Calcutta High Court
Shib Krishna Debutter Estate vs Janab Jalaluddin Ahmed Siddique & Ors on 24 November, 2010
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
CS No. 224 of 2009
GA NO.3239 OF 2009
GA NO.2424 OF 2010
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
SHIB KRISHNA DEBUTTER ESTATE
Versus
JANAB JALALUDDIN AHMED SIDDIQUE & ORS.
BEFORE:
The Hon'ble JUSTICE SANJIB BANERJEE
Date : 24th November, 2010.
Appearance :-
Mr.A. Chatterjee, Adv.,
for the defendant nos.1 and 2.
Mr.P.K. Dutta Adv.,
for the plaintiff.
Mr.R. Chowdhury, Adv., for the
defendant nos.3, 4 and 5.
Mr.Sandip De, Adv., for the CMC.
Mr.M. Saha Roy, Av.,
for the Special Officer.
The Court : GA No.3239 of 2009 is the plaintiff's first
interlocutory application in this suit on which an erroneous
order was passed on December 11, 2009.
The reliefs claimed in the suit are as follows :-
a) The petitioner prays leave under Order 2 Rule 2 of
the Code of Civil Procedure 1908;
b) A decree for declaration to the effect that the
Respondent Nos.1 to 7 are liable jointly and
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severally to pay the arrear municipal taxes with interest and penalty as dues up to date for Rs.78,41,846/- as mentioned in paragraph 19 above including other taxes and outgoings in respect of their respective portion of tenancies in premises No.27, Weston Street, Assessee No.11-046-65-0016-1, P.S. Bowbazar, Kolkata-700012;
c) A decree directing the Respondent Nos.1 to 7 to pay all arrear of municipal taxes and other taxes and outgoings and go on paying the same regularly in respect of their respective portion of tenancies in premises No.27, Weston Street, P.S. Bowbazar, Kolkata-700012.
d) A decree for mandatory injunction directing the Respondent Nos.8 and 9 to attach and collect the rent and occupation charges as payable by the sub-tenants and occupiers of the Respondent Nos.1 to 7 in premises No.27, Weston Street, Kolkata and upon paying certain amount to the Petitioner towards mesne profit and/or damages for such illegal occupation as this Hon'ble Court may be pleased to determine to adjust the balance amount against the arrear 3 municipal taxes of premises No.27, Weston Street, P.S. Bowbazar, Kolkata-700012 Assessee No.11-046-65- 0016-1 pending adjudication of the writ proceeding before the Hon'ble Court;
e) Permanent injunction restraining the Respondent Nos. 8 and 9 from taking any steps or further steps or any action or actions in terms of and/or in connection with the Distress Warrant dated 15th February, 2006 in any manner whatsoever;
f) Injunction;
g) Receiver;
h) Local inspection and commission
i) Attachment;
j) Costs;
k) Further and other relief or reliefs." As would be evident from such reliefs, none of them seek any injunction against the defendant nos.1 to 7 or any of them from inducting other persons at the suit premises. Whatever may have been pleaded in the plaint, the reliefs are limited to a declaration that the defendant nos.1 to 7 are liable to pay the municipal rates and taxes and a direction on the defendant nos.1 to 7 to pay the municipal rates and 4 taxes. The other principal reliefs are directed against the municipal corporation and its named officer who has been impleaded.
In such circumstances, there was no question of the following first prayer being made by way of an interlocutory application :
"a) An order of injunction be passed restraining the respondent nos.1 to 7 and each of them and their men, agents from inducting any person or persons in the suit premises in any manner whatsoever."
There was no authority for such prayer being made, far less of an order in terms of such prayer being grated since all interlocutory prayers need to be based on the reliefs claimed in the suit. The order, erroneously made, may have subsisted for two years but it is never too late for the Court to correct its mistake. It will be an excuse to suggest that there is an element of reliance placed on Counsel and the Court may not always inspect the reliefs claimed in the suit, but it was an error on the court's part nonetheless. The mistake was one where the Court exceeded its authority to grant an order that was not mandated by the reliefs claimed in the suit.
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On the ground that the principal interlocutory prayer is in excess of the reliefs claimed in the suit and on the ground that such an order was obtained and enjoyed for a period of two years, the application is libale to be dismissed without considering any other material.
Accordingly, GA No.3239 of 2009 is dismissed. All interim orders stand vacated. There will be no order as to costs.
This order will not preclude the plaintiff from seeking other interlocutory reliefs, including those contained in GA No.3239 of 2009 other than prayer (a), by way of any subsequent interlocutory application, if it is otherwise entitled.
Urgent certified photocopies of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(SANJIB BANERJEE, J.) sd/