Calcutta High Court (Appellete Side)
Cls Ltd. & Anr vs Ashok Jatia & Ors on 4 September, 2018
Author: Patherya
Bench: Patherya
1
9/2018 F.A.T. 620 of 2016
+
D. CAN 874 of 2017
CLS Ltd. & Anr.
-vs-
Ashok Jatia & Ors.
Mr. Jishnu Chowdhury
Mr. Chayan Gupta
Mr. Kushal Chatterjee
... For the Appellants.
Mr. Surojit Nath Mitra
Mr. Kumar Jyoti Tewari
... for the respondent no.1
Mr. Aniruddha Chatterjee Mr. P. Ghosh ... for the respondent No.3.
< The plaintiffs, the appellants herein have filed the present application praying for an order of injunction restraining the respondents/ opposite parties from transferring, alienating, parting with possession and/or from creating any third party interest in respect of the suit property being all that entire first floor of the newly constructed building at premises No. 1A Janki Shah Road, Kolkata- 700022 till the final disposal of the appeal.
The plaintiffs/ appellants in the suit have prayed for following reliefs:
(A) Declaration that the plaintiff No. 1 is still continuing as a monthly tenant in respect of entire first floor of Premises 1A, Janaki Shah Road, P.S. Hastings, Kolkata- 700022 as described in the Schedule hereunder written.
(B) Permanent injunction restraining the defendants Nos. 1 to 7 their men agents and/or servants and/or each of them from transferring and/or allocating and/or parting and/or letting out and/or leasing out in any 2 manner whatsoever any portion of the new building before delivery of possession of the plaintiffs allocated tenanted area at the newly constructed building at Premises No. 1A, Janaki Shah Road, P.S. Hastings, Kolkata- 700022.
(C) Mandatory injunction directing upon the defendants No. 1 to 7 for delivery of vacant possession of a tenanted area being the entire first floor in the new building constructed by them at premises No. 1A, Janaki Shah Road, P.S. Hastings, Kolkata- 700022 equivalent to area as specified in the Schedule hereunder written. (D) Temporary injunction in terms of prayer (b) and (c) (E) Receiver (F) Attachments (G) Cost and advocate's fees (H) Such further or relief or reliefs."
The learned Trial Judge dismissed the suit with the finding that the tenancy of the plaintiff no. 1 stood terminated by express surrender and delivery of possession. Be that as it may.
The plaintiffs/appellants are admittedly not in possession. On perusal of the Judgment under appeal it further reveals that the learned Trial Judge while dismissing the suit had also taken into his consideration that the plaintiff no. 2, who is the Director of the plaintiff no. 1 has not come forward as witness to prove the plaintiffs case, instead one Mr. Benay Chandra Jha who is neither a director/ officer of the plaintiff No. 1 company and had nothing do with the plaintiff No. 1 company nor a party to the share purchase agreement had come forward to give evidence on behalf of the plaintiffs.
The present application for injunction has also been affirmed by the said Benay Chandra Jha as the constituted attorney of the plaintiffs/ appellants.
3Therefore, when the locus standi of the said Benay Chandra Jha to represent the plaintiff No. 1 company has been doubted by the learned Trial Judge and the propriety of the said doubt can only be considered at the time of the hearing of the present appeal.
That apart the appellants/ petitioners only at paragraph No. 45 of the application have expressed their apprehension that if during the pendency of the appeal the suit property is not protected by an appropriate order of injunction the suit property will transferred, alienated and the possession of the same would be parted with. On perusal of the affidavit in support of the said application it appears that the said paragraph of the application has not been affirmed in conformity with Order 19 Rule 3 of the Code of Civil Procedure. The present application being an interlocutory one lack of proper affirmation is fatal.
Mr. Chatterjee, learned advocate, appearing on behalf of the respondent no. 3, submits that during the pendency of the appeal third party right in respect of suit property has been created by inducting a tenant.
The plaintiffs in the suit are claiming their tenancy right over the suit property. Therefore, at their instance the landlords cannot be restrained from dealing with the suit property by exercising their right of ownership. The plaintiffs at best have the right to get back their possession over the suit property, in the event they succeed in the appeal and in such event the person in possession of the suit property would be bound by the said decree.
We, therefore, find that the plaintiffs/ appellants have failed to make out a prima facie case and the balance of convenience and inconvenience are also not in favour of the plaintiffs/ appellants in granting an order of injunction as prayed for. The plaintiffs/ appellants also will not suffer any irreparable loss and injury in the event the order of injunction as prayed for is refused.
4In view of the discussion made above the application for injunction being CAN 874 of 2017 is dismissed. No order as to costs.
The hearing of the appeal be expedited.
The respondent Nos. 1 and 3 have entered appearance in the present appeal through their learned advocates. The learned counsels appearing on behalf of the said respondents waive formal service of notice of appeal upon their respective clients.
The appeal is, therefore, ready as regards service as against the respondent nos. 1 and 3.
The appellants are directed to put in requisites for service of notice of appeal upon the non-appearing respondents by speed post with A/D and costs of such notice be put in within one week from date.
Lower Court records be called for by Special Messenger at the costs of the appellants and such costs be put in also within one week from date.
Let the lower Court's records be called for by special messenger at the costs of the appellants and such costs be put in within a week from date. The department on deposit of the said costs shall call for the lower Court records immediately and shall ensure the same is reached to this Court within two weeks from the date of requisition.
The department after arrival of the Lower Court's records shall inspect the same and on inspection if it is found complete, shall serve notice of arrival of the Lower Court's records upon the learned advocate for the appellants, who shall then prepare and file the requisite numbers of paper books within two weeks from the date of receipt of the notice of arrival of lower court's records.
5The appeal be listed for final hearing four weeks after filing of the paper book if it is otherwise ready for hearing.
Certified copy of this order, if applied for, be given to the parties on priority basis on compliance of the requisite formalities.
(Patherya, J.) (Biswajit Basu, J.)