Calcutta High Court
Spandan Diagnostic & Research Centre ... vs Shri Ritendra Nath Ghose & Ors. on 8 December, 1999
Equivalent citations: (2000)2CALLT83(HC)
Author: S.B. Sinha
Bench: Satyabrata Sinha
JUDGMENT S.B. Sinha, J.
1. This appeal is directed against a Judgment and Order dated 11-5-99 passed by Shri B. Das, Civil Judge, Senior Division, 1st Court, Midnapore In Other Suit No. 57 of 1999 whereby and whereunder he allowed the application for injunction filed by the Plaintiff-Respondent herein.
2. The basic fact of the matter is not In dispute. In a suit between Rathindra Nath Ghosh (sic) and Bratindra Nath Ghosh, the predecessors-In-interest of the Plaintiff and the Defendants--Respondents, a compromise was entered Into which having been recorded, a consent decree was passed 35-5-89 In J.S. No. 137 of 1981. The compromise petition which formed part of decree contained the following stipulation:--
"The dwelling and adjoining land In front of homestead obtained by the parties on which they live, If they like to sell that or any part of that, then they have to inform other side by notice, obtaining the notice If a party is Incapable to buy that then the said property can be transferred to other."
3. Admittedly no Individual notice was given pursuant to the aforementioned agreement to the plain tiff-respondent but an advertisement was Issued In Ananda Bazar Patriaka to the effect that the defendant No. 1 intendes to sell the said property. Thereafter, two registered deeds of sale were executed by Bratindra Nath Ghosh in favour of the appellant herein on or about 20.5.98.
4. The first deed of sale contained the following stipulation:--
"Rathindra Nath Ghosh as plaintiff filed Partition Suit No. 137 In the Court of the 1st sub-Judge, Midnapore In the year 1981 for convenience of our possession and during the pendency of the said suit we, all the parties, for making amicable settlement, filed a Solenama on 5.10.1983 and In view of the said Solenama, Final Decree was passed by the Court on 30.11.1984 and according to the said decree we, the parties to the aforesaid suit, acquired the properties allotted to us. I, the vendor, acquired the properties described In Schedule (Kha) of the said Solenama in 16as. and accordingly the properties described In the schedule below along with the other properties were acquired by me in 16as."; and
5. In the other deed of sale the following stipulations were made:--
"Rathindranath Ghosh filed a partition suit being No. T.S 137/1981 in the Court of the learned first sub-Judge, Midnapore, for the facility of possession and use, while the suit was going on, we the plaintiff and the defendants having filed a deed of settlement on 5.10.1983, on mutual partition, the learned Court passed a decree according to the deed of settlement on 30.11.1984 and we have taken possession of the respective shares received by us and I, the vendor have received the property mentioned in schedule (kha) and In the schedule below alone with other property, transferable, in I/- (sixteen annas) ownership and possession, without the objection or interference of others and am conducting my right etc. and having exercised my right over the road or passage, drainage etc. and I have had my name recorded for the current revisional survey In accordance to the provisions of the landlord, the W.B. Land Reforms Act and by having a separate holding made in my own name, am paying the rent and municipal taxes etc. every year and am obtaining the receipts thereof.
At present a lot of money is required to repair my residential house that is broken down and descript For that reason I took a decision to construct a proper and sound building by selling the same and having expressed my decision to sell the same to my brothers and wanting to sell It to them, they were not agreeable to purchase the same, so I having advertised for sale everywhere."
6. It is, thus, not in dispute that the appellant herein was a purchaser with notice of the aforementioned stipulations in the compromise.
7. Mr. S.P Roychowdhury, the learned senior counsel appearing on behalf of the appellants submitted that the appellants herein had acquired the properly to run a Diagnostic Centre and for that purpose has taken advance from the financial Institution. The learned counsel submits that In this situation his client Is agreeable to give an undertaking to the effect that In the event the suit Is dismissed, his client will pull down the building and/ or will not claim any equity in relation thereto. It was further submitted that keeping in view the facts and circumstances of this case the Court ought not to have granted Injunction.
8. Mr. Sudhish Dasgupta, the learned senior counsel, appearing on behalf of the respondents submits that it is the specific case of the Plaintiff where the appellant had clear notice of the right of pre-emption made In favour of the plaintiff-respondents by reason of the aforementioned compromise decree. The learned counsel submits that the learned trial Judge must be held to have acted correctly In passing the order of Injunction. In support of the said contention strong reliance has been placed on Israil and Ors. v. Samser Rahman & Ors. reported In ILR 41 Cal 47 and Gangubat Babhja Chaudhary and Ors. v. Sitaram Bhalchandra Sukhtankar and Ors. reported In . As regard notice It was submitted that when an Individual notice is required to be given, a public notice does not serve the purpose and In support of the said contention reliance has been placed on Ram Baron Prasad v. Ram Mohit Hazra & Ors. reported In . It was also submitted that the appellant has already mortgaged the properties In favour of the financial Institution and as such question of giving any undertaking does not arise.
9. The learned trial Judge in the impugned judgment has dealt with the matter in great details.
10. The plaintiff In the suit claimed, Inter alia, for the following reliefs:--
"(a) For declaration that they have right of pre-emption of the properties described in Schedules 'A' and 'B' below;
(b) For an order of sale of the properties described in schedules 'A' and 'B' below upto the plaintiffs by the defendants Nos. 1 and 2 after ascertaining appropriate valuation,"
11. It Is one of those cases where the Plaintiff had clearly established prime facie case In his favour In so far as he has not only been able to show that a right of pre-emption existed in his favour but has also been able to show that he had not been given any separate notice to which he was enlisted to In terms of the Compromise Decree.
12. There cannot be any doubt whatsoever that a discretionary relief has to be exercised by the court depending upon the facts situation of each case.
13. In Regional Manager v. Pawan Kumar Dubey, , It has been held :--
"It is the rule deducible from the application of law to the facts and circumstances of a case which constitutes Its ratio decidendi and not some conclusion based upon facts which may appear to be similar. One additional or different fact can make a world of different between conclusions In two cases even when the same principles are applied In each case to similar facts."
14. The appellant herein Itself has alleged that it had taken advances from the financial Institution. This Court can take judicial notice of the fact that such advances are granted upon creating charge on the properties and, thus, It would not be appropriate for this Court to accept the undertakings sought to be given by the appellant herein without such change had been created by reason of there being anything on records that no stipulations made In the agreement entered Into by and between the plaintiff and the financial Institutions.
15. In Israil and Ors. v. Samser Rahman & Ors. reported ILR 41 Cal 47, the law Is stated In the following terms:--
"In this connection, reference may be made to the Judgment of Sir George Russel In the case of Aynsley v. Glover (1874 LB 18 Eg. 514) where that learned Judge observed as follows:
'At all events, this being an Interlocutory application, let me continue my building and I will undertake to pull down If the Court shall so think fit. That Is a very specious argument to address to the Court, but one must have regard to the effect of allowing such a proceeding. Supposing a defendant erects a building at great cost, when he comes to the hearing, he will say to the Court : Compare the Injury to me, In pulling down the building with the Injury to the plaintiff In allowing the building to remain. Ought or ought not the Court to give weight to such a representation? I think upon this point the observations of Vice-Chancellor Kindersley In the case of Curriers' Company v. Corbett (1865)2 Dr. & Sm. 35 (360), are very Important. That Vice-Chancellor says: 'If the defendants' buildings had not been completed, there would have been ground for Interference by injunction; but as they have been completed, the question Is, whether the Court ought to or would order the pulling down of the building or give some compensation In damages. The defendants' new buildings are of considerable magnitude and Importance, while the two houses of the plaintiffs are comparatively small value and Importance; and ft has been decided that In such a case the Court will not as a matter of course order the defendant to pull down his new buildings but will give to the party Injured by the erection of those buildings, compensation in damages.' It appears to me that this Is precisely one of such cases. Consequently the learned Vice-Chancellor considered that, the buildings being erected, the comparative values of the defendants' buildings and the plaintiffs were sufficient to induce him to refrain from granting an Injunction In a case where, if the buildings had not been erected, he would have granted the Injunction. If that Is so, and If those considerations are to weigh with the Court upon the question of damages or Injunction, I ought not to allow the defendant to proceed with his building, which will put him in such an advantageous position as regards the plaintiffs when the case comes to a hearing." To the same effect Is the decision in Newson v. Ponder, (1884. LB 27 CLD 43. In the case before us, therefore, prima facie, the defendants should not be allowed to proceed to complete the building which they have erected. But, the case for the plaintiffs is materially strengthened when we bear In mind the conduct of the defendants."
16. The said decision still holds the field.
17. In Dalpat Kumar & Anr. v. Prahald Singh & Ors., reported In upon which strong reliance has been placed by Mr. Roychowdhury, The apex Court was concerned with a different fact situation. In that case existence of prime facie case and balance of convenience was not found In favour of the Plaintiff. The Apex Court held :--
"The phrases 'prime facie case', 'balance of convenience' and 'irreparable loss" are not rhetoric phrases for incatation, but words of width and elasticity, to meet myriad situations presented by man's Ingenuity In given facts and circumstances, but always is hedged with sound exercise of Judicial discretion to meet the ends of Justice. The facts are eloquent and speak for themselves. It Is well high impossible to find from facts prime facie case and balance of convenience. The respondents can be adequately compensated on their success."
18. In Gangubai Babiya Chaudhory & Ors. v. Sitaram Bhalchandra Sukhtankar & Ors. reported In , the apex has also stated the law In the following terms :
"Having given the matter our anxious consideration, we are satisfied that this is not a case In which Interim injunction could be refused. Similarly, we are of the opinion that If respondents are allowed to put up construction by the use of the F.S.I, for the whole of the land including the land Involved In dispute, the situation may become irreversible by the time the dispute Is decided and would preclude fair and just decision of the matter. If on the contrary Injunction is granted as prayed for the respondents are not likely to be Inconvenienced because they are In possession of about 9,000 sq. metres of land on which they can put up construction."
19. As Indicated hereinbefore. In this case the appellant had purchased the property with notice and as such In the event the plaintiff is granted the right to make construction, it may claim equity in Its favour at the time of grant of decree and in this situation we are of the opinion that It Is not a fit case where this Court should interfere with the discretion exercised by the learned trial Judge. It Is now well known that the appeal Court normally should not interfere with the discretion exercised by the trial Court only when the Judgment it is not correct but should interfere only when it is clearly wrong. See Gujarat Steel Tubes Ltd. etc. v. Gujarat Steel Tubes Mazdoor Sabha & Ors., reported In .
20. However, In this case the plaintiff should be put to certain terms keeping In view the nature of the suit. The Plaintiff Is, therefore, directed to deposit the amount of consideration covered by the aforementioned two deeds of sale dated 27-4-98 by 10.1.1000.
21. However, in the fitness of things the hearing of the suit should be expedited. We, therefore, direct the learned Court below to dispose of the suit expeditiously and not later than six months from the date of communication of this order.
For the reasons aforementioned, this appeal Is dismissed with the aforementioned mod ideations and In the facts and circumstances of this case there Will be no order as to costs.
M.H.S. Ansari, J.
I agree.
22. Appeal dismissed