Calcutta High Court
Sushil Kumar Jhunjhunwala vs Shi S.M. Chowdhury & Anr. on 1 July, 1998
Equivalent citations: (1998)3CALLT179(HC)
Author: S.B. Sinha
Bench: Satyabrata Sinha
JUDGMENT S.B. Sinha, J.
1. This appeal is directed against a judgment and order dated 4.6.97 passed by Sri D.K. Roy, learned Judge. 2nd Bench. City Civil Court at Calcutta in Title Suit No. 513 of 1997 whereby and whereunder he allowed an application filed by the respondent No. 1 herein under Order 39 rule 4 of the Code of Civil Procedure as also allowed an application for mandatory injunction filed in his behalf.
2. The basic fact of the matter is not much in dispute.
3. One Chiranjilai Jhunjhunwala, father of the appellant was a member of Calcutta Stock Exchange Association Limited. He, in that capacity, was a tenant in respect of the premises belonging to respondent No. 2 herein being room No. 9A. He allegedly made a declaration in favour of the appellant on 10.2.93 to the effect that after his death, the membership card and the said tenancy with connected benefit be transferred to the appellant, who was his eldest son. Admittedly, the said Chiranjilai Jhunjhunwala also issued a letter to the respondent No. 2 on 29.3.94 expressing his desire to transfer tenancy in respect of the said room in favour of Sm. Anita Bubna, which was transmitted to respondent No.2. It is accepted that the respondent No.2 entered into an agreement with the aforementioned Anita Bubna and had also accepted rent from her from April 1995 onwards. However, it is seriously disputed although it is the contention of the appellant that the respondent No. 2 also accepted rent from the appellant and thus accepted him as a tenant.
4. On 2.9.94, the aforementioned Chiranjilai Jhunjhunwala died, whereas the aforementioned agreement between respondent No. 2 and Sm. Anita Bubna was entered into on 9.4.94. It is alleged that Anita Bubna upon obtaining possession, surrendered her tenancy, whereas it is the case of the appellant that he had taken possession of the said premises and had paid rent upto March 1995. It is, however, the case of the respondents that rent was in fact paid by the aforementioned Anita Bubna, but rent receipt had been granted in the name of the said Chiranjilai Jhunjhunwala till March 1995. As evidently a dispute arose with regard to possession of the said premises, the appellant filed a suit against the said Sm. Anita Bubna and the respondent No. 2 which was marked as Title Suit No. 148 of 1996. On an application for injunction filed by the appellant, an order of status quo was passed and as despite service of notice, the defendants did not appear, the said interim order was made absolute. From the records it further appears that Anita Bubna entered into negotiation with respondent No. 1 for transfer of the tenancy and made a request in that regard whereafter pursuant to or in furtherance of the decision of the appropriate committee of respondent No. 2, a tenancy was granted in favour of the respondent No. 1 with effect from March 1, 1997. However, it appears that in view of the decision of the committee, Anita Bubna delivered possession of the said premises to respondent No. 1. There had been a breach of peace as regards possession of the said premises resulting in initiation of 2 proceedings under section 144(2) of the Code of Criminal Procedure. The appellant had alleged that the respondents broke open the padlock and put a padlock and also interfered with his possession, On the other hand, case of the respondent No. 1 is that after obtaining possession, he had put padlock and kept some share scripts and other documents in a brief case, and it was the appellant who had broken the said padlock and put his own padlock. Thereafter, the instant suit was filed against the respondents by the appellant. The appellant' filed an application for injunction, and the learned trial Judge granted an ad interim injunction of status quo. It appears that upon receipt of notice, an application for mandatory injunction was filed by the respondent No. 1 on 15.3.97, and thereafter also filed an application under Order 39 rule 4 of the Code of Civil Procedure. Both the aforementioned applications as also the appellant's application for injunction were disposed of by the learned trial Judge in terms of the impugned order. Although the respondent No. 1 had not only filed an application for mandatory injunction, but had also filed an application for dissolution of the interim injunction in terms of Order 39 rule 4 of the Code of Civil Procedure, only one appeal has been filed by the appellant questioning only grant of mandatory injunction in favour of respondent No. 1. Thus, the appellant must be held to have accepted the order passed against him by the learned trial Judge on the respondent No. 1's application under Order 39 rule 4 of the Code of Civil Procedure.
5. Mr. Chakraborty, learned counsel appearing on behalf of the appellant has taken us through various documents and has submitted on the basis thereof, that a bare perusal of the said documents would clearly show that the story set up by the respondents is not believable. Learned counsel upon taking us through various documents, submitted that there are inherent contradictions and inconsistencies in the said records and thus, the learned trial Judge must be held to have erred both on fact as well as in law in holding that the respondent No. 1 had been in possession of the premises in question, and he was dispossessed by the appellant. Learned counsel submitted that in view of the rival contentions of the parties following issues would emerge:
"As to whether the letter dated 29.3.94 (at page 136) can be taken into consideration as a letter of surrender and as to whether it can be ascertained from the said letter that while surrendering the tenancy by such letter delivery of peaceful possession in respect of the suit property had also been made or not by the deceased tenant.
if the letter dated 29.3.94 was a letter of surrender and addressed to the respondent No. 2, why the same was in the custody of Anita Bubna till 8.4.94.
On which date the alleged letter of surrender shall come into effect and if a letter expressing an intention to transfer can be treated as a letter of transfer of tenancy or as a letter of confirmation of delivery of possession.
Whether any document was produced by Anita Bubna to justify that she obtained possession of the room from the deceased father of the appellant and as to whether the respondent No. 2 before acknowledging Anita Bubna as tenant under them w.e.f 1.9.94 (i.e. just one day before the death of the recorded tenant) had ever enquired as to how the possession of the room could have been delivered to the new tenant upon effecting alleged transfer of the tenancy.
Why the copy of the letter dated 24.8.94 issued by respondent No.2 and addressed to the said Anita Bubna (at page 138) was sent in the name of deceased tenant at 150, B.K. Pal Avenue, Calcutta-700005 when admittedly the tenancy in respect of the suit property at least till that date admittedly subsisting. No proof of service of copy of the letter to the deceased tenant was also filed in the trial court. The genuineness of the said letter was also challenged in the trial court.
if the tenancy in the name of Anita Bubna was created under agreement dated 9.9.94 w.e.f. 1.9.94 and, if the tenancy was surrendered w.e.f 29.3.94 (i.e. alleged letter of surrender at page 136), in such case who was the tenant in respect of the disputed room during the period from 29.3.94 till 1.9.94 and who paid rent and who was in possession thereof till that period any why during that period rent and electricity charges were being collected by granting receipt in favour of the deceased tenant and upon receipt of the payment from the appellant and when the factum of death of the deceased tenant was immediately communicated to the respondent No. 2 and why Anita Bubna failed to produce any rent receipt for the period from September 1994 to March 1995 or any bills showing payment of electricity charges consumed in the disputed shop room.
If by mistake the office of the respondent No.2 issued rent bill for the period October to December 1994, on 5.12.94 in spite of receiving payment from Anita Bubna on 7.3.95 why Anita Bubna failed to produce the receipt for the period from January 1995 to March 1995. More so, the receipt annexed with the petition (at page 148 of the P.B) does not bear any seal of the respondent No.2 as would appear from other Bill showing receipt of payment by the respondent No. 2 on the basis of such bill annexed in the said application.
If the tenancy was created in favour of the said Anita Bubna w.e.f 1.9.94 at an enhanced rate of rent of Rs. 60 per month then why the rent bill was raised by the respondent No. 2 at the rate at which the rent was payable by the deceased tenant C.L. Jhunjhunwala but not at the rent of Rs. 60 per month as was the alleged new agreed rent of the said Anita Bubna.
If the bill dated 5.12.94 was a result of mistake then how again bill receipt dated 7.3.95 was issued in favour of the deceased tenant.
Now if the letter dated 24.2.97 addressed to the respondent No.1 by the respondent No.2 and the letter dated 19.2.97 addressed to the respondent No. 1 are accepted to be genuine documents, in such case it can be safely argued that till 242.97 admittedly the tenancy in respect of the disputed room had not been transferred and that such tenancy was admittedly sought to be created w.e.f.1.3.97. In such case when there is no evidence on record as to when and how or from whom, the respondent No.1 had allegedly obtained Khas possession of the room before actual transfer of the tenancy in his favour, the question would arise as to how the said respondent No.1 could have lodged complaint with police either on 21.2.97 or on 24.2.97 and when the respondent No.2 in their letter dated 24.2.97 categorically admitted that till that date Anita Bubna was tenant and was allegedly making payment of rent.
If it is the specific case of the respondent No.1 (in paragraph 10 of the petition for mandatory injunction) that the said respondent No.1 was in possession of the disputed room on and from 24.2.97 then his complaint dated 21.2.97 alleging that he was in actual physical possession should have considered to be a false statement.
The last but not the least issue, i.e. to be considered as to whether in spite of the subsistence or existence of the order of injunction passed in the first suit, the respondent No.2 could have entered into any agreement of new tenancy or accept any transfer charge or acknowledge the respondent No.1 as their new tenant or deliver possession thereof to the said respondent No. 1 in violation of order of status quo."
6. Learned counsel further submitted that it is unthinkable that although the respondent No. 1 was allegedly dispossessed by the appellant he would not file any suit for a along time and would file only an application for mandatory injunction in the suit filed by his client. Learned counsel in this connection has also drawn our attention to letter dated 27.2.97 addressed to the Officer-in-Charge by the respondent No. 1 which is contained in annexure 'M' and the receipt dated 26.5.95 issued by the respondent No. 1 acknowledging receipt of a letter dated 25.5.95 from Sushil Kumar Jhunjhunwala. Despite the fact that the learned counsel for the parties have taken us through various documents and have raised various contentions in this appeal, having regard to the nature of the dispute as also the scope and extent thereof, as noticed hereinbefore, in our opinion, in crucial question would be as to who was in possession of the premises in question. Before we advert ourselves to the said question, we may note the disturbing fact in the application for interim injunction which was annexed to the stay application, the appellant, inter alia, stated:
'That thereafter on 22.2.97 at about 10 A.M when your petitioner again came to the office he saw the defendants including 3/4 unknown persons present there and further found the broken door and removed padlock of the said suit room No. 9A, on the ground of the first floor and further found that the defendant No. 1 only removed padlocks, but also broken the key of the drawers affixed in the room and committed theft of shares scrips of the different companies amounting to Rs. 4.5 to Rs. 5 lacs and cash money of Rs. 35,000/- and further found that the papers, files and other important documents were heaped up in front of the suit room, immediately thereafter your petitioner informed the police station and one Mr. A Chowdhury, S.I investigated the locale and took all information from the persons and your petitioner being present there, the suit room was locked up by the petitioner with the help of the police authority for preventive measures and the same is still lying under their care of the Officer-in-Charge."
In the said application, a prayer appears to have been made:
"Ad interim order mandatory in nature directing the Officer-in-Charge. Hare Street Police Station to protect petitioner's padlocks affixed in the suit room and the possession in favour of the petitioner."
7. The learned trial Judge in the impugned judgment has also noticed the aforementioned fact and came to the conclusion that on the said date, the appellant admittedly was not in possession. However, before us, a certified copy of the said application has been produced by the learned counsel for the appellant, from a perusal whereof it appears that certain changes had been made therein, which is to the following effect:
That thereafter on 22.2.1997 at about 10 A.M when your petitioner again came to the office he saw the defendants including 3/4 unknown persons present there and further found the broken door and removed padlock of the said suit room No. 9A, on the ground of the first floor and further found that the defendants not only removed padlocks, but also broken the key of the drawers affixed in the room and committed theft of shares serips of the different companies amounting to Rs. 4.5 to Rs. 5 lacs and cash money of Rs.35,000/- and further found that the papers, files and other important documents were heaped up in front of the suit room. immediately thereafter your petitioner informed the police station and one Mr. A.Chowdhury, S.I investigated the locale and took all information from the persons and your petitioner being present there, the suit room was locked up by petitioner with the help of the police authority for preventive measures and the same is still lying under their case of the Officer-in-Charge. Hare Street Police Station.
It is really a matter which requires serious consideration by the learned trial Judge while deciding the suit as to whether in fact such changes were effected without knowledge of the court after the order was passed, particularly in view of the fact that as admittedly no leave to amend the said application was ever prayed for. It is submitted that copies served upon the respondents as also filed along with the stay application and the impugned order passed by the learned trial judge clearly suggest that the case which was initially made by the appellant was that the police authorities are in possession of the said premises. Be that as it may, the learned trial judge. in view of the aforementioned material on record arrived on the following findings: (1) after the expiry of Chiranjilal membership unit was not transferred in favour of the appellant; (2) only a person who has membership with the respondent No.2 can occupy the suit room as a tenant and as the appellant has failed to establish his right to possess the same; (3) order of injunction passed in Title Suit No. 148 of 1996 is not binding on the respondent No. 1. The case of the respondents to the effect that the respondent No. 1 was in rightful possession of the suit room, was accepted as the learned trial Judge found no reason to discard the said contention. There cannot be any doubt whatsoever that a court in exercise of its power conferred upon it under Order 39 rules 1 and 2 read with section 151 of the Code of Civil Procedure can pass an order of mandatory injunction. A Division Bench decision of this court in Nandan Pictures v. Art Pictures Ltd., , has been considered by several other Division Bench including one in India Cable Co. Ltd. v. Sumitra Chakraborty . Anil Kumar Sen, J (As His Lordship then was) upon taking into consideration various decisions of different High Courts of this country as also the decision of courts in England, clearly held that the court had power to grant injunction in mandatory form in the following terms:
"Review of those decisions, therefore, leads to the conclusion that there is no bar to the courts granting interlocutary relief in mandatory form though in exercising the court's discretion in this regard the court should act with greatest circumspection. Such a relief can be granted only in rare and exceptional cases and what that rare and exceptional case is must be left to the court to adjudge in the facts and circumstances of each case. I, therefore, now proceed to consider whether the plaintiff in the present case has made out any such exceptional case."
8. Such an injunction can be granted also at the instance of defendant, is also not in dispute. In view of the decision of Travancore Cochin High Court in B.F Varghese v. Joseph Thomas, reported in AIR 1957 Trav-Co 286 and of this court in Dr. Ashfe Reagan Das v. Rajendra Nath Mullick . It is also not in dispute that from the premises in question only stock brokers can perform their business of stock broking. This fact would emerge from me a copy of the agreement entered into by and between the respondent No.2 and Sm. Anita Bubna dated 9.9.94. Whereas it is the positive case of the respondents that both Anita Bubna and the respondent No. 1 are carrying on their trade in stock broking. The appellant, neither before the learned trial judge, nor before us could show that he was carrying on any such business. It is also not disputed before us that the matter relating to transfer of tenancy is considered by an appropriate committee of the respondent No.2. The respondents have been able to produce before the court various documents to show that such a decision had been arrived at by the said committee and the same was communicated both to Anita Bubna as also to the respondent No. 1 Furthermore, from the records it appears that several correspondence had passed between Anita Bubna, respondent No. 1 and the respondent No. 2. It is also evident from the materials on record that at least from April 1995. Anita Bubna had been paying rent. It is true that according to the appellant, he had also paid rent and electricity charges, but that matter may fall for ultimate consideration in the suit, by the learned trial Judge. However, xerox copies of such receipts issued in the name of Chiranjilal Jhunjhunwala had been filed by the respondent No. 1 along with the application under Order 39 rule 4 of the Code of Civil Procedure. The court can take Judicial notice of the fact that a premises which is very valuable for business purpose, tenants are ejected by the landlords and persons interested fight infer se amongst themselves to obtain possession of such premises. The landlord or the contesting party take law in their own hands in ousting a lawful tenant. The apex court has also taken a similar view in Samir Sobhan Sanyal v. Tracks Trade Private Limited., wherein it was held that if it is proved that a tenant was dispossessed without due process of law. the same must be held to be illegal. in Sri Hanumanthappa v. Sri Maninarayanappa, , the apex court held that no injunction can be granted against a lawful owner of property. As we, keeping in view the facts and circumstances of the case and particularly the conduct of the appellant, agree with the findings of the learned trial Judge, we cannot accept at this stage the explanation of the appellant as regards changes made in his application for injunction. If what has been stated in the copies of injunction application served upon the respondents as also filed before this court are correct, the appellant must be deemed to have accepted the fact that he was not in possession of the premises in question. Probably, having realised the said difficulty, certain changes had been made, may or may not without the leave of court and without the knowledge of court but prima facie we are satisfied that had such changes been made in the original copy at the point of time when the injunction applications were heard, there was no reason for the learned trial Judge to refer to the case of the appellant exactly in the same line as has been stated in the copy of the application appended to the stay application and the copies, which were served upon the respondents. There cannot be any doubt whatsoever that before the court passed such a mandatory injunction and that too at the instance of a defendant, a very strong prima facie case should be made out. The court has to satisfy its conscience that the defendant has been sinned against than sinning. We, in view of the materials on record and particularly in view of clear and unequivocal assertion on the part of the respondent No.2 to the effect that the respondent No. 1 and prior to him. the said Anita Bubna had been tenant and had been occupying the said premises, have no other option but to hold that the defendant had been able to prove his possession either at the lime or immediately prior to the filing of the suit. We may further notice that such a stand had been taken by the respondent No.2 even before the police authorities. Thus, it is not a case where the respondent No. 2, which is an independent organisation had supported respondent No.1 only after filing of the suit. The balance of convenience also in our opinion lies in favour of respondent No.1, in as much as, where as he would be in possession of his business of stock broking from the premises in question, the appellant would not be. The very fact that the respondent No. 1 had also paid a huge amount to the respondent No.2 is evident from the materials on record. The said respondent has also filed documents to show that he had deposited the amount by way of rent as also fees at the rate of Rs. 200/- per square feet No such document could be produced by the appellant before us, nor anything has been shown that either he is a licensed stock broker or the appropriate committee of the respondent No.2 had in fact accepted him as a tenant. Furthermore, the question as to whether the appellant could become a tenant under the respondent No.2, being only one of the sons of late Chiranjllal Jhunjhunwala, is also not free from doubt. We may note that the positive case of the appellant had been that his father had made a declaration in his favour as far back on 10.2.93, but the said case of the appellant had not been believed by the learned trial Judge and we do not find any ground to interfere with the same. In any view of the matter, the legal position, as it stands, is that there is no order of injunction in favour of the appellant, as the application filed by the respondent No.1 under Order 39 rule 4 of the Code of Civil Procedure has also been allowed and no appeal has been preferred against the same by the appellant. The appellant, therefore, without filing an appeal against that, now cannot contend that he has acquired lawful title in respect of the premises in question or he was in lawful occupation thereof, which was the specific case made out by him in his application for injunction.
9. For the reasons aforementioned, we, in view of the special facts and circumstances of the case, do not find any reason to interfere with the impugned judgment. However, keeping in view the nature of controversy and the order passed by the learned trial Judge, which is being affirmed by us, we are of the opinion that the suit itself should be disposed of as expeditiously as possible and not later than 6 months from the date of communication of this order. The respondents must file their written statement, if not already filed, within 2 weeks from date. There will be no order as to costs.
Prayer for stay of operation of the order is considered and refused.
Urgent xerox certified copy, if applied for, be supplied on priority basis.
D.B. Dutta, J.
10. I agree.
11. Appeal disposed of