Calcutta High Court (Appellete Side)
Haldiram Bhujiawala Ltd vs Jethmal Rajpurohit & Ors on 6 September, 2017
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
Present:
The Hon'ble Justice Jyotirmay Bhattacharya
AND
The Hon'ble Justice Shivakant Prasad
F.M.A. 1398 of 2016
with
CAN 3192 of 2016
with
CAN 11043 of 2016
Haldiram Bhujiawala Ltd.
versus
Jethmal Rajpurohit & Ors.
For the Plaintiff/Appellant : Mr. Saptangsu Basu, Sr.Adv.,
Mr. Sunil Singhania,
Mr. Kushal Chatterjee.
For the Defendant No.2/ : Mr. Subrata Roy Karmakar,
Respondent No.2 Mr. Manoj Kumar Bhattacharyya,
Mr. D. Nandy.
Heard On : 06-09-2017. Judgement On : 06-09-2017.
Jyotirmay Bhattacharya, J. : This first miscellaneous appeal is directed against an order being No.9 dated 19th March, 2016 passed by the learned Judge, XIIth Bench, City Civil Court at Calcutta in Title Suit No. 35259 of 2014 at the instance of the plaintiff/appellant.
By the impugned order, ad interim mandatory injunction was passed by the learned Trial Judge directing the plaintiff being the Director of Haldiram Bhujiawala Limited to immediately restore the possession of shop No. 09 at the ground floor of Holding No. 7, Jagmohan Mullick Lane, P.S. Posta, Kolkata-7 to the defendant Narayan Rajpurohit. The Officer-in-Charge of Posta Police Station was directed to take legal action against Prabhu Sankar Agarwal for forceful dispossession of the defendant Narayan Rajpurohit from the said shop and to restore possession of the said defendant Narayan Rajpurohit in the said shop forthwith. The plaintiff was directed to file objection against the defendant's application under Section 151 of the Civil Procedure Code positively by 5th May, 2016. Subsequently the date for filing affidavits by the respective parties was extended by the subsequent order passed by the learned Trial Judge on 21st March, 2016 vide order No. 10. The legality of both the orders passed by the learned Trial Judge is under challenge in this first miscellaneous appeal.
This first miscellaneous appeal was admitted for hearing on 19th April, 2016. After the appeal was admitted, an interim order was passed on an application filed by the appellant being CAN 3192 of 2016 whereby operation of the impugned order dated 19th March, 2016 was stayed until further order. The appellant was, however, restrained from parting with possession of the suit property and/or dealing with the said suit property with any stranger for a period of three weeks from the date of the order with liberty to mention for extension of interim order upon notice to the parties.
After the service was effected upon the respondents, an application was taken out by the defendant/respondent no.2 for vacating the interim order passed by this Court. The other respondents, in spite of service, do not appear to contest this appeal.
At the time when the respondent's application for vacating interim order was taken up for consideration, we were requested by the learned counsel appearing for the parties to dispose of the appeal itself on merit.
In the last hearing, a dispute cropped up between the parties as to whether the entire construction of the suit premises has been demolished or not. It was contended by the plaintiff/appellant that the roof of the suit premises has already collapsed and the plaintiff has obtained a sanction plan from the municipal authority for reconstruction of the roof.
We were also informed by Mr. Basu, learned senior counsel appearing for the plaintiff/appellant that even the doors and windows were also removed. Mr. Karmakar, learned advocate appearing for the defendant/respondent no.2 submitted that the entire construction has been demolished.
To resolve such dispute, we appointed Mr. Gopal Chandra Ghosh, learned advocate as Receiver over the suit property who after holding inspection at the locale submitted a report before this Court mentioning therein that the entire construction has been demolished and the front portion of the said construction is covered by plastic sheet up to above first floor level and three other sides are enclosed by walls of three other adjacent premises. It is also mentioned in the report that six pillars up to the height of 1.75 sq.ft. from the ground level have been constructed. It is also reported that the old construction does not exist at the locale.
Keeping in mind the aforesaid background, let us now consider the merit of the instant appeal in the facts of the instant case.
Admittedly one Chunilal Rajpurohit was a tenant in respect of the suit shop room measuring about 760 sq.ft. on the ground floor of the said premises. The said Chunilal Rajpurohit died leaving behind him three sons viz., Jethmal Rajpurohit, Narayan Rajpurohit and Mohan Rajpurohit and three daughters viz., Kamala Devi Rajpurohit, Geeta Devi Rajpurohit and Vimala Devi Rajpurohit. Mohan Rajpurohit being the son of Chunilal Rajpurohit died subsequently leaving two sons viz., Dharmendar Rajpurohit and Dablu Rajpurohit and one daughter viz., Gayatri Rajpurohit.
The plaintiff filed a suit for eviction of those tenants who inherited the said tenancy from Chunilal Rajpurohit as tenants in common. It is alleged in the plaint that during pendency of the suit, the legal heirs of Chunilal Rajpurohit executed a deed of surrender for surrendering their tenancy in respect of the suit premises. It is also alleged that on execution of the said deed of surrender, the plaintiff got possession of the suit property and since then, the plaintiff is possessing the suit property. The suit is still pending. Even after the alleged surrender was made, the plaintiff did not pray for dismissal of the suit or withdrawal of the suit.
In such a suit, the defendant no.2 viz., Narayan Rajpurohit filed an application under Section 151 of the Code of Civil Procedure praying for issuance of mandatory injunction directing the plaintiff to restore his possession in the suit property. He denied execution of the deed of surrender for surrendering his tenancy in favour of the plaintiff. He complained that he was forcefully dispossessed from the suit property by the plaintiff. An ad interim relief by way of injunction in similar term was also prayed for in the said application.
The learned Trial Judge passed an ad interim order of mandatory injunction by directing the plaintiff to restore the possession of the suit premises to the defendant no.2 as he was forcefully dispossessed from the suit property by the plaintiff. The Officer-in-Charge of the local police station was also directed to take step against the plaintiff for illegally and forcefully dispossessing the defendant no.2 from the suit premises. Direction was also given to the parties for filing affidavits in connection with the said suit. The legality of the said order is under challenge.
Though it is true that ad interim mandatory injunction is passed in a rarest of rare cases, but, in our view, this is a case where passing of an ad interim mandatory injunction was absolutely necessary as we find from the deed of surrender which is annexed to the stay application that not only Narayan Rajpurohit, but also several other tenants in common did not sign in the said deed of surrender. The legality of surrender of such tenancy by some of the tenants in common will be an issue in the suit, particularly when the other tenants in common did not join themselves in surrendering the tenancy which the tenants held as a tenants in common on the death of the original tenant. As such, we do not find any unreasonableness in the order impugned. However, the order which is impugned in this order, in our view, cannot be implemented in view of the changed circumstances as it is reported by the learned Receiver that the entire suit premises has been demolished and the same is now under reconstruction.
Mr. Basu, learned senior counsel appearing for the plaintiff/appellant has given a very fair suggestion for disposal of the injunction proceeding as a whole. He submits that no useful purpose will be served either by keeping the respondent's application for temporary injunction pending or by leaving the incomplete construction at this stage, pending disposal of the suit.
Mr. Basu submits that if instead of stalling the construction, the construction is allowed to be completed under the supervision of the learned Receiver and the learned Receiver is permitted to continue his possession even after such construction is completed till the disposal of the suit, the party who will ultimately be successful in the suit, will be benefited as immediately after the disposal of the suit, he may ultimately reap the benefit of such construction subject to the result of the suit. Mr. Basu also submits such construction can be completed by his client within one month.
Mr. Karmakar, learned advocate appearing for the respondent no.2 accepts such submission of Mr. Basu.
We also feel that the suggestion which is given by Mr. Basu will be the complete solution at this interlocutory stage. As such, we dispose of this appeal by permitting the plaintiff/appellant to complete the construction strictly in accordance with the sanctioned plan under the supervision of the learned Receiver who will continue his possession over the completed construction till the disposal of the suit.
Since a dispute is raised as to whether the plaintiff can be permitted to complete such construction with the plan which had been sanctioned by the municipal authority, we direct the learned Receiver to ascertain from the municipal authority as to whether the proposed construction can be allowed to be completed on the basis of the sanction which the municipal authority had already accorded to the plan submitted by the plaintiff/appellant for reconstruction of the roof only. If the learned Receiver is satisfied that such reconstruction can be completed with the sanction already obtained by the appellant, then the plaintiff/appellant will be permitted to complete the incomplete construction as per the said sanctioned plan.
It is further clarified that in the event the learned Receiver is reported by the municipal authority that such construction cannot be completed on the basis of the sanctioned plan which had already been obtained by the plaintiff/appellant, in that event, the learned Receiver will not permit the plaintiff/appellant to complete the incomplete construction over the suit premises until a legal and valid sanction is obtained by the plaintiff/appellant for completing such incomplete construction over the suit premises.
It is, thus, further clarified that possession of the suit premises after its reconstruction will be given to the party who will succeed in the suit.
The plaintiff/appellant is restrained from selling and/or transferring and/or alienating and/or dealing with the suit property and/or creating any third party interest therein till the disposal of the suit.
It is made clear that after the construction is completed, the learned Receiver will appoint one Darwan and/or Caretaker over the suit property. The salary of the Darwan and/or the Caretaker will be paid by the plaintiff/appellant.
The remuneration of the learned Receiver is fixed at Rs.20,000/- (Rupees twenty thousand only) per month to be paid by the plaintiff/appellant every month within 7th of each current month.
The application for temporary injunction pending before the learned Trial Court is deemed to be disposed of.
The report submitted by the learned Receiver on 3rd September, 2017 in compliance of the Court's order dated 1st September, 2017 is accepted and the same do form part of the record.
Let it be recorded that the initial remuneration of the learned Receiver has been paid by the respondent no.2 in compliance of the Court's order dated 1st September, 2017.
The appeal and the applications filed in connection therewith are thus, disposed of.
Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.
(JYOTIRMAY BHATTACHARYA, J.) ( SHIVAKANT PRASAD, J. ) dc.