Calcutta High Court
Tanusree Basu And Ors. vs Ishani Prasad Basu And Ors. on 17 March, 2007
Equivalent citations: 2007(3)CHN724
Author: Tapan Kumar Dutt
Bench: Tapan Kumar Dutt
JUDGMENT Tapan Kumar Dutt, J.
1. Having heard the learned Counsels for the respective parties, it appears that the following are the facts, in brief.
2. The petitioners filed a suit for partition and in such suit the petitioners filed applications under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure. In one of the applications the petitioners prayed for an order of injunction restraining the defendant No. 7 from handing over possession of owners' allotted flat of premises No. 1/1A, Sree Mohan Lane, Calcutta-700 026 (schedule 'A' in the plaint) and also restraining the defendant Nos. 1 to 6 from selling any flat of the said premises to any stranger till the disposal of the suit. In the other application, the petitioners prayed for an order of temporary injunction restraining the defendant Nos. 1 to 6 from inducting any tenant or stranger and/or selling out the western side flat No. 201 on the second floor of premises No. 46A, Puma Chandra Mitra Lane, P.S. Charu Market, Kolkata -700 033 (schedule 'B' in the plaint). In the order dated 16.07.2005 passed by the learned Trial Court, the learned Trial Court recorded inter alia that the plaintiff's Case is that the parties to the suit became the joint owners and possessors of the suit property by inheritance from their predecessors-in-interest and that the plaintiff's and the defendant Nos. 1 to 6 entered into a development agreement with the defendant No. 7 on 15.05.2002 for erecting a multi-storied building on the 'A' schedule property. It has also been recorded that it is the case of the plaintiff's that as regards the 'B' schedule property the plaintiffs and the defendant Nos. 1 to 6 entered into another development agreement on 22.03.1993 with another developer for constructing another multi-storied building thereon and accordingly that was constructed and the developer has handed over the possession of the allotted flats to the plaintiffs and defendant Nos. 1 to 6 who have got possession of three flats and three garages therein and that, according to the plaintiffs, by amicable arrangements the plaintiffs and the defendants Nos. 1 to 6 are in separate possession of those three flats. With regard to the injunction application in respect of the 'A' schedule property, the learned Trial Court found that there is no substantive evidence showing the defendant's endeavour to sell out owners allotted flat and the learned Trial Court ordered that the parties to the suit shall maintain status quo with regard to the 'A' schedule property as on that date in respect of its nature and character of the said property and the parties were further directed not to encumber the said property in any way whatsoever till the disposal of the suit.
3. In the said order dated 16.7.2005 the learned Trial Court observed with regard to the 'B' schedule property that from the materials on record it appears that admittedly the plaintiffs and the defendants Nos. 1 to 6 are in possession of 'B' schedule property by amicable arrangement having three flats and three car parking space thereto and in prima facie appears that the plaintiffs are in possession of flat No. 202, defendant No. 1 is in possession of flat No. 201 and the defendant Nos. 2 to 6 are in possession of flat No. 302 in the 'B' schedule property. The learned Trial Court also observed that it is prima facie clear that on some false and vague plea for obtaining undue advantage the plaintiffs have come up before the Court with the injunction application in respect of the 'B' schedule property and that the plaintiffs have failed to prove any prima facie case. The learned Trial Court by the said order dated 16.07.2005 dismissed the said temporary injunction application.
4. The petitioners being aggrieved by the said order dated 16.07.2005, preferred an appeal before this Court being FMA No. 988 of 2005 and on 29.08.2005 an Hon'ble Division Bench of this Court was pleased to admit the said appeal and inter alia pass an interim order directing the parties to maintain status quo. It appears that on 10th August, 2006, the said appeal was dismissed for non-filing of some requisite.
5. That on 14th August, 2006, the opposite party No. 1 filed an application Under Section 151 CPC before the learned Trial Court praying for a direction upon the plaintiffs to remove the padlock and sundry household articles from the aforesaid flat No. 201 in the 'B' schedule property and not to cause any obstruction or inconvenience to the said opposite party in the peaceful enjoyment of the flat No. 201.
6. It appears that the petitioners filed an application for restoration of the aforesaid appeal which was filed in this Court and by an order dated 21st September, 2006 an Hon'ble Division Bench of this Court was pleased to recall the order of dismissal of the appeal and the appeal was restored to file. The said Hon'ble Division Bench by the same order was pleased to dispose of the appeal and the connected application in the following manner:
In such view of the matter we dispose of this appeal and the application by holding that the parties to the suit shall be entitled to maintain their respective possession in the suit properties as on today without being entitled to make any change in the nature and character of the same. It is, however, made clear that if there be any pending application before the Trial Court by alleging that since after making of the impugned order by the Trial Court, a change has been made by some of the parties in respect of their respective possession by force and/or illegally, then the Trial Court will be entitled to deal with the said application and to pass an appropriate orders irrespective of the above order of disposal of this appeal.
7. Thereafter, by the impugned order dated 21.11.2006 the learned Trial Court disposed of an application for amendment of the plaint filed by the plaintiffs by allowing the same. By the impugned order the learned Trial Court also disposed of the application filed by the defendant No. 1 Under Section 151 CPC on 14.08.2006 by directing the plaintiffs to remove the padlock and sundry household articles from flat No. 201 immediately and the plaintiffs were restrained from making any further obstruction to the defendant No. 1 in peaceful enjoyment of the said flat and that in this regard the defendant No. 1 was given liberty to take police assistance, if so required.
8. The petitioners, in the present application under Article 227 of the Constitution of India, are aggrieved by the later part of the impugned order in respect of the disposal of the defendant No. 1's application Under Section 151 CPC. It appears that the learned Trial Court took into consideration the fact while disposing of the application under Order 39 Rules 1 and 2 CPC, filed by the plaintiffs on 11.04.2005, the learned Trial Court came to the finding that the flat No. 201 is in possession of the defendant No. 1, flat No. 202 is in possession of the plaintiff and flat No. 302 is in possession of the defendant Nos. 2 to 6. The learned Trial Court also considered the effect of the order passed by the Hon'ble Division Bench while disposing of the appeal and the learned Trial Court was of the view that full liberty was given to the learned Trial Court to dispose of the application filed by the defendant No. 1 Under Section 151 CPC in accordance with law. It appears that the learned Trial Court has observed that the materials on record go to show that the defendant No. 1 is in possession of the said flat No. 201 and that the defendant No. 1's version that the plaintiffs have illegally put padlock and got some sundry articles in the said flat is correct. The learned Trial Court was of the view that the plaintiffs should not be allowed to take the law in their own hands and the plaintiffs are not supposed to make any obstruction to the defendant No. 1 in peaceful enjoyment of the said flat No. 201 in the 'B' schedule property.
9. The learned Counsel for the petitioners has referred to the written objection filed by the petitioners against the defendant No. l's application dated 14.08.2006 and submitted that in the said written objection the petitioners have alleged that they are all along in possession of flat Nos. 201 and 202 and that the petitioners are residing there and as such there is no question of causing any obstruction to the defendant No. 1. It has also been submitted by the said learned Counsel that the defendant No. 1 has not stated specifically as to when the plaintiffs have put their articles in flat No. 201 and as to when the padlock was put in respect of the said flat.
10. Reference was made by the said learned Counsel to the decision reported at SC; Suppl. 2006(3) CHN 27 (Kiahore Kumar Khaitan and Anr. v. Praveen Kumar Singh). In the said reported case it was found that prima facie it was clear that the plaintiff in the said case has not laid the foundation for the grant of an interim order of mandatory injunction in his favour. In the said reported case it further appears that the Trial Court had refused an ad interim ex parte order of injunction and the main application for injunction was still pending before the learned Trial Court and that the learned Appellate Court was dealing with only the limited question whether an ad interim order of injunction should or should not have been granted by the learned Trial Court. It further appears that in the said case there was no clear prima facie finding that the plaintiff was in possession on the material dated and, in such circumstances, an order for interim mandatory injunction could not have been passed. It further appears from the said reports that an interim mandatory order of injunction can be passed only in circumstances which are clear and the prima facie materials clearly justify a finding that the status quo has been altered by one of the parties to the litigation and the interests of justice demanded that the status quo ante be restored by way of an interim mandatory injunction. It appears that the facts of the said reported case were not similar to the facts of the present case since there is a clear prima facie finding by the learned Trial Court while disposing of the plaintiffs petitioners' application for temporary injunction on contest as already indicated above and the learned Trial Court came to the finding that admittedly the plaintiffs and the defendant Nos. 1 to 6 are in possession of schedule 'B' property in amicable arrangement having three flats and three car parking space thereto and from the materials on record it prima facie appears that the plaintiffs are in possession of flat No. 202, defendant No. 1 is in possession of flat No. 201 and defendant Nos. 2 to 6 are in possession of flat No. 302 in the said 'B' schedule property. Thus, it cannot be said that in the present case there is no prima facie finding by the learned Trial Court. Therefore, in the present facts and circumstances of the case, the said reported case cannot be of any help to the petitioners. It is clear that the learned Trial Court after having recorded its prima facie finding in respect of possession by the respective parties in respect of the 'B' schedule property, the learned Trial Court disposed of the application for injunction on contest.
11. The learned Counsel for the opposite party/defendant No. 1 referred to the application for injunction filed by the plaintiffs wherein the plaintiffs stated that at the time of filing of the said application the plaintiffs and the defendant Nos. 1 to 6 were occupying three flats and three garages in the 'B' schedule property which is an undivided property. In another place in the said application for injunction the plaintiffs have stated that although by amicable agreements the parties are in possession of separate flats in schedule 'B' property, there has not been any demarcated possession according to the respective shares of the parties. The learned Counsel for the said opposite party referred to copies of some of the documents annexed to the affidavit-in-opposition to show that the defendant No. 1 has been in possession of flat No. 201. Reference was made to a copy of a letter (appearing at page 54 of the affidavit-in-opposition) and it was submitted by the said learned Counsel that it was a letter by the developer to the predecessor-in-interest of the plaintiffs wherefrom it will appear that one flat was allotted in favour of the said predecessor-in-interest of the plaintiffs. Reference was made to a copy of the agreement of license granted by the defendant No. 1 to a licensee in respect of the flat on the second floor (western side) in the said 'B' schedule property. A copy of such license appears at pages 56 to 58 of the said affidavit-in-opposition. Reference was made to copies of some of the receipts in respect of the license fees paid by the licensee concerned. Reference was also made by the said learned Counsel to a copy to another agreement of license (appearing at pages 62 to 64 of the affidavit-in-opposition), wherefrom it appears that the said flat No. 201 was the subject-matter of the said license. Similar documents annexed to the affidavit-in-opposition were referred to by the learned Counsel for the said opposite party. The said learned Counsel referred to one of the applications filed by the petitioners in this Hon'ble Court and submitted that in such application the petitioners had submitted inter alia that unless during the pendency of the appeal the opposite party Nos. 1 to 6 are restrained by an order of injunction from inducting any tenant/stranger and/or selling out the western side flat No. 201 on the second floor of the premises No. 46A, Purna Chandra Lane, Calcutta- 700 033, the petitioners will suffer irreparable loss and injury. According to the learned Counsel for the said opposite party, such submission by the petitioners also prove the case of the defendant No. 1 that the defendant No. 1 has been in possession in respect of the said flat No. 201.
12. The learned Counsel for the said opposite party submitted that for the first time in the written objection filed by the plaintiffs against the defendant No. 1's petition dated 14.08.2006, the plaintiffs took the plea that the said flat No. 201 was in their occupation.
13. Reference was made by the said learned Counsel to a decision reported at (Samir Sobhan Sanyal v. Tracks Trade Put. Ltd. and Ors.) and it was submitted by the said learned Counsel that the Court cannot overlook and/or condone the high-handed and unlawful and illegal act of the plaintiffs/petitioners, as already indicated above, and that the learned Trial Court was absolutely justified in passing the impugned order.
14. The said learned Counsel also referred to a decision reported at (Sujit Pal v. Prabir Kumar Sun and Ors.) and submitted that the Court can always exercise its inherent power to prevent the abuse of the process of the Court and to do justice by immediately intervening in certain circumstances which requires such intervention by the Court. According to the said learned Counsel the learned Trial Court by the impugned order was fully justified in giving appropriate directions.
15. It appears from the materials on record, as already discussed above, and after having considered the respective submissions made by the learned Counsels for the respective parties, as already discussed above, that the defendant No. 1 has been in possession of the said flat No. 201 at all material times. Copies of certain documents which have been annexed to the affidavit-in-opposition, as discussed above, shows that the learned Trial Court was not in error in making a prima facie finding with regard to the respective possession of the parties in the 'B' schedule property. It further appears that the plaintiffs/petitioners at the initial stage did not dispute the possession of the defendant No. 1 in respect of the said flat No. 201 but only at a later stage the plaintiffs/petitioners became interested in denying the possession of the defendant No. 1 in respect of flat No. 201. The plaintiffs/petitioners could not substantiate their claim in respect of the said flat No. 201 by any supporting document.
16. In such circumstances, this Court does not find any reason to interfere with the impugned order. The application under Article 227 of the Constitution of India is without any merit and the said application is accordingly dismissed.
17. There will, however, be no order as to costs.
18. Urgent xerox certified copy of this order, if applied for, be supplied to the parties upon compliance of requisite formalities.