Calcutta High Court (Appellete Side)
Anandlok Welfare Association vs M/S City Enclave Private Limited on 27 November, 2019
Author: Sabyasachi Bhattacharyya
Bench: Sabyasachi Bhattacharyya
In the High Court at Calcutta
Civil Revisional Jurisdiction
Appellate Side
The Hon'ble Justice Sabyasachi Bhattacharyya
C.O. No. 3384 of 2019
Anandlok Welfare Association
Vs.
M/s City Enclave Private Limited
For the petitioner : Mr. Shaktinath Mukherjee,
Mr. Aniruddha Chatterjee,
Mr. Sharanya Chatterjee,
Mr. Shrijeeb Biswas
For the opposite party : Mr. Anindya Kumar Mitra,
Mr. Abhrajit Mitra,
Mr. Soumya Roychowdhury,
Mr. S. Mukherjee,
Mr. Satadeep Bhattacharyya,
Mr. Awani Kumar Roy,
Mr. Surajit Biswas
Hearing concluded on : 13.11.2019
Judgment on : 27.11.2019
Sabyasachi Bhattacharyya, J.:‐
1.The petitioner has challenged an order whereby the appellate court reversed an order of ad interim injunction granted by the trial court restraining the defendant/opposite party from making any construction over the suit property and also restraining the defendant/opposite party and its men and agents from creating any obstruction to the plaintiff/petitioner and its office bearers from carrying out necessary repair work and maintenance work regarding supply of water, drainage and sewerage connection for a limited period.
2. The matter arises from a suit, bearing Title Suit No. 221 of 2018, filed by the petitioner, inter alia, for declaration that the members of the petitioner‐ association have unfettered right of car parking and other amenities like water supply, drainage, sewerage, deep tube well and electricity over the suit property, for declaration that the petitioner, being an association of flat owners, has every right to carry out necessary repair work and maintenance of water supply, drainage, sewerage connection and deep tube well at the suit property without the intervention of the defendant and for consequential reliefs.
3. The case made out by the plaintiff/petitioner is that the petitioner is an association entrusted to look after and maintain the entire building and the car parking spaces, lobby, staircase etc, including the allegedly open car parking space in the northern front portion of the building 'Anandalok' at 227, Acharya Jagadish Chandra Bose Road, Kolkata - 700 020. The petitioner claims to represent its members, who are flat‐owners in respect of the said building adjacent to the suit premises, which is comprised of a 700 sq. mt. vacant space. It has been urged in the suit that initially one Bikash Chandra Sinha was the original owner of the entire property and granted lease for a period of 99 years in favour of Smt. Sarojini Goswami by a registered deed of lease dated May 18, 1974. During subsistence of the said lease, the owner Bikash Chandra Sinha sold the said premises to M/s Jenny Christensen (Services Apartments) Limited by a registered deed of conveyance dated July 17, 1985. It is alleged that the lessee Sarojini Goswami had surrendered the lease in favour of the erstwhile lessor/original owner Bikash Chandra Sinha on October 17, 1985 and had confirmed the aforesaid sale by being a confirming party in the deed of conveyance itself.
4. M/s Jenny Christensen obtained a sanction plan from the Kolkata Municipal Corporation (KMC) and constructed, according to the petitioner, a building, comprised of basement, ground floor and five stories above, partly residential and partly commercial in nature, along with designated covered and open car parking spaces.
5. It is alleged by the plaintiff/petitioner that the open space measuring about 700 square metres of land, situated in the front portion of the Anandlok Building situated at the premises indicated above, contains underneath drainage and sewerage connections. There is also a deep tube well located in the said portion, which is the present suit property, comprised of 700 square metres situated on the northern portion of the Anandlok Building.
6. The members of the petitioner‐association have been using the suit property for parking their respective cars uninterruptedly, according to the petitioner, for more than twenty years since purchase of their flats. Sewerage and drainage system of the building housing the flats also existed underneath the said suit property for as long.
7. It is next alleged that M/s Jenny Christensen illegally sold out the suit property to the defendant by virtue of a registered deed of conveyance dated March 14, 2008 at a shockingly low consideration, much below the prevalent market price.
8. Learned senior counsel for the petitioner argues that the suit property was an integral part of the building, comprised of the flats, and the sanctioned plan in respect of such building was obtained only upon compliance with the direction of the Urban Land Ceiling Authorities to keep such 700 square metres, being the suit property, as vacant land. It is further argued that the sanctioned plan of both the parties show the said 700 square metres as vacant land. In the petitioner's plan, the same is shown as a 'car parking space' whereas the same is not indicated in the plan sanctioned in favour of the opposite party.
9. Learned senior counsel for the petitioner argues that the sale of the said 700 square metres to the opposite party was illegal, since the construction of the 'Anandalok' building on the property was subject to the Urban Ceiling clearance as well as KMC Building Rules mandating the concerned 700 square metres to be kept vacant, as land appurtenant to the building. It is argued that the said suit property of 700 square metres is an integral part of the building/premises, on the basis of which the sanction for the construction of the building was cleared by the authorities and cannot now be transferred in favour of third parties. Such sale deed, apart from being not binding on the petitioner and its members, is void, being against the law.
10. In this context, the petitioner relies on the provisions of Rules 20 (2) of Schedule XVI of the Calcutta Municipal Act, 1951 in respect of 50 percent covered area in relation to construction of buildings and Rule 22, pertaining to restrictions on parking spaces, under Schedule XVI of the 1951 Act.
11. Learned senior counsel for the petitioner also places reliance on the KMC Building Rules, 1990, in particular on Rules 53, 62 and 63 under Chapter IV of the said Rules, which was in force in the year 2008 when the opposite party purchased the property. The said Rules, it is submitted, provide for restrictions in respect of vacant spaces and parking areas.
12. Learned senior counsel also refers to the current Rule Nos. 61, 70 and 71 of the KMC Building Rules, 2009, which more elaborately clarify the position as to mandatory spaces being left open.
13. Learned senior counsel further relies on the Urban Land (Ceiling & Regulation) Act, 1976. Section 2(g)(i) describes 'land appurtenant', which includes vacant land, if retained.
14. Section 2(q)(ii) of the 1976 Act describes vacant land and Sections 4 and 5 of the said Act relate to the ceiling limit regarding vacant lands. Whereas the ceiling limit for an individual is 500 square metres, such ceiling for buildings (each of the buildings) is 500 square metres as far as vacant land is concerned.
15. It is next argued on behalf of the petitioner that a previous suit was filed by the petitioner primarily for specific performance of a contract for purchase of the present suit property, comprised of 700 square metres of open area, which was dismissed, which does not affect the present suit. First, the previous suit was based on a different right on the plinth of an agreement for sale, whereas the present rights claimed by the petitioner is on the basis of statutory bars to the sale of the vacant land comprised of 700 square metres to the opposite party, treating the same to be independent and separate from the building, hence void.
16. Secondly, the previous suit was based on the petitioner's agreement to purchase, which, even if failed, does not ipso facto validate the purchase of the opposite party, since the petitioner's members are the owners of the building to which the land comprised of the vacant space of 700 square metres is appurtenant. Therefore, it is argued, the petitioner's purchase of the flats themselves would be sufficient to retain control over the 700 square metres as a vacant space appurtenant to the building comprised of the flats, necessary to sustain the integrity of the building and the vacant space, which was the premise for grant of clearance by the Urban Land Ceiling Authorities.
17. The agreement to purchase the 700 square metres of open space, according to the petitioner, was valid and was entered into over and above the statutory bars pleaded in the instant suit. The petitioner's members, being the owners of the building jointly, were in any event entitled to purchase the vacant land in order to elevate their pre‐existing right on the said property under the law to a higher right of ownership, since a purchase of the said 700 square metres by the petitioner's members would retain the integrity of the vacant space as a part of the building, as opposed to transfer to an outsider.
18. However, the opposite party being an outsider, a sale of the said vacant land to the opposite party by segregating it from the building would be illegal, since the vacant space had to be kept appurtenant to the building, both as per the Urban Land (Ceiling & Regulations) Act, 1976 and the KMC Building Rules, both of 1990 and 2009, and the retention of the same was the very basis of the sanction granted for construction of the building‐in‐question.
19. Learned senior counsel relies on a photocopy of a map, purportedly a sanctioned building plan, to substantiate his arguments.
20. The petitioner further relies on an affidavit filed by KMC officials at different junctures before this court in a writ petition, stating that the vacant suit land is a car parking space. Although the original sanctioned plan was never produced by the KMC, such affidavits supported the said statements on oath, being true to records as per the knowledge of the deponents in the respective affidavits, being officials of the KMC.
21. M/s Jenny Christensen has created complications by selling out the said vacant area to the opposite party, a stranger to the suit property and to the building.
22. Even as per the KMC Building Regulations, the land has to be kept vacant and open, independent of the 1976 Act. In this context, learned senior counsel relies on a judgment reported at (2003) 7 SCC 336 [State of Maharashtra and another vs. B.E. Billimoria and others] (paragraph no. 6).
23. It is argued on behalf of the petitioner that one Sanjay Singh is a common Director of one Neelambar Caterer and the present opposite party. Learned senior counsel relies on a list of companies annexed at page 266 of the present revisional application, which shows Sanjay as a Director of both the said companies. The said Sanjay Singh affirmed the plaint of a suit filed by Neelambar Caterer, wherein the present suit property of 700 square metres was admitted to be an open car parking space in the north of the building. The plaint of the said suit of Neelambar Caterer, giving rise to Title Suit No. 43 of 2003 before the Second Court of Civil Judge (Senior Division), at Alipore, is annexed at page 131 of the instant application under Article 227 of the Constitution of India. In the said suit, the present petitioner was arrayed as a proforma defendant and M/s Jenny Christensen was the principal defendant.
24. By relying on the present plaint, learned senior counsel for the petitioner argues that the prayer of the present suit revolves around declaration of title of the petitioner, relying on statutory bars, which are all in place for public benefit. The present claim, it is submitted, is not against the common vendor of the opposite party and the petitioner, as in the previous suit.
25. It is argued that the nature of declaration sought in the present suit automatically negates, if granted, the effect of the deed in favour of the opposite party, which, in any event, is not binding on the present petitioner and its members and is void in the eye of law.
26. Another practical difficulty pointed out by learned senior counsel for the petitioner is that the suit property contains a deep tube well and the sewerage system of the building owned by the members of the plaintiff‐association. Therefore, no construction is possible over the same without hampering the said sewerage systems and deep tube well. Learned senior counsel relies on receipts of water supply tax by the KMC, the photocopy of a purported sanctioned plan and the affidavits of KMC annexed to the present petition in support of such contention.
27. By placing reliance on the judgment reported at (2000) 2 CHN 856 [Jitesh Pandey vs. Smt. Urmilata Sinha & Ors.], it is argued that, in an appeal against an ex parte ad interim injunction order, the averments made in the injunction application have to be accepted. Although subsequently such law has been somewhat diluted, it is argued, there was no application under Order XLI Rule 27 in the appeal in which the impugned order was passed, to justify a deviation from Jitesh Pandey (supra).
28. Learned senior counsel for the petitioner next cites a judgment reported at AIR 1983 SC 742 [Gangubai Bablya Chaudhary and others vs. Sitaram Bhalchandra Sukhtankar and others], for the proposition that a construction, if allowed to be made, the situation will become irreversible.
29. As such, it is argued that the appellate court acted without jurisdiction in setting aside the ad interim order of injunction granted by the trial court.
30. Learned senior counsel for the opposite party begins his submissions by arguing that the plaintiff/petitioner has no locus standi to institute the present suit, being merely an association for the maintenance of the building‐in‐ question. The members of the plaintiff, at best, could have filed the suit in their individual capacities, subject to proving their ownership.
31. It is argued that the petitioner suppressed before the trial court the individual deeds of purchase of its members, which act of suppression entitled the opposite party to point out before the appellate court such suppressed documents, which are relevant for the adjudication of the prayer for injunction. The appellate court had power under Order XLI Rule 33 as well as Order XLI Rule 27(b) of the Code of Civil Procedure to look into such matters, particularly in view of the suppression of material facts by the plaintiff/petitioner in the trial court.
32. Learned senior counsel for the opposite party submits that the primary suppression was regarding the deeds of purchase of the individual members of the plaintiff‐association. Two such sample deeds were produced by the opposite party in the appellate court, which palpably show that not only was the suit property, comprised of 700 square metres vacant space, not purchased by the members of the plaintiff/petitioner, their purchase deeds specifically excluded such vacant space of 700 square metres.
33. It is further argued that the previous suit, filed by the petitioner, was not merely for specific performance of contract but a comprehensive suit, setting out the same causes of action and facts building up to the reliefs as in the present suit. The previous suit having been dismissed, even if for default, the petitioner is barred by law from filing the instant suit.
34. Moreover, it is argued that the claim of specific performance of an agreement for purchase, entered into by the petitioner for the suit property admitting someone else to be the owner, and that of title over the same, were contradictory to each other and mutually exclusive. As such, the appellate court was justified in setting aside the ad interim order of injunction granted by the trial court on the ground of non‐existence of a prima facie case.
35. It is further submitted that the car parking spaces alleged by the plaintiff to be owned by its members, were limited in number and were predominantly situated at the basement, as evident from the plaintiff's own purported sanctioned plan.
36. The sanctioned plan of the plaintiff also shows that the construction adds up to less than eighteen metres in height, which makes Rule 20(1) of Schedule XVI of the Calcutta Municipal Act, 1951 applicable, that is mandating only one‐third space to be left vacant, as claimed by the petitioner in its earlier suit, contrary to the claim that fifty percent of the total area has to be left vacant, as pleaded in the present suit. The sanctioned plan of the petitioner also corroborates that one‐third of the total area was to be left open.
37. It is argued by learned Senior Counsel for the opposite party that no leave under Order II Rule 2 was sought in the previous suit of the petitioner. Hence, the present suit is not maintainable. It would be evident from the plaint of the previous suit of the plaintiff/petitioner that the 700 square metres, which is the subject‐matter of the present suit, was excluded from the purchase deeds of the members of the petitioner and that one‐third of the total space had to be kept vacant, as admitted in the previous suit itself.
38. The prayers and pleadings of the present suit are contrary to the own pleadings of the petitioner in its previous suit.
39. The plaintiff not only suppressed the plaint of the first suit in the trial court and the title deeds of the members of the plaintiff/petitioner while obtaining the ad interim injunction order, which entitled the opposite party to refer the same in the appellate court, the plaintiff/petitioner also suppressed a Division Bench judgment of this court, annexed at page 509 of the revisional application, which held that the plaintiff/petitioner had no right on the alleged car parking space.
40. Moreover, it is argued that the Urban Land Ceiling Authorities released the land‐in‐question in the year 2002 and as such, the alleged integrity of such vacant space with the apartment cannot be argued any more.
41. The Demolition Officer of the KMC held in an order that the 700 square metres region could not be a car parking space due to the 1976 Act. It was further held that the plaintiff's sanction plan did not tally with the KMC plan.
42. The Building Tribunal (in its order at page 449 of the present revisional application) categorically held that the Urban Land Ceiling Department released the 700 square metres space and as such no building Rule had been violated in the opposite party purchasing the same. Since, at the relevant juncture, the said land had been acquired by the Urban Land Ceiling Authorities, the alleged sanction plan of the petitioner, obtained during that period, was beyond the jurisdiction of the corporation to grant and as such, was an invalid plan as held by the tribunal, which was the competent authority in that regard.
43. The wall constructed by the opposite party was not a "building" as contemplated under Section 2(5) of the Kolkata Municipal Corporation Act, 1980, which was prevalent at the relevant juncture of consideration, and as such, the construction of the wall was held not to be barred by law. The previous sanctioned plan was virtually set aside, since at that relevant point of time the said space was under the Urban Land Ceiling Department (reference: pages 447 to 449 of the revisional application).
44. The opposite party produced a certified copy of the original sanctioned plan, which is the correct plan according to the opposite party and submits that the photocopy of the purported sanctioned plan annexed by the petitioner at page 275 and handed up to the court is fraudulent and not the actual plan.
45. Despite the executive engineer of the KMC and other officials of the KMC having affirmed affidavits stating that there was a car parking space on the suit property, the matter in which such affidavits were affirmed ultimately culminated in a verdict of the KMC authorities which was based on a report of an executive engineer, annexed at page 461 of the revisional application, which went unchallenged. The findings of the KMC on the basis of such executive engineer's report which have attained finality, all indicate that there was no parking space on the 700 square metre open land, which is the suit property.
46. It is further argued on behalf of the opposite party that the previous proceedings, including the prior suit for specific performance filed by the petitioner, show that the height of the constructed building is less than eighteen metres and as such one‐third open space of the total land would be sufficient as admitted at page 466 of the revisional application. At page 467, being a part of the previous plaint of the suit for specific performance filed by the petitioner, it was admitted that the 700 square metre comprised of the present subject‐matter of the suit, was under the Urban Land Ceiling Authorities Acquisition and the same was excluded. It is further argued that no document of substantive value has been produced to establish that a pipeline or tube well were installed and are running underneath and over the suit property. In the previous suit, the petitioner specifically claimed easement rights over the 700 square metre property as well as made an actionable claim on the purported agreement, which was sought to be specifically performed. Thus, the petitioner is now barred by estoppel from taking a contrary view that the opposite party has no right over the property.
47. Learned senior counsel appearing for the opposite party cites judgments reported at (2006) 7 SCC 756 [Jai Narain Parasrampuria (Dead) and others vs. Pushpa Devi Saraf and others] and (2007) 10 SCC 528 [Deewan Singh and others vs. Rejendra Pd. Ardevi and others] on the proposition of estoppel. The opposite party also cites a judgment reported at 2010(3) CHN (Cal) 755 [Sha‐San Infrastructures Pvt. Ltd. vs. Thakur Corner Byabsayee Kalyan Samity & Ors.] on the argument that the petitioner has no locus standi to file the suit, more so since the suit has not been filed in representative capacity.
48. It is further argued that the judgment of Jitesh Pandey (supra) was overruled in the judgment of The Bengal Club Ltd. vs. Susanta Kumar Chowdhary reported at AIR 2003 Cal 96. Moreover, learned senior counsel for the opposite party cites a judgment reported at (2015) 1 SCC 677 [Wadi vs. Amilal and others] for the proposition that, under Order XLI Rule 27(1)(b) of the Code of Civil Procedure, the appellate court can look into additional materials as well.
49. Learned senior counsel for the opposite party cites a judgment reported at (2013) 11 SCC 531 [Bhaskar Laxman Jadhav and others vs. Karamveer Kakasaheb Wagh Education Society and others] on the proposition that no order should be passed if the petitioner suppressed material facts.
50. In reply, learned senior counsel for the petitioner reiterates that the scope of the two suits filed by the petitioner are different. The previous suit was primarily based on an agreement between the vendor and the petitioner and was for specific performance of contract, whereas the present suit is on the basis of a right founded on the occupancy of the petitioner in the building adjacent to the suit property and is not based on specific performance but rather easement rights. The premise of the instant case is that the opposite party has not acquired any title in the suit property by virtue of the purported transfer deed in its favour which does not bind the petitioner in any event, since the said purported deed is in gross violation of the statutory provisions as indicated above in the petitioner's argument.
51. Learned senior counsel for the petitioner further replies to the allegation of the photocopy of the sanctioned plan, produced by the petitioner being fabricated by relying on the plaint filed by the Neelambar Caterer, of which Sanjay Singh, who is the common Director of the present opposite party and the said Neelambar Caterer, and has been signing documents on behalf of both, to show that the fact of the 700 square metre property being a car parking space was admitted in the suit. In the absence of any specific allegation of fraud at the behest of the petitioner as such, the court cannot consider the allegation of fraud at the ad interim injunction stage. In any event, it is reiterated that the KMC authorities, irrespective of the result of the previous writ petition, reiterated that the suit property was a car parking space. Moreover, it was land appurtenant to the building concerned, on the basis of the 1976 Act. As such, the right of enjoyment, which was further relied later on by the Urban Land Ceiling Authorities, of the petitioner was never affected.
52. As far as locus standi is concerned, the petitioner is a registered association entitled to sue and be sued on behalf of its members, which is evident from the memorandum of association at page 63 of the revisional application. Moreover, prayer G at page 40 of the plaint pertains to a leave being sought under Order I Rule 8 of the Code of Civil Procedure and as such does not debar the petitioner from filing the suit on behalf of its members as well.
53. It is submitted that an independent surveyor's report annexed at page 697 of the revisional application, shows not only the locus standi of the petitioner but that there is a tube well and water connection in the name of Anandlok which is a building regarding which the petitioner is in charge of maintenance. The said proposition is strengthened by the annexures at pages 255 and 258 of the revisional application. As such, it is argued that, since the previous suit was on a different footing claiming different rights, the same was not material for the decision in the present matter and as such, there was no suppression of any material fact in the context.
54. Learned senior counsel cites a judgment reported at AIR 1978 SC 1062 [Balai Chandra Hazra vs. Shewdhari Jadav] which is in the same line as Jitesh Pandey (supra), and argues that the same renders Bengal Club (supra) per incurium, since the proposition as to applicability of Order XLI Rule 33 of the Code of Civil Procedure was discussed in Balai Hazra but was not considered in Bengal Club (supra). As regards the applicability of Order XLI Rule 27(b) is concerned, even in such a case, the documents‐in‐question to be proved, which was not done formally in the present case at all. Hence, it is argued that the revisional application ought to be allowed.
55. As far as the argument of locus standi of the petitioner is concerned, the version of the opposite party is more acceptable, simply because the memorandum of association itself shows that it is only an association for maintenance of the property‐in‐question and not competent to sue on behalf of its members. The right claimed in the present suit, are prima facie the individual rights of the petitioner's members, who purchased flats in the building adjacent to the suit property. In the absence of any specific power being given to the petitioner, being an association and an independent juristic entity, the petitioner prima facie had no locus standi to file the suit. Moreover, although the prayer under Order I Rule 8 of the Code has been made in the plaint, no separate application has been filed for such leave, nor has any order been passed under the said provision as yet in the suit.
56. Even as per the documents produced by the opposite party in the appellate court, the members of the petitioner did not purchase the 700 square metre vacant space; rather, the said space was specifically excluded from the purchase deed. Although it may technically correct to argue that the opposite party had to prove the documents even under Order XLI Rule 27(1)(b) of the Code, the court could not shut its eyes to the said documents, since the veracity of those documents was not controverted as such and, in any event, the petitioner not merely suppressed those documents but failed to produce any document in support of its title in respect of the suit property in the trial court.
57. The plinth of the argument of the petitioner is a negative claim that the opposite party could not have purchased the suit property on two‐fold grounds: first, the said space was a land appurtenant to the Anandlok building occupied by the members of the petitioner and could not be segregated from the building by the sale, and secondly, the deep tube well and water supply as well drainage system of the Anandlok apartment ran underneath the suit property. However, even if the petitioner claims easement rights over the property‐in‐question by virtue of the sewerage system being situated thereunder, the same at best makes it a servient heritage of the Anandlok building, implicit in which pleading is the admission that the petitioner was not the owner of the 700 square metre vacant space.
58. In view of the previous suit of the petitioner having claimed such easement rights as well as specific performance, both of which reliefs were turned down, the petitioner is prima facie debarred from taking the contention again as to the petitioner having an easementary right over such property for the purpose of parking and/or because its drainage and sewerage system is running underneath the property.
59. That apart, since the purchase deed of the individual members of the petitioner specifically excluded the 700 square metre of property and there was nothing to prove as yet, on record, that the 700 square metre acquired land was appurtenant to the Anandlok building, the present petitioner does not have a right in praesenti to stake a claim over the suit property.
60. Moreover, the petitioner has not challenged, in the present suit, the sale deed in favour of the opposite party in respect of 700 square metre land, even by claiming that the said deed was not binding on the petitioner. In the absence of such a claim, the petitioner could not get an injunction merely on the basis of a negative declaration that the opposite party does not have a right on the suit property by virtue of the said deed.
61. There is no clear mention in the purchase deeds of the members of the plaintiff/petitioner as regards their having any parking space specifically over the suit property. Rather, in the plaint of the first suit, it was categorically mentioned in paragraph nos. 5 to 7 of such plaint, at page 462 of the revisional application, that the 700 square metre area was excluded from the purchase of the plaintiff's members and that one‐third of the total area was kept vacant. However, a contradictory claim of fifty percent vacant area has been made in the present suit, which belies the contentions of the petitioner. Even the purported sanctioned plan of the petitioner shows that construction of less than eighteen metres, invoking rule 20(i) of the 1951 Act, which provides for one‐third vacant space to be left, and not fifty percent as pleaded by the petitioner in the present suit.
62. In the absence any leave being sought under Order II Rule 2 of the Code of Civil Procedure in the previous suit, the present suit is also not maintainable.
63. This court cannot overlook the judgment of a division bench of this court annexed at page 509 which shows that no right of petitioner exists on the car parking space on the suit property. Although rendered in connection with a writ petition, the said decision affirmed the findings of the appropriate authorities being the KMC authorities and cannot be readily reopened without taking full‐fledged evidence.
64. As such, the suppression of the first suit becomes germane in the present context.
65. Apart from the above reasons, even from the disclosure of the petitioner's own plaint, two cardinal difficulties for the plaintiff/petitioner are apparent.
66. The petitioner does not have locus standi to file the suit on behalf of its members, which rights are based on the individual rights of such members on the basis of their separate purchase deeds. Secondly, no positive right of the petitioner or its members has been asserted in the present suit property and the suit, prima facie, is not maintainable merely on the basis of a negative declaration on certain vague legal bars, which are mixed questions of fact and law, and at best, can be proved on evidence.
67. In such view of the matter, the impugned order passed by the appellate court, setting aside the order of ad interim injunction granted by the trial court does not suffer from any infirmity or jurisdictional error. Accordingly, C.O. No. 3384 of 2019 is dismissed on contest, thereby affirming the order of the appellate court and directing the trial court to dispose of the injunction application pending before it, as expeditiously as possible, subject to the pleadings having been made in connection with the said injunction application, preferably within one working month from the date of communication of this order to the court below.
68. It is made clear that the observations made in the present order or in the order of either of the courts below shall not affect the trial court while finally deciding the injunction application and/or the suit itself. All findings rendered herein are tentative ones, merely for the purpose of deciding the petitioner's prayer for injunction at the ad interim stage in the suit.
69. There will be no order as to costs.
70. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities. ( Sabyasachi Bhattacharyya, J. )