Gauhati High Court
Swapan Das vs Pradip Kumar Paul & 6 Ors on 26 April, 2017
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM &
ARUNACHAL PRADESH)
CRP 135 of 2017
SHRI SWAPAN DAS .....Petitioner
-Versus-
1. SHRI PRADIP KUMAR PAUL
2. SHRI PRANAB KUMAR PAUL
3. SHRI PRASANTA PAUL
4. SHRI PRASENJIT PAUL
5. SMTI. SHIKHA PAUL
6. SMTI. KEYA PAUL
7. SMTI. SUPRAVA PAUL ....Respondents
BEFORE HON'BLE MR. JUSTICE KALYAN RAI SURANA Advocates for the Petitioners : Mr. P.K. Roy, Mr. S.K. Chakraborty, : Ms. A. Chakraborty, Ms. M. Dutta.
Advocates for the Respondent : Mrs. R. Choudhury,
: Mr. A.H.M.R. Choudhury.
Date of hearing : 24.04.2017.
Date of judgment and order : 26.04.2017.
JUDGMENT AND ORDER (CAV)
Heard Mr. P.K. Roy, the learned Counsel for the petitioner and Mrs. R. Choudhury, the learned Counsel for the respondent No.4/ caveator.
2) The challenge in the present application filed under Article 227 of the Constitution of India is the order dated 05.04.2017, passed by the learned Court CRP 135/2017 Page 1 of 8 of Civil Judge, Karimganj in Misc. Appeal No. 7/2017, thereby dismissing the said appeal filed against the order dated 28.03.2017, passed by the learned Court of Munsiff No.2, Karimganj, by which the prayer for an ad-interim injunction was rejected.
3) In short, the case by the learned counsel for the petitioner is that the petitioner was arrayed as Defendant No.1 in T.S. No. 170/2003, which was filed by the respondents No. 1 to 7 herein. The said suit, inter-alia, was for recovery of arrear rent and for ejection of the petitioner as well as one Narayan Choudhury from the suit premises on the ground that the petitioner herein had inducted the said Narayan Choudhury as a sub-tenant in the suit premises. The said suit was allowed by the learned Munsiff No.2, Karimganj vide judgment and decree dated 19.06.2006 and the petitioner herein together with the said Narayan Choudhury were held liable to be ejected from the suit premises on the ground of sub-letting of the suit premises. An appeal was preferred before the First Appellate Court, i.e. learned Civil Judge, Karimganj and the said appeal was registered as Title Appeal No. 69/2006, which was also dismissed by passing of the First Appellate judgment and decree dated 17.11.2009 and the decree passed by the learned Trial Court was upheld. Both the said judgments were assailed before this Court by filing CRP No. 96/2010. This Court, by judgment and order dated 02.06.2015 was pleased to dismiss the revision by finding no infirmity in the decree passed by the courts below on the ground of sub-letting. The petitioner herein filed a Special Leave Petition before the Hon'ble Apex Court, which was numbered as SLP(C) No. 7355/16 and the same was dismissed by order dated 09.03.2016 by granting three month's time to the petitioner to vacate the suit premises.
4) It is further submitted that in the meanwhile, the decree was put into execution and the same was registered as Title Execution Case No.2/2015. In the said execution proceeding, the petitioner herein had filed his objection to the execution under section 47 read with section 151 of the Civil Procedure Code, CRP 135/2017 Page 2 of 8 which was registered as Misc. (J) Case No. 92/2016. The said objection was rejected.
5) It is submitted that thereafter, the petitioner herein had come to know that the Registration Certificate (Ext.4) issued under the Shops & Establishment Act, 1971, which was the basis of decreeing the suit was fraudulently obtained and, as such, the decree passed in Title suit No. 170/2003 was challenged by filing Title Suit No. 225/2016, which is also pending for disposal before the Court of Munsiff No.2, Karimganj. Along with the said suit, the petitioner filed a petition under Order XXXIX Rules 1 and 2 read with section 151 of the Civil Procedure Code, which was registered as Misc. Case No. 203/16, inter-alia, praying for an order to restrain the respondents herein from further proceeding with Title Execution Case No. 2/2015, pending before the same learned court.
6) It is projected by the learned counsel for the petitioner that in the proceedings of Title Execution Case No. 2/2015, the petitioner had also filed an application under Order XXI Rule 29 read with section 151 of the Civil Procedure Code for staying the execution proceeding. The said petition was registered as petition No. 219/14 dated 08.11.2016. The learned Court of Munsiff No.2, Karimganj, by an order dated 28.03.2017, rejected the prayer for injunction. As already stated above, the matter was carried in appeal and dismissal of the appeal, this revision has been filed.
7) The learned Counsel for the petitioner has submitted that notwithstanding that the decree passed in TS No. 170/2003 has been affirmed in appeal, revision and by the Hon'ble Apex Court, the petitioner has a good ground to set aside the said decree as it is vitiated by fraud. It has been submitted that only on 06.12.2016, the petitioner could collect a certificate from the Office of the Labour Officer, Karimganj that no registration certificate was issued under Assam Shops & Establishment Act, 1971 in respect of Old Holding No. 94, New Holding No. 105, Ward No. 19 of Santar Bazar, Karimganj in the year 2001. It CRP 135/2017 Page 3 of 8 was agued that the said document was a testimony to his case that the Ext.4 in TS No. 170/2003 was instrumental in obtaining a fraudulent decree and, as such, the petitioner has been able to make out a good prima facie case for an ad- interim injunction. It is stated that by ignoring the said certificate, both the learned courts committed jurisdictional error, for which the impugned orders could be interfered with in the present revision. It is also submitted that the petitioner is a poor vegetable vendor.
8) The learned counsel for the respondent No.4/ caveator submits that this was not a fit case to be admitted or entertained and the same was liable to be dismissed at the threshold because of the fact that this Court in its judgment dated 02.06.2015 passed in CRP No. 96/2010, has specifically mentioned in paragraph 4.3 thereof as follows:
"4.3 Then the Court noted the Registration Certificate (Exbt.-4) of the tenanted shop under the Assam Shops and Establishment Act, 1971 (hereinafter referred to as the "1971 Act"). The certificate issued by the authorities under the Act reflected that the shop was registered in the name of M/s. Narayan Choudhury, Santar Bazar. Then the Court considered the likelihood of an owner registering his shop in the name of his employee in normal course of affairs. After weighing the possibility, the Court disbelieved the case pleaded by the defendants and declared that the defendant No.2 was running his own shop registered under his own name in the tenanted premises and the shop was sublet to DW-2 by DW-1. On that basis the issue No.4 was answered against the tenants. Consequently, the ejectment suit was decreed on 19.06.2006 (Annexure-III) by the learned Civil Judge (Jr. Division) No.2, Karimganj."
9) It is further submitted by the learned counsel for the respondent No.4 that in order to suppress the said fact, the petitioner has not only omitted to file the copy of the aforesaid judgment dated 02.06.2015 passed by this Court in CRP 135/2017 Page 4 of 8 CRP No. 96/2010, but has also not filed the copy of the Registration Certificate (Ext.4 of TS No. 170/2003), or the purported certificate dated 06.12.2016, issued by the Office of the Labour Officer, Karimganj, which was the basis of filing the suit.
10) The learned counsel for the respondent No.4 further submitted that Registration Certificate marked as Ext.4 in TS No. 170/2003 was issued under the provisions of the Assam Shops & Establishment Act, 1971 and was in respect of a shop in the name of M/s. Narayan Choudhury, i.e. in the name of Narayan Choudhury, who was arrayed as defendant No.2 in the said suit and also arrayed as Defendant No.8 in TS No. 225/16, filed by the petitioner herein. However, for the reasons best known to the petitioner, the said Narayan Choudhury or his firm has not been made a party in the present revision. Moreover, it is also strenuously argued that the Ext.4 was a pivotal document for decreeing TS No. 170/2003 and was upheld in appeal and also in the revision before this court, but the correctness thereof was never doubted by the petitioner herein in the said proceedings at its three stages of suit, appeal and revision, as such, the certificate now produced in TS No. 225/16, which has no mention of M/s. Narayan Choudhury, cannot be of any assistance to the petitioner for staying the execution or enforcement of the otherwise lawful decree. It is further submitted that in the unlikely event of the present suit being decreed, the petitioner can always claim restitution. The learned counsel for the respondent No.4 submits that the petitioner, who as per his own projected case, employs Narayan Choudhury, an employee to run his business in whose name even a trade licenceof M/s. Narayan Choudhury under Shops & Establishments Act, 1971 is obtained, by no stretch of imagination can be termed to be a 'poor' person, as claimed by the learned counsel for the petitioner, rather, it establishes the existence of sub-tenancy, for which the TS No. 170/2003 was rightly decreed.
11) This court, having considered the rival submissions of the learned counsels for the petitioner and the respondent No.4, is of the considered opinion CRP 135/2017 Page 5 of 8 that both the learned Trial Court as well as the First Appellate Court had refused injunction. It is seen that the learned Trial Court held that the Ext.4 was under
scrutiny of all the courts of the land and the decree passed in TS No. 170/2003 was upheld by the highest Court of the land, and based on the said fact, the learned trial court held that a great miscarriage of justice would be done if the opposite parties therein are restrained from getting the fruits of their hard earned decree and that if the petitioner is able to prove his case, the courts had ample power to restore his possession over the suit premises. Further, the learned first appellate court had held that the plea of the petitioner was hit by Section 11 Explanation IV of the Civil Procedure Code, i.e. constructive res- judicate and dismissed the Misc. Appeal on the ground of lack of prima facie case, which did not deserve any admission of appeal.
12) This court is also unable to accept the argument advanced by the learned counsel for the petitioner that the purported Certificate dated 06.12.2016 (a photocopy of which was produced at the time of argument), was sufficient to dislodge the evidentiary value of Ext.4 i.e. Registration Certificate issued to M/s.
Narayan Choudhury (defendant No.2 in TS No. 170/2003) under the Assam Shops & Establishments Act, 1971. In this regard, it is seen that every place the said Act is applicable, an establishment (unless exempted) must have a registration as provided in section 36 of the said Act and the Registration Certificate under Form-Q is issued under the provisions of Rule 47 of the Assam Shops & Establishment Rules, 1976. Therefore, once it has been held in the trial of TS No. 170/2003 that the Registration Certificate (Ext.4) was issued in the name of M/s. Narayan Choudhury, the Certificate dated 06.12.2016 is found to be totally unacceptable to the contrary, because the said certificate did not disown that no certificate was issued in the name of M/s. Narayan Choudhury, which is the name of defendant No.2 in TS No. 170/2003, and who was adjudged to be the sub-tenant in the suit premises. The said Certificate reads as follows:-
"GOVERNMENT OF ASSAM LABOUR & EMPLOYMENT DEPARTMENT CRP 135/2017 Page 6 of 8 OFFICE OF THE LABOUR OFFICER KARIMGANJ TO WHOM IT MAY CONCERN Certified that no Registration Certificate was issued under the Assam Shops & Establishment Act, 1971 in respect of Old Holding No. 94, New Holding No. 105, Ward No. 19 of Santar Bazar, Karimganj in the year 2001.
Dated Karimganj the 6th Dec.2016. sd/- (illegible) Labour Inspector & Registering Officer Assam Shops & Establishment Karimganj".
13) Hence, this court has not found any material to find even a prima case for trial for grant of ad-interim injunction in favour of the petitioner. Thus, the balance of convenience is found to be heavily tilted in favour of the respondents and against the grant of injunction. Moreover, the respondents are found to suffer comparatively more irreparable hardship if the execution of decree in TS No. 170/2003, which has been upheld upto the Hon'ble Supreme Court is stayed.
14) Moreover, this Court is bound by the ratio of the case of Wander Ltd. V. Antox India Ltd., reported in(1990) Supp SCC 727, where the Hon'ble Supreme Court has, inter-alia, been held that the appellate court will not interfere when lower court has not exercised its discretion arbitrarily or perversely. The same ratio will apply to this revisional court as well because the petitioner has not been able to persuade this court to even prima facie believe that both the learned courts had either acted arbitrarily or perversely or exercised jurisdiction illegally or with material irregularity.
15) Hence, this court does not find any jurisdictional error whatsoever, in the orders passed by the learned Trial Court as well as the first appellate court so as to invoke the powers under section 115 of the Civil Procedure Code, as such, CRP 135/2017 Page 7 of 8 this revision stands dismissed.The impugned orders dated 05.04.2017, passed by the learned Court of Civil Judge, Karimganj in Misc. Appeal No. 7/2017, and the order dated 28.03.2017, passed by the learned Court of Munsiff No.2, Karimganj are both upheld.
16) It is made clear that the observations made herein shall not influence the learned courts below in course of trial of the said TS No. 225/2016.
17) The parties are left to bear their own cost.
JUDGE
Mkumar.
CRP 135/2017 Page 8 of 8