Calcutta High Court (Appellete Side)
Gpt Health Care Private Limited vs Soorajmull Nagarmull & Ors on 2 November, 2017
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
1
3 to 02.11.2017 FMA 1347 of 2017
6 (FMAT 398 of 2017)
with
gd CAN 3445 of 2017
with
FMA 1348 of 2017
(FMAT 335 of 2017)
with
CAN 2881 of 2017
with
FMA 1349 of 2017
(FMAT 670 of 2017)
with
FMA 1350 of 2017
(FMAT 1035 of 2017)
GPT Health Care Private Limited
Vs.
Soorajmull Nagarmull & Ors.
Mr. Jayanta Mitra
Mr. Aniruddha Chatterjee
Mr. Srijib Chakraborty
..for the Appellant
Mr. Haradhan Banerjee
Mr. Amitava Paine
Mr. Partha Pratim Mukherjee
Ms. Manideepa Paul Roy
Mr. S. Dutta
..for the Respondents
The matter involves a point of principle. It is painful that it has to be reasserted over and over again that an ex parte ad interim order is an exception and not the rule.
The appeal arises out of an ex parte ad interim order. The scope of the appeal is limited. 2 The appellant has made no attempt to rely on any statement or fact which is not contained in the plaint or the interlocutory petition. The appellant has attempted to refer to the plaint and the documents appended to the plaint to suggest that it is undeniable that the appellant was and continues to be in possession of the immovable property which is covered by the impugned order of injunction in the form of status quo.
It appears to be the fairly admitted position from the plaint and the petition that the appellant was in possession of the property over which the injunction was sought at the time that the ex parte ad interim order was passed.
The appellant also suggests that by virtue of the West Bengal Estates Acquisition Act, 1953 and the notification issued under Section 4 thereof, the appellant is to be regarded as the owner of the property on the basis of the plaint case and the documents relied upon by the first respondent herein. However, on such score, the first respondent plaintiff points out 3 that there may be some discrepancy in the original document under which the land was sold to the predecessors-in-title of the appellant. Such aspect of the matter is not gone into in the light of the adjudication here being limited to the propriety in entertaining the petition ex parte and passing an order thereon without reference to the appellant herein.
What is of importance in this appeal is that the ex parte order was granted without the trial court speaking of any urgency and without the petition that was carried to the trial court indicating good grounds that could have prompted an ex parte ad interim order. The trial court did lip service to there being a prima facie case and the balance of convenience being in favour of the plaintiff; but the trial court did not indicate how the service of a notice on the principal defendant would have defeated the action or would have caused irreparable injury or any grievous prejudice to the plaintiff.
Order XXXIX Rule 3 of the Code requires interlocutory applications to be served on the 4 person likely to be affected by the order sought before an order is made. The proviso to such rule carves out an exception; but it appears that the exceptional situation is now treated as the routine and it is only in the unusual case that a notice is required to be issued. As a consequence of this practice which has developed, unworthy claimants have often been rewarded with ex parte ad interim orders that take years to be vacated. Ironically, it is only when a vacating application comes up that courts do not find time to attend to the same, yet when an ex parte order is sought there is sufficient time to take up such matter.
The appellant appropriately refers to page 75 of the papers from which it is evident that sometime in October-November, 2016 the first respondent plaintiff or its appropriate personnel came to be aware that the appellant herein proposed to put up a construction at the relevant property. The appellant also refers to a complaint lodged with the police authorities by the plaintiff on March 10, 2017 immediately 5 before coming to court where there was no allegation of the appellant trespassing into the plaintiff's property or constructing upon the plaintiff's property; but only a timid assertion that some construction work undertaken by the appellant herein was causing damage to the boundary wall of the plaintiff.
At the same time, it must be kept in mind that merely because a Judge fails to give adequate reasons as to urgency, it may not render the order nugatory or cause prejudice to a worthy plaintiff; as the order may pass muster if adequate grounds of urgency are cited in the petition. Despite the order impugned dated March 15, 2017 not referring to why it was necessary to pass an ex parte order or the urgency involved in the matter, the averments in support of an ex parte order contained in the interlocutory petition may be seen. Such averments are found at paragraph 3 of the petition filed before the trial court:
"That the defendant No. 1 through its men and Managing Director 6 engaged huge masons by demolishing existing structure and building one by one w.e.f. 05.03.2017 and started digging earth for construction of pillers and multistoried building on the 'B' Schedule property and huge quantity of building materials have been stacked on the part of 'B' Schedule property w.e.f. 08.03.2017 and the partner of the plaintiff resisted such activity of the defendant No. 1 even on 08.03.2017 but the defendant No. 1 through its agents and employees have been threatening on and from 08.03.2017 this plaintiff that defendant No. 1 has every right to raise multistoried building by construction of flats and to sale to the intending Purchasers as owner thereof when the partner of the plaintiff wanted to look into the Sanction Plan if any which the defendant No. 1 refused to produce the same and hence the plaintiff is apprehending that there is no sanctioned plan secured by the defendant No. 1. This plaintiff lodged G.D. Entry dated 10.03.2017 to the local Golabari Police Station. But the defendant No. 1 has engaged huge 7 masons by raising multistoried on the 'B' Schedule property. Hence, ad- interim injunction may be granted in terms of prayer hereinbelow otherwise object of granting injunction would be defeated by delay. Hence considering urgency ad-interim injunction in terms of prayer hereinbelow may be granted otherwise this plaintiff will suffer irreparable loss and injury."
Since it is evident from elsewhere in the petition that the plaintiff was aware that the appellant herein was proposing to undertake construction work at the relevant immovable property in the possession of the appellant herein sometime in October or November, 2016 and since the construction work, according to the plaintiff, commenced on March 5, 2017, there was no basis indicated in the petition for the plaintiff to seek or obtain an ex parte order on March 14 or March 15, 2017. No doubt, the plaintiff had pleaded that delay may defeat the plaintiff's cause or cause prejudice to the plaintiff, but the mere iteration of such words or jargon would not 8 suffice for cogent grounds to be made out in support thereof.
The plaintiff first refers to a judgment reported at (2000) 2 CHN 856 (Jitesh Pandey vs. Smt. Urmilata Sinha) for the proposition that an appeal from an ad interim order is of limited scope and the onus on the appellant is almost as in a demurrer. However, the enunciation of the law in that case was on the basis of the facts that were carried to the trial court and on the basis of the circumstances leading to the passing of the ad interim order. A tenant, well entrenched in possession, was being sought to be wrongfully dispossessed. An ex parte ad interim injunction was issued. The observation cited was made in course of the challenge to such order of injunction that merely preserved the plaintiff's possession. Surely, the situation as in that reported case is not comparable to the one at hand.
The plaintiff has also relied on the judgments reported at (2007) 2 CHN 109 (Intime Spectrum Registry Ltd. vs. MCS Ltd.), (1999) 1 9 CHN 617 (NEPC Micon Ltd. vs. Magma Leasing Ltd) and (2013) 9 SCC 221 (Mohd. Mehtab Khan vs. Khushnuma Ibrahim Khan).
In the first two of such cases there were extraordinary circumstances that warranted ex parte ad interim orders and, in the second of the cases, a Division Bench of this court held that merely because the trial court had not indicated adequate reasons, it would not rob a worthy claimant of the right to an ad interim order if the appellate court found adequate grounds in the pleadings. In the first case, grounds of urgency were found to have been furnished in the order impugned and the court was satisfied with the same.
As to the Supreme Court judgment cited by the plaintiff, a mandatory injunction was declined by the trial court upon documents being produced by either side. The appellate court issued the mandatory injunction. The Supreme Court held that the appellate court erred since it could not be said that the view taken by the trial court was not a possible view. 10 The plaintiff has cited the judgment for the proposition that unless the discretion available to the trial court is shown to have been exercised in a perverse manner or a completely untenable view is evident from an order impugned, the appellate court should not interfere with the discretion exercised by the trial court.
Unfortunately, on the basis of the averments in the petition and the grounds as to urgency indicated therein, the trial court in this case could not have been prompted to take up the matter with the kind of alacrity that has been shown. The trial court did not indicate any reasons as to why it was necessary to pass an ex parte ad interim order and the petition did not contain adequate grounds in such regard. The construction had already commenced. That the construction had commenced on March 5, 2017 could not have been the guiding factor in this case since, on the plaintiff's version, the plaintiff was aware from November, 2016 that the appellant herein proposed to make a construction on the land in the appellant's 11 possession. Even if the plaintiff had rushed to court within a day or two of the construction commencing, some modicum of reasons or rationale in its favour could have been discovered. But the plaintiff waited for more than a week before coming to court and, in between, there was a complaint where the innocuous allegation was of the boundary wall of the plaintiff was being damaged; not of a person wrongfully constructing on the plaintiff's property.
The only object of the present exercise is to ensure that trial courts are careful in exercising their discretion to entertain interlocutory applications ex parte or pass ex parte orders. It is only in the exceptional case that an ex parte order may be passed when it appears to the court that denial of the order at such stage would amount to the action being defeated or in irreparable injury or gross prejudice being occasioned to the suitor.
Since the case carried by the plaintiff to the trial court did not meet such high standards, 12 the trial court erred in entertaining the prayer for an ex parte order and passing an ex parte order. Accordingly, the order impugned dated March 15, 2017 in so far as it issued an injunction in the form of status quo being required to be maintained is set aside and the trial court is requested to hear out the injunction application on merits within a period of six weeks from date. It is made clear that the substance of the present order is confined to the ex parte order and is not a commentary on the general merits of the plaintiff's case. In any event, the trial court will be free to arrive at its own conclusion at the final interlocutory stage uninfluenced by any of the observations herein.
FMA 1347 of 2017 is allowed as above. CAN 3445 of 2017 is disposed of accordingly.
There will be no order as to costs.
In view of the order above on the parent order passed by the trial court and since the subsequent appeals are in respect of the orders of extension, such appeals, being FMA 1348 of 2017, FMA 1349 of 2017, FMA 1350 of 2017 and 13 the connected application, CAN 2881 of 2017, are disposed of on the above basis without any order as to costs.
Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.
(Sanjib Banerjee, J.) (Sabyasachi Bhattacharyya, J.) 14