Calcutta High Court (Appellete Side)
Swapan Kumar Dey vs Smt. Arati Nandy on 28 November, 2011
Author: Prasenjit Mandal
Bench: Prasenjit Mandal
1
Form No.J(2) IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
C.O. No. 3920 of 2008
Present :
The Hon'ble Mr. Justice Prasenjit Mandal
Swapan Kumar Dey.
Versus
Smt. Arati Nandy.
For the petitioner: Mr. B.K. Banerjee,
Mr. B.P. Mondal.
For the opposite party: Mr. S.P. Roychowdhury,
Mr. N.N. Choudhury,
Mr. Ashis Kr. Das.
Heard On: 09.08.2011, 01.09.2011, 05.09.2011, 12.09.2011,
01.11.2011, 14.11.2011 & 16.11.2011.
Judgement On: November 28, 2011.
Prasenjit Mandal, J.: This application is directed against the
judgment and order dated June 11, 2008 passed by the learned
Additional District Judge, 7th Fast Track Court, Alipore in Misc.
Appeal No.355 of 2006 thereby dismissing the said misc. appeal on
contest.
The appellant is the petitioner herein. The plaintiff /
respondent / opposite party instituted a suit being Title Suit
No.259 of 2004 before the learned Civil Judge (Junior Division), 2 2nd Court, Alipore praying for decree for permanent injunction restraining the defendant, his men and agents from creating any disturbance to the plaintiff in her peaceful enjoyment of the premises in suit and other permanent injunction. The plaintiff has contended that she is the owner of the premises in suit as described in the Schedule of the plaint and the appellant / petitioner herein was a tenant in respect of the premises in suit as described in the schedule of the plaint in the 2nd Floor Flat at 95/1, Ballygunge Place, under P.S. Gariahat, Kolkata - 700019. As per averment of the plaint, the plaintiff let out the premises in suit in July 1990 to the defendant, but, in fact, his mother and younger brother occupied the said premises in suit. The defendant installed electric meter in his tenanted premises in his own name.
In or about July 1998, the defendant permanently surrendered the premises in suit and his mother and younger brother were shifted to his own house situated at 87, Shakespeare Sarani, Kolkata - 700017. But at the time of leaving of the suit premises for ever, he requested the plaintiff and her husband to allow him to keep a few scattered articles with promise to take back those articles within a month. The parties to the suit had a good relationship and as such, the plaintiff allowed the defendant to keep some scattered articles with hope and trust that the defendant would take away the same within a month. The plaintiff kept the said premises in suit under lock and key since the time 3 of departure of the defendant, his mother and the younger brother. After surrender of the said flat, the husband of the plaintiff took electric connection in his own name in the premises in suit from the same meter allotted to the defendant on surrender by the defendant as well as upon withdrawal of the security deposit by the defendant. Subsequently, the defendant did not remove his scattered articles and he tried to create multifarious troubles to the plaintiff posing threat to the plaintiff to encroach the premises in suit and for that reason, the plaintiff filed the suit for the reliefs already stated.
She filed an application for temporary injunction before the learned Trial Judge and the learned Trial Judge granted interim order of injunction. Being aggrieved, the defendant filed an application under Order 39 Rule 4 of the C.P.C. Subsequently, during the pendency of the suit, he filed another application under Order 39 Rule 1 & 2 of the C.P.C. for mandatory injunction (i.e. recovery of possession).
Thereafter, all the three applications, i.e., the application under Order 39 Rule 1 & 2 of the C.P.C. filed by the plaintiff and the applications under Order 39 Rule 4 of the C.P.C. and under Order 39 Rule 1 & 2 of the C.P.C. filed by the defendant were heard and disposed of by the common Order No.40 dated July 14, 2006 holding that both the parties should maintain status quo in respect of the premises in suit and that the defendant had failed 4 to prove that he was still a tenant in respect of the premises in suit.
Being aggrieved by the said order, the defendant preferred a misc. appeal being Misc. Appeal No.355 of 2006. That misc. appeal was also dismissed by the impugned order. Being aggrieved, this application has been preferred by the defendant / appellant / petitioner herein.
Now, the question is whether the impugned order should be sustained.
Upon hearing the learned Counsel for the parties and on going through the materials on record, I find that the petitioner has raised a dispute as to the identity of the premises in suit. So, it should be decided first what is the premises in suit. So, I am discussing this issue first.
Mr. Banerjee, learned Senior Advocate appearing for the petitioner has contended vigorously that there is very much dispute as to the identity of the premises in suit. The plaintiff has described the premises in suit differently in her different applications to the different authorities. While filing the suit as well as the application under Section 144(2) of the Cr.P.C. the plaintiff has described the suit premises in suit / case as the 3rd Floor of the premises at 95/1, Ballygunge Place, in other applications to the court she has described the premises in suit as 2nd Floor of the said premises. Thus, he submits that by 5 describing different premises at different places, the plaintiff got the orders from the court and the concerned authority. Whatever may be the position as appearing from the xerox copy of the papers filed in this revisional application, from the challans showing the deposits of rent by the defendant / petitioner as well as the admitted position, I find that the defendant was a tenant under the plaintiff in respect of the 2nd floor flat at 95/1, Ballygunge Place, Kolkata - 700019. It may be mentioned herein that as per order of the Division in F.M.A. No.1023 of 2005 a local inspection of the premises in suit was held in presence of both the parties and the parties identified the premises in suit to the learned Commissioner and then the Commission was held. When the parties knew well what was premises in suit and they proceeded with the suit and proceedings accordingly, in accordance with the decision of Md. Nissar v. Md. Anis & ors. reported in 83 CWN 601 (which also relied on 23 CWN 77), there cannot any dispute relating to the identity of the premises in suit. The defendant / petitioner herein also lodged a proceeding under Section 144(2) of Cr.P.C. before the learned Executing Magistrate and deposited rents for two months with the Rent Controller as per materials on record, appearing at page no.s 53, 47 & 48 respectively wherein the defendant had clearly described that the premises in suit was the 2nd floor flat at 95/1, Ballygunge Place, Kolkata - 700019. The other papers filed by him also indicate that the premises in 6 suit is the 2nd Floor flat at 95/1, Ballygunge Place. The xerox copy of the plaint filed by the petitioner and the application under Section 144(2) Cr.P.C. filed by the plaintiff may lay down wrong flat number; but they cannot be taken as correct ones. The original papers must contain the correct flat number otherwise those papers might not have been entertained by the concerned authority on the basis of the objection by the defendant / petitioner herein. Therefore, it is observed that the orders passed or impugned relates to the premises situated at the 2nd floor flat of the premises at 95/1, Ballygunge Place and this flat shall be described hereinafter as the premises in suit.
Mr. Banerjee has contended that the surrender of tenancy can be effected by express surrender in writing or implied surrender by operation of law as per provision of Section 111 of the Transfer of Property Act. In the instant case, if it is considered as express surrender, then according to the provisions of Section 111 of the Transfer of Property Act, it must be in writing. But in the instant case, there is no written document in support of the claim of the plaintiff on express surrender. There is no implied surrender according to the provisions of Section 111(e) of the Transfer of Property Act. So, the surrender of tenancy on behalf of the tenant / petitioner herein has not been proved. He also contends that a Commission was held to know the actual possession of the premises in suit by an order of the 7 Division Bench of this Hon'ble Court and the learned Commissioner, on inspection, found that the grill gate was under lock and key put by the plaintiff / landlord but the inner wooden door meant for entry in the premises in suit was opened by the tenant / petitioner herein with the key under his possession. This fact proves that the tenant did not surrender the tenancy, but he could not enter into the premises in suit inasmuch as the landlord had made obstruction for ingress and egress by putting a lock in the grill just before the entrance wooden door of the premises in suit. He also submits that as per inspection report, it is not the situation that small unused materials had been left by the tenant in the premises in suit at the time of alleged delivery of possession but the inspection report reveals that the materials essential for stay had been left in the premises in suit and those materials were full of dirty because of the fact that the tenant could not make entry in his tenanted premises. Such facts suggest that the tenant / petitioner herein is in possession of the premises in suit and the surrender of the tenancy had not taken place at all as alleged by the plaintiff / landlord.
Mr. Banerjee has also referred to the 144(2) Cr.P.C. proceedings lodged by the tenant and by the plaintiff / opposite party separately. The 144(2) Cr.P.C. proceeding lodged by the tenant is appearing at page no.53 of the application and from such paper, it reveals that the concerned P.S. had been directed to see 8 that the petitioner was not evicted from the premises in suit by the opposite parties without due process of law and that the ingress and egress of the petitioner were in no way obstructed by the opposite parties. So, this order favours the contention of the petitioner. This application lays down that the petitioner is a tenant in respect of the 2nd Floor of the premises whereas the plaintiff / opposite party herein instituted a 144(2) proceeding before the same Executive Magistrate as appearing at page no.117 wherefrom it would reveal that the plaintiff had mentioned that the defendant was a tenant in respect of 3rd floor flat of the holding at 95/1, Ballygunge place. So, the schedule of the property as described by the plaintiff / landlord in his application under Section 144(2) of the Cr.P.C. was not correct at all and the Executive Magistrate passed the orders upon the O.C. of the concerned P.S. to see that illegal encroachment would not be done without due process of law. Therefore, this order on the basis of the application under Section 144(2) of the Cr.P.C. cannot be taken into consideration. Thus, Mr. Banerjee submits that the petitioner had to leave the premises in suit for treatment of his mother. Mere non-possession of the suit premises in suit under above circumstances does not mean the surrender of his tenancy. In support of his contention, Mr. Banerjee has referred to the decisions of AIR 1974 Kerala 132, the decision of Indian Cable Company Ltd. v. Smt. Sumitra Chakraborty reported in 9 AIR 1985 Calcutta 248, the decision of Samir Sobhan Sanyal v. Tracks Trade Pvt. Ltd. & ors. reported in AIR 1996 SC 2102 and (2001)1 SCC 564 particularly the paragraph no.20. I am discussing these decisions later on.
Mr. Banerjee has also submitted that according to Section 19(2) of the West Bengal Premises Tenancy Act, 1956, the express surrender is to be proved. He has also contended that if the condition of express surrender is not engraved in the agreement of tenancy according to the decision of (2001)1 SCC 564 particularly paragraph no.20, the original provision of the Transfer of Property Act will govern. In the instant case, there is no scope of express surrender. So the tenancy continues, ultimately, Mr. Banerjee has submitted that the report of the learned Commissioner reveals that the husband of the plaintiff produced the key of the main entrance of the flat and opened the lock and the defendant produced the key of the wooden door of the main entrance. The unlocking of the main entrance would not enable the entry in the premises in suit until the wooden door of the main entrance was opened. The Special Officer found many articles, such as, electric fittings, almirah, kitchen utensils, gazettes, beddings etc. which could not be described as some scattered articles. Therefore, the tenancy subsists. So, the defendant may be permitted to open the premises in suit flat by reversing the order of status quo.
10
Mr. Banerjee has also contended that the defendant has been paying rents for the premises in suit all along and two copies of the challans have been filed in the application appearing at page no.47 & 48. Thereafter, the application was filed. The defendant / petitioner is still paying the current rents. Thus, Mr. Banerjee submits that such facts have proved that the petitioner is still in possession of the premises in suit. Under the circumstances, the order of status quo as passed by the learned Trial Judge and affirmed by the Lower Appellate Court cannot be supported. Thus, he concludes that the impugned order should be set aside and the mandatory injunction as prayed for by the defendant should be granted.
On the other hand, Mr. S.P. Roychowdhury, learned Senior Advocate appearing on behalf of the opposite party has vehemently opposed the submission of Mr. B.K. Banerjee and he has shown the materials in support of the fact that the defendant / petitioner herein was a tenant in respect of the premises in suit. Since of an earlier observation has been made by this Bench in this regard establishing the identity of the premises in suit, no further submissions of Mr. Roychowdhury relating to the identity of the premises in suit are recorded herein.
Mr. Roychowdhury has contended that in the instant case as per materials on record, the defendant had left the premises in suit in July 1998 and the plaintiff put the same premises in suit 11 under his lock on the entrance gate at that time and since then the premises in suit is in possession of the plaintiff. He has also submitted that such fact is fortified by the fact that the electric meter of the premises in suit stood in the name of the tenant and on his surrender, he withdrew the deposit money and then it was again re-connected in the name of the husband of the plaintiff. Had the defendant been outside from the premises in suit, the defendant could have taken steps for restoration of electricity in the tenanted premises immediately thereafter. He did not do so. So far as deposit of rents, the petitioner has filed only two xerox copies of the challans. But there is no indication that he had deposited the rents since July 1998. As to non-availability of the document related to surrender, he has contended that since there was a good relationship between the parties to the suit, the parties did not consider that the surrender should be in writing.
Mr. Roychowdhury has also contended that at the time of inspection, it was found that the entire room was full of dirty signifying that no person resided in the premises in suit for a long period and in fact, only nominal articles had been left in the premises in suit. Since, those articles were not removed by the tenant as per verbal agreement, the landlady was compelled to file the suit for the reliefs already stated. The mother and sister also resided in the premises in suit but when the defendant 12 was transferred elsewhere, he shifted his mother and brother to his own house and he himself began to reside elsewhere for gains after surrendering the tenancy in question.
Mr. Roychowdhury has also submitted that since both the courts below have arrived at concurrent observations on the basis of materials on record, this Hon'ble Court in exercising the revisional jurisdiction should not interfered with the concurrent findings of the courts below. Thus, he supports the judgment passed by the impugned order.
Now, I am discussing the decisions referred to by Mr. B.K. Banerjee and Mr. Roychowdhury.
By referring to the decision of Venkita Pathi naidu v. Sethu Udayar & ors. reported in AIR 1974 Kerala 132, Mr. Banerjee submits that mere abandonment by a tenany of his possession will not amount to surrender. The abandonment must also be accompanied by acceptance on the part of the land. Even subsequent acceptance would be sufficient. So, the tenancy continues and the petitioner is entitled to get possession.
Mr. Banerjee has also referred to the decision of Indian Cable Company Ltd. v. Smt. Sumitra Chakraborty reported in AIR 1985 Calcutta 248 and thus, he submits that since there was no proof of express surrender as provided in Section 111 of the Transfer of Property Act and the tenant paid rent, according to 13 this decision, the mandatory injunction could well be granted on an interlocutory application.
By referring to the decision of Samir Sobhan Sanyal v. Tracks Trade Pvt. Ltd. & ors. reported in AIR 1996 SC 2102, Mr. Banerjee has submitted that if a person is unlawfully dispossessed from the premises in suit, appropriate orders may be passed for restoration of the possession. The Court cannot blink at their unlawful conduct to dispossess the appellant from demised property and would say that the status quo be maintained.
Mr. Banerjee has also referred to the decision of Vannattankandy Ibrayi v. Kunhabdulla Hajee reported in (2001) 1 SCC 564 particularly the paragraph no.20 and thus, he submits that if the tenant leaves the premises without any intention to terminate the tenancy and if he left certain materials essential for the livelihood, such conduct does not amount to termination of tenancy and it should be treated that the tenancy exists. So, the tenancy right of the petitioner does not stand as extinguished and the petitioner is, therefore, entitled to get the mandatory order of injunction.
Mr. Banerjee has also referred to the decision of Sandhya Das (Khan) & ors. v. Manik Banik & ors. reported in 2011(2) CLJ (Cal) 1 and thus, he submits that in order to consider the prayer for temporary injunction, the learned Trial Judge as well as the First Appellate Court must consider the three basic ingredients as to 14 prima facie case, balance of convenience and inconvenience and also suffering irreparable loss. But, in the instant case, by the impugned order, nothing has been discussed. This decision was passed by a Single Bench of this Hon'ble Court (Hon'ble Mr. Justice Jyotirmay Bhattacharya).
Then, Mr. Banerjee has referred to the decision of Unity Realty & Developers Ltd. v. Shri Amit Kumar Mitra & ors. reported in 2010(1) CLJ(Cal) 229 passed by a Division Bench and thus, he submits that in order to test whether the order of injunction should be granted or not, the three basic tests as noted in the aforesaid Single Bench Decision Sandhya Das (supra) should also be considered. Mr. Banerjee has drawn my attention to the ratio of the said Division Bench to the following effect:-
"HELD: It is settled law that grant or refusal of temporary injunction is coverned by well-established principles, that is, whether the plaintiff has made out a prima facie case, whether the balance of convenience is in favour of the plaintiff and, lastly, whether the plaintiff would suffer irreparable loss and injury. To get an order of temporary injunction, while the first condition is sine qua non, the plaintiff is, also to establish two other conditions conjunctively. Mere proof of any one of the said three conditions does no entitle a petitioner to get an order of temporary injunction. When none of the three conditions is 15 fulfilled, the application for temporary injunction is liable to be rejected."
Mr. B.K. Banerjee has contended that the plaintiff has failed to show prima facie case. He has also contended that if mandatory injunction as prayed for by the defendant is not granted, the premises in suit would remain as it is and in that case, it is the petitioner who would suffer loss because he is paying rents for the premises in suit but he is not getting the benefits of enjoyment. He has also contended that in view of the ratio of the last two decisions, the learned Trial judge has not decided at all as to the prima facie case, balance of convenience and inconvenience and whether the petitioner would suffer irreparable loss, if his prayer for temporary injunction is not granted. In the instant case, it is the defendant who is to suffer irreparable loss if the order of status quo is continued. The learned First Appellate Court did not consider such settled law at all and simply endorsed the order of status quo as passed by the learned Trial Judge. Such an order cannot be supported. Thus, the learned Appellate Court has failed to exercise the jurisdiction vested in him and he has committed errors of law in passing the impugned order. So, the appropriate order of mandatory injunction should be passed.
16
On the other hand, Mr. Roychowdhury has referred to the decision of The Municipal Corporation of Delhi v. Suresh Chandra Jaipuria & anr. reported in AIR 1976 SC 2621 particularly the Head Note - 'B' and submits that the concurrent findings of the courts below to the effect that the parties should be directed to maintain status quo in respect of the premises in suit should not be disturbed.
Mr. Roychowdhury has also referred to the decision of The Managing Director (MIG) Hindustan Aeronautics Ltd. & anr. Balanagar v. Ajit Prasad Tarway reported in (1972) 3 SCC 195 and thus, he submits that the High Court can interfere only if the First Appellate Court acts illegally or commits any material irregularity. From the impugned order, it does not appear that the First Appellate Court has acted illegally or with material irregularity. So, he submits that there is no scope of interference with the impugned order.
Having considered the submissions of the learned Advocates of both the sides and on perusal of the materials on record and the decisions referred to earlier, I find that in the instant case, the plaintiff has, prima facie, shown that he put the lock at the outer entrance of the premises in suit for a considerable time i.e. since July 1998 to 2004. The defendant / petitioner herein did not take any action or try to open the lock for ingress to and egress from the premises in suit till 2004. Only nominal 17 materials which could be spared by the ordinary middle class people at any time had been left at premises in suit and the defendant did not bother to get entry in the premises in suit till 2004. It is only at the time when the plaintiff filed the suit for mandatory injunction, took steps before the police station concern and filed 144(2) Cr.P.C. case, the defendant woke up and he defended his stand on the grounds stated. Then he filed a counter 144(2) Cr.P.C. case against the plaintiff. At present, there is no documentary evidence that the defendant had tendered rent or deposited with the Rent Controller all along since July 1998. At the time of argument, learned Advocate for the petitioner has submitted that those rent receipts and the telephone bills are lying at the premises in suit. Possibly, this may not be the fact on the ground that had it been so, the petitioner would have prayed for searching out those documents for making exhibit before the Trial Court to show his bona fide claim of possession over the premises in suit. He did not take any such measures.
The question whether there was any good relationship between the parties before the institution of the suit is a matter of evidence to be recorded afterwards. So, unless and until, evidence is recorded, nothing could be decided in this regard. If there was a good relationship between the parties, it might be the situation as claimed by the plaintiff that the defendant took away 18 almost all the costly materials but left certain articles which could be spared by the middle class family at any time with intention to take those materials afterwards. As to putting of locks by the respective parties as indicated above is a matter of evidence and unless evidence is tendered by the parties, the proper appreciation of the situation may not be done. From the materials tendered by the defendant, it appears that he paid rents for the telephone bills in respect of the meter standing in his name for two or three occasions. The land telephone stands in the name of the defendant and so he is bound to pay the charges for consumption. Otherwise, he may have to face difficulties subsequently, if he wants to get re-connection of the same afterwards. As per report at present, there is no telephone connection i.e. the telephone is dead.
The plaintiff filed the suit and the 144(2) Cr.P.C. proceeding mentioning the address of the defendant at 87, Shakespeare Sarani, Kolkata-700016 and summons was served at that address. There is no electric connection, telephone connection and all the articles were full of dirty signifying that none resided in the remises in suit for long time prior to the date of inspection. The defendant did not state the date of dispossession although he has claimed the relief of mandatory injunction. It is not the case of the defendant that he had been dispossessed immediately before or after the institution of the suit. He has 19 sought for mandatory relief when the plaintiff took some positive steps against him.
Under the above facts and circumstances, I am of the view that the plaintiff has shown, prima facie, case to go for trial and unless and until, evidence is recorded, it is difficult to adjudicate the matter in dispute. The defendant is, prima facie, out of possession of the premises since 1998 and so, if he is kept out of possession sometime more till the disposal of the suit, I think he would not suffer any irreparable loss because he has other accommodation in a good locality of Kolkata, namely, at 87, Shakespeare Sarani. He has also other accommodation at Barasat which is not far away from Kolkata. Therefore, the defendant will not suffer irreparable loss if mandatory injunction is not granted in his favour.
On the other hand, if the order of status quo is maintained as passed by both the Courts below, I am of the view that the plaintiff would not suffer irreparable loss. The balance of convenience and inconvenience in maintaining the order status quo lies in favour of the plaintiff and not in favour of the defendant / petitioner herein inasmuch as the plaintiff is, prima facie, controlling the possession of the premises in suit since July 1998 by putting locks at the outer door of the premises in suit. Therefore, the balance of convenience in granting injunction in the form of status quo lies in favour of the plaintiff. If the 20 injunction in the form of status quo is not maintained, it is the plaintiff who would suffer. So if it is withdrawn, it is the plaintiff who would be put into in convenient position. The object of granting injunction is to keep the suit property in status quo position during the pendency of the suit.
On the basis of the materials on record, the learned First Appellate Court did not interfere with the order of status quo as passed by the learned Trial Judge. The learned First Appellate Court has given reasons in support of his conclusion. Since both the courts below have arrived at concurrent findings to the effect that the parties should be directed to maintain the order of status quo, I am of the view that according to the decisions of The Municipal Corporation of Delhi v. Suresh Chandra Jaipuria & anr. reported in AIR 1976 SC 2621 and the decision of The Managing Director (MIG) Hindustan Aeronautics Ltd. & anr. Balanagar v. Ajit Prasad Tarway reported in (1972) 3 SCC 195, this Court should not interfere with the findings of the learned First Appellate Court. The learned First Appellate Court has not committed errors of law in maintaining the order of status quo. I am of the view that the order impugned should be maintained and the learned Trial Judge should be directed to expedite the disposal of the suit.
In that view of the matter, the revisional application fails to succeed. It is, therefore, dismissed.
21
The learned Trial Judge is directed to dispose of the suit within six months from the first date to be fixed for peremptory hearing of the suit.
It is also recorded that the observations made in this revision are for the purpose of the disposal of the application. The learned Trial Judge shall dispose of the suit on the basis of the evidence on record.
Considering the circumstances, there will be no order as to costs.
Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.
(Prasenjit Mandal, J.) The original record to be sent down to the learned Trial Judge at once.
(Prasenjit Mandal, J.)