No.1), (7) Musstt. Rumena Rahman (Petitioner No.2), (8) Mr. Atikur Rahman (Petitioner No.3), (9) Musstt. Sabina Pariat (Petitioner No.4).
5) The relevant sequence of events are as follows:-
a. 03.03.2011 - Agreement for Lease bearing Registered Deed No. 3777
dated 03.03.2011 executed by the respondents No.2 to 4 as lessors with Respondent No.1. By the said agreement, the Respondent No.1/ Lessee had paid to the respondents No.2 to 4 a sum of Rs.22,29,000/- and agreed to lease out the plot of land described in Schedule-A thereto. The lessors i.e. respondents No.2 to 5 had undertaken to construct a Shed/ Assam Type house thereon with built-up area of about 20,000 square feet as per the layout of the lessee/respondent No.1 and the construction was to come up at the cost of the lessee/respondent No.1. The cost of construction was recoverable by CRP (I/O) 272/2017 Page 2 of 25 the lessee by deducting a fixed amount as agreed thereunder. The estimated cost of construction was estimated at Rs.1,60,00,000/-. Monthly rent was payable from within 7 days from the date of handing over possession to the lessee/respondent No.1. The agreement contained various terms and conditions including the provisions for enhancement of monthly rent from time to time.
b. As per the plaint of TS 347/16, the proposed construction was on verge of completion and as possession of the suit premises was not handed over to the lessee/respondent No.1, it was claimed that the occasion to pay monthly rent never arose. The respondent No.1 claimed to have paid a sum of Rs.1,53,73,925/- to the contractors of the lessors/respondents No.2 to 5 and had incurred an expenditure to the tune of more than Rs.1,83,57,925/-.
c. The respondent No.1 received an advocate's notice on 15.06.2016, claiming therein that as monthly rent since execution of agreement was never paid, they were taking steps to institute proceedings for eviction and for recovery of arrear rent. The respondent No.1 projected that they came to know on 19.08.2016 that the respondents No.2 to 5 were taking steps for alienating the suit property and on 20.08.2016, one of the Directors of the respondent No.1 enquired with the respondents No.2 to 5 with the request for handing over the suit premises and on refusal, the suit was instituted on 23.08.2016. d. Along with the suit, a separate application was filed for ad-interim injunction under order XXXIX Rules 1 and 2 read with section 151 CPC, which was registered as Misc. (J) Case No. 536/16. The learned trial court, by an ex-parte order dated 23.08.2016 directed the respondents No.2 to 5 from transferring/ alienating and allowing the use of the suit premises till the next date i.e. 09.09.2016. The said order was extended from time to time. The said petition was contested by respondents No.2 to 5. As per the statements made in CRP (I/O) 272/2017 Page 3 of 25 the written objection filed on 06.10.2016, in paragraph 7 it is stated that the structural works are yet to be completed in the suit premises. e. On 11.11.2016, the respondent No.1 filed another injunction application under Order XXXIX Rules 1 and 2 read with section 151 CPC, which was numbered as Misc. (J) Case No. 739/2016, inter-alia, stating therein that during the court holidays between 08.10.2016 till 30.10.2016, the respondents No.2 to 5 were not only carrying out constructions on the suit premises, but had put up hoardings of opening a car showroom very shortly. It was claimed that original structures which were carried out at the cost of the respondent No.1 was being demolished to destroy the subject matter of the suit property and it was also claimed that the suit property was let out to the respondent No.6 herein.
f. The respondent No.6 herein contested the case by filing written objection on 22.11.2016. It was disclosed therein that the suit premises was sub-let to M/s. Urban World Motors Pvt. Ltd. by Sub- Let Agreement dated 01.09.2016 for the purpose of opening a car showroom and the showroom had become functional and cars have already arrived and sale and booking are underway.
g. On the said Misc. (J) Case No. 739/2016, the learned trial court by order dated 29.11.2016, disposed of the said case by directing that the status-quo should be maintained in respect of the suit property till the disposal of the suit, further directing that no showroom/ business establishment, etc. shall be opened formally by anybody in the suit premises till disposal of the suit. In the said order, the learned trial court had recorded that the lease agreement was submitted for registration on 15.07.2016. Thereafter, permission for lease was applied before the Court of Deputy Commissioner, Kamrup (M), Guwahati on 10.08.2016 and permission was accorded on 30.08.2016 and the subsequent lease agreement between the respondents No.2 to 5 as lessors and respondent No.6 as lessee was registered on CRP (I/O) 272/2017 Page 4 of 25 30.08.2016. It was also recorded therein that by Sub-Let Agreement dated 01.09.2016, the suit premises was sub-let to the petitioner No.1 herein.
h. The learned counsel for the Respondent No.1 published a public notice in The Assam Tribune on 08.12.2016, informing the public about the order dated 29.11.2016, further informing that violation of the said injunction order would amount to willful disobedience of the orders dated 23.08.2016 and 29.11.2016, which shall be liable for punishment as per law.
i. By notice dated 19.01.2017, Advocate's notice was issued to the car manufacturer, its Directors, and the petitioners informing them that in spite of order dated 29.11.2016, they had opened a showroom under the name and style of "Guwahati Metropolitan", which is in breach of orders dated 23.08.2016 and 29.11.2016, for which they will be liable for punishment for contempt and disobedience and the noticees were asked to cease and desist to run the car showroom from the suit premises.
j. In response, the petitioners through their Advocate's reply dated 25.01.2017, informed the respondent No.1 that the respondent No.1 was aware of the that they had come into possession of the suit premises through a lawful agreement since 01.09.2016 and had incurred huge expenditures in constructing the showroom and had started the business. It was stated that the petitioners were intentionally not made parties to the suit with intention to get order of injunction from the court. It was also specifically stated that "neither my clients had any notice of order dated 29.11.2016 and nor they have opened the showroom on the suit premises in the name of Guwahati Metropolitan." It was also claimed that by opening of car showroom, the petitioners had not violated the court's order and they were running the business on the basis of lawful agreement and, as CRP (I/O) 272/2017 Page 5 of 25 such, the question of cease and desist of business by the petitioners does not arise.
k. In the interregnum, two petitions come to be filed by the respondent No.1 before the learned Trial Court, first being petition No. 887/17 under Order VI Rule 17 CPC and the second being petition No. 889/17 under Order 1 Rule 10(2) CPC.
l. On 10.03.2017, two events take place. By order dated 10.03.2017, inter-alia, impleading of petitioners as defendants No. 6 to 10 was allowed. The respondent No.1 also filed a separate application under Section 151 CPC for providing police help for implementation/ enforcement of order dated 23.08.2016 in Misc. (J) Case No. 536/16 and order dated 29.11.2016 in Misc. (J) Case No. 739/2016. The said petition was registered as Petition No. 1370 dated 10.03.2017. The cause title of the petition was Ghosh Brothers Car Pvt. Ltd. Petitioners Vs. Smt. Anjana Brahma & 4 others. Opp. Parties.
m. On 11.05.2017, the petition No. 889 under Order 1 Rule 10(2) appears to be again allowed. The amendment of plaint vide petition No. 887 under Order VI Rule 17 CPC was allowed by order dated 22.05.2017. n. On 30.05.2017, in Misc. (J) Case No. 536/16, in respect of petition No. 1370/17, the learned trial court ordered issuance of notice to the defendants who were newly impleaded by order dated 11.05.2017. o. In the suit, on 09.06.2017, the respondent No.1 prayed for time to file amendment plaint. On 14.06.2017, the amendment plaint was filed. By order dated 28.06.2017 petition under Order VII Rule 14(3) CPC filed on 14.06.2017 was allowed. Court recorded that steps on newly impleaded defendants were not issued, as such, notices were ordered to be re-issued, fixing 09.08.2017 for filing objection and service report. In Misc. (J) Case No. 536/16, the learned trial court directed the respondent No.1 to take steps against the newly impleaded defendants, fixing 20.07.2017 for service report.
CRP (I/O) 272/2017 Page 6 of 25p. On 20.07.2017, the learned trial court has recorded in the order-sheet of Misc. (J) Case No. 536/16 that summons has been returned with process server's report and the newly impleaded defendants No. 6 to 9 are absent without steps for which the case was fixed for orders on the pending petition.
q. In the set of documents produced by the learned counsel for the respondent No.1, is a copy of order dated 09.08.2017, passed in TS 347/16 (at pg.117-118), by which the learned trial court granted time till 14.09.2017 to the petitioners herein to file written statement and for additional written statement by others. At page 123 is another order passed in common in TS 347/16 and Misc. (J) Case No. 536/16, as per which time was granted to file objection against petition No. 1370/17, fixing the case on 17.08.2017 for objection/ hearing/ order. Later on, it is recorded in the order sheet that case is fixed for passing order on 17.08.2017, further directing the defendants to file objection, etc. in the meantime.
r. BY order dated 17.08.2017 passed in Misc. (J) Case No. 536/16, the learned Trial Court directed the concerned officer of the police station to enforce the order dated 29.11.2016, fixing 14.09.2017 for passing further orders.
s. A copy of notice dated 01.09.2017 has been produced by the learned counsel for the petitioners, stated to be issued by the learned trial court to the police in connection with Misc. (J) Case No. 536/16 (in TS 347/16), directing the police to close down the showroom in the name and style of Guwahati Metropolitan over suit property.
6) There is yet another litigation on the suit property. The petitioners had filed TS 3/2017, which is pending before the Court of Civil Judge No.3, Kamrup (M), Guwahati. The said suit was filed by the petitioner No.1 herein against the respondents No.2 to 6 and one Smt. Kalyani Brahma, seeking relief of declaration and permanent injunction. In paragraph 8 thereof, reference was made to CRP (I/O) 272/2017 Page 7 of 25 receipt of caveat in respect of order dated 29.11.2016 passed in Misc. (J) Case No. 739/16 (in TS 347/16). The learned Court of Civil Judge No.3 Kamrup (M), Guwahati, by order dated 15.02.2017 had granted ad-interim injunction and the same was made absolute by order dated 09.08.2017, thereby restraining the opposite parties therein from interfering with the running of business from the suit premises.
7) The learned counsel for the petitioners submits that the orders passed behind their back were sought to be enforced by the learned trial court in the proceedings of TS 347/16. It is submitted that although the learned trial court took cognizance of the fact in its order dated 29.11.2016 that the Petitioner No.1 i.e. Urban World Motors Pvt. Ltd. has made substantial investments and its car showroom had become operational, while passing the said order, it did not deem it fit to put the petitioners to notice of the said case. It is submitted that they had no notice of the suit. The defendants No. 5 is found to have disclosed in written objection filed on 06.10.2016 in Misc. (J) Case No. 536/16 that the suit property was leased to them on 15.07.2016 and sub-letting was permissible under the lease deed, the suit property was sublet to petitioners. It is submitted that the lease deed between the respondents No.2 to 5 and respondent No.6 was presented for registration on 15.07.2017, but as it was informed that permission from the Deputy Commissioner was required before registration of lease, the parties applied for permission, which was obtained and the deed was formally registered on 31.08.2017. The suit premises was then lawfully sublet to the petitioners on 01.10.2016.
8) It is submitted that as per the provisions of Section 23 of the Registration Act, 1908, a document may be presented for registration within four months of its execution. As per the provisions of section 47 of the Registration Act, 1908, a registered document shall take effect on and from the date of its execution.
CRP (I/O) 272/2017 Page 8 of 259) It is submitted that it is a matter of the record of the learned trial court as on 29.11.2016 that the petitioners are running the establishment at the suit premises. Moreover, it is submitted that the order dated 23.08.2016 in Misc. (J) Case No. 536/16 was not to alienate/ transfer/ use the suit premises. It was an ex-parte order, but yet before it i.e. on 15.07.2017, the said suit premises was leased out to the respondent No.6. Therefore, if any one has violated the orders dated 23.08.2016 and 29.11.2016, passed by the learned trial Court, they are defendants No.2 to 5, of which the petitioners had no notice and, as such, for the violation committed by the respondents No.2 to 5, the petitioners cannot be punished by harsh step of closing down their showroom. It is submitted that if the petitioners ultimately succeed in the suit, the petitioners would be bound by the decree, but at this stage, when even as per order dated 29.11.2016, passed by the learned trial court, the showroom of the petitioners existed i.e. from prior to the date of their being impleaded in the suit, their business cannot be closed down. It is submitted that not only a huge financial investment has been made in constructing the showroom in the suit premises, but they have also invested a huge amount of money in securing the agency for car manufacturer. Therefore, if the showroom is closed, they would not only loose the dealership, but their huge investment will be washed away.
10) It is submitted that the order dated 29.11.2016 was not to operate the showroom, which by notice to police cannot be converted to closing down of showroom, when it is a matter of record that the show room of the petitioners was operational as contained in the order dated 29.11.2016.
11) It is submitted that the petitioners were served only with the copy of amended plaint and notice of Misc. (J) Case No. 536/16, in respect of petition No. 1370/17. Therefore, merely because the counsel for the petitioners had entered appearance in the suit, it cannot be presumed that the petitioners were having notice of the other proceedings or of orders passed prior to their impleadment as defendants No. 6 to 9 in the suit. It is also submitted that the CRP (I/O) 272/2017 Page 9 of 25 suit itself was not maintainable as the suit for specific performance of contract dated 03.03.2011 was filed in the year 2016, which is ex-facie barred by limitation.
12) It is submitted that ordinarily appeal would be maintainable, but in this case, the order dated 29.11.2016 to not to open the showroom/ business establishment has been converted to be a notice to the police to close the showroom is a case of over-reach of powers and jurisdiction by the learned trial court. It ahs exercised jurisdiction not vested in it by law. The impugned orders were adversely passed against the petitioners without notice and behind their back. As on 29.11.2016, the learned trial court was aware that the showroom of the petitioners was functional and, as such, it could not have passed order not to use the premises to notice to police to close the showroom. Moreover, orders for enforcement was passed in an application under Section 151 CPC, against which no appeal is provided for. Therefore, as composite challenge has been made, and there being no alternative or efficacious remedy, this application under Article 227 of the Constitution of India was maintainable.
13) In support of his argument, the learned counsel for the petitioners has relied on the case of -
a. Maria Margarida Sequeira Fernandes & Ors. Vs. Erasno Jack De Sequeira (Dead) through LRs., (2012) 5 SCC 370 - on due process, injunction and unscrupulous practice in courts (para 70, 78 to 86).
14) Per contra, the learned counsel for the respondent No.1 has objected to the maintainability of the revision under Article 227 of the Constitution of India. It is submitted that the order dated 23.08.2016 was passed in Misc. (J) Case No. 536/16, and order dated 29.11.2016 was passed in Misc. (J) Case No. 739/16. Both were applications under Order XXXIX Rule 1 and 2 read with section 151 CPC. The said orders have attained finality as no appeal has been preferred against the same. It is stated that orders passed under Order XXXIX CRP (I/O) 272/2017 Page 10 of 25 Rules 1 and 2 can only be assailed by filing appeal under the provisions of Order XLIII Rule 1(r) CPC. Thus, in the absence of any challenge to the said orders passed under Order XXXIX Rules 1 and 2 CPC, the order of enforcement of the said orders, which was passed on 17.08.2017 in connection with Misc. (J) Case No. 739/16 cannot be successfully challenged in an application under Article 227 of the Constitution of India.
15) It is submitted that the sub-lease was created on 01.09.2016 to frustrate the various orders passed by the learned trial court. It is submitted that the sub-lease was for 9 years, which is required to be compulsorily registered. Therefore, cognizance of sub-letting agreement dated 01.09.2016 cannot be taken as there is a bar created under Section 49 of the Registration Act, 1908. It is also submitted that the lease in favour of the respondent No.6 was registered on 31.08.2016 and sub-lease was created on 01.10.2016, and, as such, not only the transactions were doubtful, but the showroom could not have come up without the huge investment made by the respondent No.1, which was to the extent of Rs.1,83,57,925/- as on the date of filing of the suit.
16) It is submitted that as per clauses contained in the registered Lease Deed dated 03.03.2011, the Respondent No.1 had paid an advance of Rs.22,29,000/-. The cost of construction amounting to Rs.1,83,57,925/- was borne by the Respondent No.1, and this is not without notice to the respondents No.2 to 5 because in clause 7 of the said agreement, it was envisaged way back on 03.03.2011 that cost would be around Rs.1.60 Crore. The rent would fall due as per clause 11 thereof only from the date of handing over physical possession of the suit premises to the respondent No.1.
17) It is submitted that on 23.08.2016, there was a lawful order not to alienate and not to use the property, but the said order was sought to be circumvented by registering lease on 31.08.2016.
CRP (I/O) 272/2017 Page 11 of 2518) The learned counsel for the respondent No.1 has presented the following chronology of events -
a. 23.08.2016, order passed in Misc. (J) Case No. 536/16. b. 09.09.2016, the next date, when no information about lease or sub-
lease given to the learned Court by Respondents No.2 to 5. c. 06.10.2016, disclosure of lease dated 15.07.2016 given. The existence of Respondent No.6 is made known. It was the last date of court before Puja Vacation.
d. 30.10.2016, Court reopens after Puja Vacations.
e. 11.11.2016 - Next date of case. No disclosure of transfer by sub-lease.
Application under Order VI Rule 17 CPC and Order I Rule 10(2) filed. Also, a fresh petition for ad-interim injunction filed, which is registered as Misc. (J) Case No. 739/16.
f. 19.11.2016 - petitioners pray for time.
g. 22.11.2016 - petition heard in part, Court informed about sub-lease to petitioners.
h. 23.11.2016 - Case again heard in part.
i. 25.11.2016 - Case again heard in part.
j. 29.11.2016 - order passed by court.
k. 08.12.2016 - Advocate's notice by the learned counsel for respondent No.1 published in newspaper.
l. 19.01.2017 - Advocate's notice by the learned counsel for the respondent No.1 issued to the petitioners and others.
m. 25.01.2017 - Reply by the learned Counsel for the petitioners. n. 10.03.2017 - application under Section 151 CPC filed for enforcement of order. Petition numbered as 1370.
o. 11.05.2017 - Impleading allowed.
p. 20.07.2017 - Petitioners absent in court without steps. q. 09.08.2017 - petition filed by petitioners, but none appeared when matter was called.
r. 17.08.2017 - Impugned order passed.
CRP (I/O) 272/2017 Page 12 of 2519) By referring to the above, it is submitted that it cannot be said that it was behind the back of the petitioners. It is submitted that there was no attempt from the side of the petitioners to seek clarification on orders dated 23.08.2016, 29.11.2016 or 17.08.2017. There was no application for modification, alternation or variation of the orders. Moreover, no appeal or any other challenge against the said orders prior to filing of this present case.
20) It is submitted that the petitioners have not come with clean hands. It is submitted that the filing of TS No. 3/2017 and Misc. (J) Case No. 7/2017 was an example of the same. The said suit was filed on 02.01.2017, but although the petitioners admit about the receipt of notice and caveat, they do not implead the respondent No.1 and obtain an injunction in the collusive suit. It is submitted that as there are valid and lawful orders of injunction, they are required to be enforced.
21) In support of his argument, the learned counsel for the respondent No.1 has referred to the case of -
a. Satyabrata Biswas & Ors. Vs. Kalyan Kumar Kisku & Ors., (1994) 2 SCC 266 - on the on the effect of violation of the orders passed by the Court and enforcement of orders (para 4, 14, 17, 23).
b. Sadhana Lodh Vs. National Insurance Co. Ltd., (2003) 3 SCC 524 - on the power of the High Court under Article 227 of the Constitution of India, where right of appeal is provided and not availed (para-6). c. All Bengal Excise Licencees' Association Vs. Raghabendra Singh & Ors., (2007) 11 SCC 374 - on the effect of violation of the orders passed by the Court and enforcement of orders (para 34 to 39). d. Amar Singh Vs. Union of India, (2011) 7 SCC 69 - on the issue of consequences of coming to court with unclean hands (para 53-62). e. Anita International Vs. Tungabhadra Sugar Works Mazdoor Sangh & Ors., (2016) 9 SCC 44 - on the point that it was not open for the CRP (I/O) 272/2017 Page 13 of 25 respondent to give its own meaning to the order passed by the Court and it must be set aside by a competent court and once the order remains, it is required to be complied with (para 54, 55).
22) Considered the argument advanced by the learned counsel for the Petitioners and Respondent No.1. Perused the materials filed before this Court. Also called for the Lower Court Record (LCR), photocopy of Court Diary and Cause List of 09.08.2016 and perused the same.
23) The following points arise for consideration of this Court -
a. Whether the present challenge is maintainable under Article 227 of the Constitution of India, or whether the entertaining of this application shall amount to enlargement of scope of enquiry permissible under Article 227 of the Constitution of India?
b. Whether the respondent has notice of the orders dated 23.08.2016 passed by the learned Civil Judge No.1, Guwahati, in Misc. (J) Case No. 536/16 (in TS 347/16) and of order dated 29.11.2016 passed by in Misc. (J) Case No. 739/16?
c. Whether the Petitioners have violated or disobeyed the orders passed by the learned trial court, entitling the court to set the wrong right, by disentitling the petitioners to operate the business from the suit premises by closing it down and, as such, whether the impugned orders and consequent communication to the police to close the business establishment suffer from any jurisdictional error?
24) In order to answer the above, the court has adopted three-fold approach. First of all it must be dispassionately seen what would be the effect of obtaining an ex parte order against some defendants and then enforcing them against some other impleaded subsequently. Secondly, whether the newly impleaded defendant would be bound to have notice of all the orders passed in CRP (I/O) 272/2017 Page 14 of 25 the suit and connected misc. cases. Thirdly, whether the clock of time can be turned back to create a status quo ante.
25) In the suit i.e. TS No. 347/16 and in Misc. (J) Case No. 536/16, originally there were 4 defendants, i.e. Respondents No. 2 to 5. The events of the suit unfold from 15.07.2016 i.e. prior to filing of the suit. On this date, the respondents No. 2 to 5 enter into a lease with respondent No.6. The order passed on 23.08.2016 in Misc.(J) Case No. 536/16 was to restrain the defendants from transferring/ alienating/ allowing to use the suit premises till the next date of hearing. As per LCR, the notice of Misc. (J) Case No. 536/16, issued by the learned trial court, was served on the respondents No. 2 to 5 on 24.06.2016. The lease deed bear the signature of respondents No.2 to 5 and one Kalyani Brahma as lessors and the respondent No.6 as lessee. Therefore, the said (i) Kalyani Brahma, and (ii) respondent No.6 were not parties to the suit on 23.08.2016, when order was passed in Misc. (J) Case No. 536/16 or on 29.11.2016, when order was passed in Misc. (J) Case No. 739/16. It must be taken note of that when the learned trial court had passed order dated 29.11.2016, it was conscious and had also recorded in the order sheet that the respondent No.6 herein had taken the suit premises on lease and had entered into possession thereof and had also sub-let the suit premises to the petitioner No.1, who had entered into possession of the suit premises on 01.09.2016 and the car showroom was functional and sale and bookings of the cars were already underway. Therefore, the finding of this court is that as on 29.11.2016, the learned trial court was aware that third party rights had been created and as the present litigation was not initiated as on 15.07.2016, the said (i) Kalyani Brahma, (ii) respondent No.6, and (iii) the petitioners could not have any notice of the suit as no suit was pending on 15.07.2016.
26) As per the LCR, the learned trial had directed issuance of notice in Misc. (J) Case No. 536/16 on 30.05.2015. The notice of Misc. (J) Case No. 536/16 was issued only on 13.07.2017 and served on respondents No.2 to 5 on CRP (I/O) 272/2017 Page 15 of 25 15.07.2017, but yet the petitioners herein are still not made parties in the said case. Therefore, assuming they were under an obligation to abide by the order dated 23.08.2016, it would be on and from the date of service of such notice i.e. from 15.07.2017, but right on them had accrued on 15.07.2016. Therefore, in alleged violation of the said order, on 31.08.2016, the said respondents No.2 to 5 had merely registered the lease deed dated 15.07.2016. Therefore, notwithstanding such registration on 31.08.2016, but by virtue of the right created thereunder the said respondents No.2 to 5 had already alienated and parted with possession of the suit property in favour of the defendant No.5 on 15.07.2017, the date when the said lease deed was presented before the Sub- Registry for registration. Under the circumstances, there is nothing on record that on 29.11.2016, when order was passed in Misc. (J) Case No. 739/16, the present petitioners were parties to the proceeding or had violated any order passed by the learned trial court, rather, as per order dated 29.11.2016, the showroom of the petitioners was operating.
27) As per LCR, the respondent No.1 had presented petition No. 6769/16 dated 11.11.2016 under Order I Rule 10(2) CPC for impleading defendant No.5 (i.e. respondent No.6 herein). The impleading of Defendant No.5 was allowed by order dated 23.11.2016. Thereafter, petition No. 888/16 dated 10.03.2017 was filed under Order VI Rule 17 CPC. The said petition contained averments against the petitioners herein. The other petition was petition No. 889/16 dated 10.03.2017 under Order I Rule 10(2) read with section 151 CPC for impleading the petitioners in suit. No petition appears to have been filed by the respondent no.1 for impleading the said respondents as parties in Misc. (J) Case No. 536/16 and Misc. (J) Case No. 739/16. It must be remembered that Misc. (J) Case No. 739/16 was filed on 11.11.2016, when prayer for impleading defendant No.5 was on record, having been filed on same day. Yet, the said Misc. (J) Case No. 739/16 was presented without impleading the said (i) Kalyani Brahma, (ii) respondent No.6, and (iii) the petitioners. It contains no averment against the present petitioners. The information about the respondent No. 6 and the CRP (I/O) 272/2017 Page 16 of 25 petitioner No.1 is disclosed by the respondents No.2 to 5 by filing written objection on 22.11.2016. Therefore, as per LCR, the court is aware of the existence of the respondent No.6 and the petitioner No.1 and therefore, their particulars and lease dated 15.07.2016 and sub-lease dated 01.09.2016 finds mention in the order dated 29.11.2016, yet, the learned trial court has proceeded to pass an order to maintain status-quo in respect of the suit property further directing that no business or showroom will be opened "by anybody". Therefore, when the learned trial court is aware of the existence of petitioner No.1, whose showroom was in a running condition on 29.11.2016, at least as per disclosure made by the respondents No.2 to 5, therefore, by ordering that no business or showroom will be opened "by anybody", is essentially an order, which is not directed against any of the existing defendants, but against the petitioners herein, who are not parties to the suit or proceedings. The important factor which is prevailing in the mind of this Court is the fact that as on 22.11.2016, petition No. 889/16 dated 22.11.2016 had been filed for impleading the petitioners in the suit. Therefore, this is a clear case where an order was passed on 29.11.2016 in Misc. (J) Case No. 73916 and then sought to be imposed and implemented on the petitioners and respondent No.6, who are impleaded only on 11.05.2017 as per trial court's order dated 11.05.2017 in Misc. (J) Case No. 536/16, notwithstanding that the impleading of Defendants No. 6 to 8 was allowed also by order dated 10.03.2017 passed in TS 347/16. However, summons of TS No. 347/16 was issued on the said newly impleaded defendants No. 6 to 9 i.e. petitioners herein by the learned trial court on 13.07.2017 and served on 15.07.2017.
28) If any party is impleaded under Order I Rule 10(2) CPC, it is provided in the provisions of Order I Rule 10(5) that subject to the provisions of the Limitation Act, 1877, section 22 (now corresponding to Section 21 of Limitation Act, 1963), the proceedings of any person added as defendant shall be deemed to have begun only on the service of summons.
CRP (I/O) 272/2017 Page 17 of 2529) In the present case in hand, the respondent No.1 has not produced any material on record to show that the petitioners are parties in Misc. (J) Case No. 536/16 as on 17.08.2017, when the order impugned herein was passed. Therefore, notwithstanding that the petitioners were served with notice on petition No. 1370 arising out of Misc. (J) Case No. 536/16, they not being the parties to Misc. (J) Case No. 536/16 and Misc. (J) Case No. 739/16, there is no material to show that they were parties to the said proceedings notwithstanding their impleading in TS 346/16. It is well known that one may implead many persons as defendants in suit but be at liberty to seek injunction against only a few defendants. Therefore, unless there is materials to the contrary that the injunction was effectively passed against a particular party to the suit, the order for injunction dated 23.08.2016 and 29.11.2016 cannot be said to be binding on the petitioners herein in the light of the fact that on 29.11.2016, not only the respondent No.1, but also the learned trial court had the specific knowledge that the petitioner No.1 herein had started a car showroom, which is operational.
30) Therefore, when such a situation is confronted by the learned trial court, it is expected that the learned trial court should invoke the powers under the provisions of Order XXXIX Rule 7 CPC to carry out inspection of the suit property, before venturing to restrain any third party, not impleaded in the suit to be bound by the order of injunction.
31) Under the situation, by passing an order not to use the suit premises, in the proceeding of Misc. (J) Case No. 536/16, where the petitioners are not a party as on today i.e. 20.09.2017, this court holds that such an order cannot be enforced as sought to be done by order dated 17.08.2017 in Misc. (J) Case No. 536/16 by issue direction to the concerned police. Moreover, there was no order to close the showroom, as sought to be enforced by notice to police. The said enforcement is contrary and distinctly different from the order dated 29.11.2016 passed in Misc. (J) Case No. 739/16 to "not open the showroom". Thus, the CRP (I/O) 272/2017 Page 18 of 25 manner of enforcement by order dated 17.08.2016 is found to be contrary to the said order dated 29.11.2016.
32) The operative part of the said order dated 29.11.2016 in Misc. (J) Case No. 739/16 and 17.08.2017 in Misc. (J) Case No. 536/16 must be read in its entirety and cannot be partly read, which would convey a totally incorrect picture. The same is reproduced below:-
"29.11.2016 ... Accordingly, the defendants/ Opposite parties, their men, employees, etc. are hereby restrained from transferring/ alienating/ allowing to use the suit premises till the next date of hearing..."
"17.08.2017 ... From the above mentioned reason in consonance with the judgment mentioned above and (2007) 11 SCC 374 - All Bengal Licencees' Assn. - Vs- Raghabendra Singh & Ors. and (2016) 9 SCC 44 Anita International -Vs- Tungabadra Sugar Works Mazdoor Singh (sic.) & Others, this court is with the opinion that in order to prevent the disputed property from being alienated, transferred, etc. the court is duty bound as a policy to set the wring right. Accordingly it is directed that the defendants/ O.Ps will maintain status-quo over the suit property till disposal of the suit. Further no showroom/ business establishment etc. will be opened formally by anybody in the suit premises till disposal of the suit. The misc. case is disposed of."
33) Thus, firstly, as per order dated 17.08.2017, only the defendants/ Opp. Parties, who were then parties to the case were to maintain status quo. The order or status quo was to prevent alienation, transfer, and that no showroom would be opened, which means that the learned court must be held to be referring to some future events to come, and the learned trial court was definitely not referring to any past events because as per order dated 29.11.2016 in Misc. (J) Case No. 739/16, the showroom of the petitioner No.1 under the name of Guwahati Metropolitan is admittedly operational. Thus, by order dated 17.08.2017 a running business cannot be ordered to be closed in guise of enforcement.
CRP (I/O) 272/2017 Page 19 of 2534) As has been stated earlier, as on 29.11.2016 and even on 17.08.2017, the present petitioners are not parties to Misc. (J) Case No. 536/16 and Misc. (J) Case No. 739/16 (disposed on 29.11.2016). Therefore, this is a clear case where order passed in absentia is enforced on third party to the proceedings of Misc. (J) Case No. 536/16. Although the injunction is not to open a showroom, yet by notice to the police, an operational showroom as on 29.11.2016 is sought to be closed. This would lead to a situation prevailing before 15.07.2016, i.e. prior to execution of the lease and even prior to the institution of the suit, when no third party right was created on the suit property in respect of respondent No.6 herein. It is a well settled principle of law that by an order or injunction clock cannot be put ante. It can be used to prevent happening of events envisaged under Rule 1 of Order XXXIX or to prevent repetition or prevention of breach. But only when there is a violation, a ad-interim mandatory injunction may be granted to put to the clock ante, which is not the situation in this case in hand. Thus, the view of the court as expressed in paragraph 24 is answered in paragraphs 25 to
34.
35) Therefore, when on 22.11.2016, the respondent No.1 has prayed for impleading the petitioners, amongst others under Order I Rule 10(2), and as on 29.11.2016 and even on 17.08.2016, when the present petitioners are not parties to Misc. (J) Case No. 536/16 and Misc. (J) Case No. 739/16, this is a clear case where orders are allowed to be passed in absentia and then by order dated 17.08.2017, the said orders dated 23.08.2016 and 29.11.2016 are sought to be enforced on third party to the proceedings of Misc. (J) Case No. 536/16, this appears to be a clear case where the jurisdiction has been exercised by the learned trial court illegally and with material irregularity. The learned court is found to have ignored its writings in order dated 29.11.2016 that the showroom of petitioner No.1 had already become functional and cars have already arrived for sale and bookings. Although the ad-interim injunction dated 29.11.2016 in Misc. (J) Case No. 739/16 was not to open a showroom, yet by notice to the police in Misc. (J) Case No. 546/16, an operational showroom as on 29.11.2016 CRP (I/O) 272/2017 Page 20 of 25 is sought to be closed. There is no categorical finding recorded by the learned trial court about the date on which the car showroom of the petitioners have commenced business before arriving at a finding that order or injunction was breached. There was no application complaining about any violation of ad-interim injunction by the petitioners, no evidence was led in the case.
36) Interestingly, Petition No. 1370 dated 10.03.2017 was filed under Section 151 CPC. As per the petition, it was filed in TS 347/16. The cause title of the case is "Ghosh Brothers Car Private Limited ... Petitioner - Versus - Smti Anjana Brahma & 4 others ... Opposite Parties." It does not name who are the '4' others. Cause title does not name any of the petitioners. There are averments against the petitioners, respondent No.6 and against car manufacturers. However, car manufacturer is not made parties to the petition. The petitioners are impleaded in TS 347/16 by order dated 10.03.2015 and again by order dated 11.05.2015. No effort is taken to amend the cause title of petition No. 1370 and the petitioners are not party in Misc. (J) Case No. 536/16, so when the order dated 17.08.2017 on petition No. 1370, the petitioners are not a party in this petition. The order on petition No. 1370 is passed in the proceedings of Misc. (J) Case No. 536/16, the petitioners are not a party. This petition No. 1370 dated 10.03.2017 contained prayer for directing the Officer In Charge of Basistha P.S. to close down the showroom in the name and style of Guwahati Metropolitan. Advocate's notices dated 19.01.2017 to the petitioners and others as well as Advocate's Reply by the petitioners is also annexed there. Yet, the learned trial court overlooked as to who would be the affected party if an operational showroom is closed down. The effective order dated 17.08.2017 reads -
"Considering all aspects as the order dated 29.11.16 has not been complied with by the defendant, at this stage this court is with the opinion to direct the concerned officer of the police station to enforce the order dated 29.11.16, accordingly, it is done here by." However, in the notice issued to the police, direction is issued as follows - "And whereas this court vide an order dated 17.08.2017 was pleased to direct the concerned police station for enforcing and CRP (I/O) 272/2017 Page 21 of 25 implementation of the said order dated 29.11.2016 closing down the show room running in the name and style of 'Guwahati Metropolitan' over the suit property which was opened in violation of the said order dated 19.11.2016. In view of the above and in terms with the order dated 17.08.2017 you are hereby directed to enforce and implement the order dated 29.11.2016 by closing down the show room running in the name and style of 'Guwahati Metropolitan' over the suit property and thereafter submit a compliance report before this Court on the 14th day of September, 2017 at 10.30 am in the forenoon." This is nothing but a colourable exercise of power, which amounts to exercise a jurisdiction not vested in the court. There was no finding recorded about the date when the showroom had come into existence. Rather, in order dated 17.08.2017, it is recorded that "... Guwahati Metropolitan and have been continuing to carry out the business of selling cars by using the suit premises by willful violation and disobedience of order dated 23.08.2016 and 29.11.2016." Thus, even the trial court records a categorical finding in the impugned order dated 17.08.2017 that showroom was operating on 23.08.2016 and 29.11.2016. The order dated 17.08.2017, is therefore, ex-facie illegal because it records something other in the order dated 17.08.2017 and its notice to police contains something not available in the order. This is one of the cases, where power under Article 227 of the Constitution of India is required to be invoked and exercised to keep the subordinate court within the bounds of law. Hence, the first point of determination is answered by holding that the present challenge is maintainable under Article 227 of the Constitution of India. The entertaining of the present application does not amount to enlargement of scope of enquiry permissible under Article 227 of the Constitution of India. The inherent error contained in (i) the order dated 23.08.2016 in Misc. (J) Case No. 536/16, (ii) order dated 29.11.2016 in Misc. (J) Case No. 739/16, (iii) order dated 17.08.2017 in Misc. (J) Case No. 536/16 and
(iv) notice dated 01.09.2017 to the Officer- In- Charge, Basistha Police Station can only be set right by invoking Article 227 of the Constitution of India as the cumulative effect of the said orders are that these orders are passed behind the back of the petitioners as they are not parties in these two Misc. (J) Cases and CRP (I/O) 272/2017 Page 22 of 25 then the petitioners are impleaed in the suit i.e. TS 347/16 by order dated
11.05.2017, summons on petitioners is served only on 15.07.2017, and then the said orders are sought to be implemented and enforced against the petitioners through notice to police, the contents of which do not conform to the contents of the order dated 17.08.2017. The said orders and notice to police are all set aside and quashed.
37) As to the second point of determination, in view of provisions contained in Order I Rule 10(5) CPC, the petitioners are held to be parties in TS No. 347/16 w.e.f. from the date of service of summons on them i.e. on and from 15.07.2017. Merely, because the petitioners are parties in TS 347/16, this court is inclined to hold that the impleading of the parties in TS 347/16 will not have the effect that the petitioners had notice to comply with the orders dated 23.08.2016 passed by the learned Civil Judge No.1, Guwahati, in Misc. (J) Case No. 536/16 (in TS 347/16) and of order dated 29.11.2016 passed by in Misc. (J) Case No. 739/16 (in TS 347/16). They merely have the notice of petition No. 1370, but as proceedings on petition No. 1370 was taken up in Misc. (J) Case No. 536/16, and the petitioners are not under any direction by the learned trial court to follow any specific orders, there was no material before the learned trial court to hold that the petitioners had violated any orders passed by the learned trial court so as to direct closing down of a showroom held by the learned trial court in order dated 17.08.2017 to be operating when herein before referred order dated 23.08.2016 and 29.11.2016 were passed. The communication to the police is held to be contrary to the contents of the order dated 17.08.2017, as such, it suffers from jurisdictional error. The second and third point of determination is answered accordingly.
38) In so far as the cases cited by the learned counsel for the respondent is concerned, the same are not applicable under the facts of the present case in hand. Those cases do not deal with a situation where orders are obtained behind the back of the parties and then after impleading them in suit without impleading CRP (I/O) 272/2017 Page 23 of 25 them in the injunction application, such orders are sought to be enforced. Hence, this order is not required to be any further burdened with the discussions on those cited cases. For the same reasons, the orders passed by the learned Civil Judge No.3, Kamrup (M), Guwahati in Misc. (J) Case No. 7/2017 arising out of TS No. 3/2017 is just ignored by this court as those orders were also passed without impleading the respondent No.1 therein. The said order is not the subject matter of challenge herein.
39) As a result, the challenge to the impugned orders under Article 227 of the Constitution of India is maintainable, because as the present petitioners are not parties in Misc. (J) Case No. 536/2016 and Misc. (J) Case No. 739/2016, therefore, they cannot file any appeal under Order XLIII Rule 1(r) CPC unless a leave to file an appeal is obtained. This application stands allowed. Resultantly,
(i) the order dated 23.08.2016 in Misc. (J) Case No. 536/16, (ii) order dated 29.11.2016 in Misc. (J) Case No. 739/16, (iii) order dated 17.08.2017 in Misc. (J) Case No. 536/16, and (iv) notice to police dated 01.09.2017 to close down the showroom of 'Guwahati Metropolitan' all passed in connection with T.S. No. 347/16 by the learned Court of Civil Judge No.1, Kamrup (Metropolitan), Guwahati, stands set aside and quashed only against the petitioners.
40) The petitioners shall produce a certified copy of this order before the Officer- In- Charge of Basistha Police, Guwahati and before the learned Civil Judge No.1, Kamrup, Guwahati for information.
41) The parties are left to bear their own cost.
42) The below mentioned records, which had been requisitioned this Court
by special messenger, are returned.
CRP (I/O) 272/2017 Page 24 of 25
(i) Photocopy of Court diary and Cause list of 09.08.2017.
(ii) TS 347/17 with all connected Misc. (J) Cases therein.
JUDGE MKumar CRP (I/O) 272/2017 Page 25 of 25