Calcutta High Court (Appellete Side)
M/S. Keypee Enterprise vs Shri Santosh Kumar Saraogi And Ors on 4 February, 2015
Author: Subrata Talukdar
Bench: Subrata Talukdar
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
PRESENT:
The Hon'ble Mr. Justice Subrata Talukdar
CO 2860 of 2011
M/s. Keypee Enterprise
-vs.-
Shri Santosh Kumar Saraogi and Ors.
For the Petitioner : Sri Aniruddha Chatterjee
Sri. Srijib Chakraborty
For the Opposite Party : Sri Kaushik Dey
Nos.3 & 4 Ms. Indrani Chakraborty
Heard on : 14.07.2014
Judgement on : 04.02.2015
Subrata Talukdar, J.: In this application the petitioner
challenges the order impugned No.45 dated 9th August 2011 passed
by the Ld. 11th Bench, City Civil Court at Calcutta in Title Suit No.
2838 of 2008.
By the order impugned the Ld. 11th Bench was pleased to reject
the application filed by the petitioner as plaintiff praying for police
help under Section 151 CPC. The Ld. Trial Court was of the view that
in a pending matter before this Court connected to the subject
premises being CS 128 of 2008, an Hon'ble Single Bench of this Court
was pleased to appoint a Ld. Special Officer for looking after the
amenities to be enjoyed by the tenants of the subject premises. In
such view of the matter the Ld. Trial Court was of the further view
that since a Ld. Special Officer already stood appointed there is no
need to refer the matter to the police.
Accordingly, the petition under Section 151 CPC stood rejected.
However, the petitioner-plaintiff was granted the relief of invoking the
provisions of Order 39 Rule 2A CPC in the event there is any violation
of the order of injunction.
Shri Aniruddha Chaterjee, Ld. Counsel appearing for the
petitioner draws the attention of this Court to the application under
Section 151 CPC filed on behalf of the plaintiff. He submits that by a
letter of tenancy dated 1st April, 1972 entered into between the
present petitioner-plaintiff-tenant with the present opposite parties-
defendants-landlords, the petitioner was entitled to enjoy the several
amenities and facilities connected to his tenancy in the subject
premises. This said amenities and facilities, inter alia, include the use
of lifts, car parking space, uninterrupted supply of filtered water
through overhead tank etc.
In view of the disturbances created by the OPs-defendant to the
enjoyment of such amenities the petitioner-plaintiff filed for injunction
in connection with the suit for an order restraining the defendants,
their men and agents from creating any disturbance to the peaceful
user of the said amenities.
By order dated 15th July 2008 the Ld. 10th Bench, City Civil
Court was pleased to direct the OPs-defendants to maintain status
quo and such order of injunction was made absolute on 16th
February, 2009. However, in view of the continued curtailment of the
right of user of the amenities by the OPs-defendants, the petitioner-
plaintiff filed an application under Section 151 CPC for
implementation of the order of injunction dated 16th February, 2009.
The said application under Section 151 CPC was allowed on 30th
June, 2009 with a direction to the Officer-in-Charge, Shyampukur
Police Station to ensure that the rights of the petitioner-plaintiff to
enjoy his amenities as a tenant are not interfered with.
Shri Chatterjee further submits that in the meantime the Tenants
Association of the subject premises filed an independent suit being
C.S. No.123 of 2009 before this Hon'ble Court for a decree to frame a
scheme of management for improving the facilities of the subject
premises. By order dated 30th June, 2009 an Hon'ble Single Bench
was pleased to appoint a Special Officer only for the purpose of
supervising the installation of a new lift or repair the existing lift and
to file a report before this Hon'ble Court.
Thereafter by further order dated 6th July, 2009 the Ld. Special
Officer was directed to take physical possession of the machine room
and the apparatus of the lift so that any obstruction caused by the
OPs-defendants is removed.
Being aggrieved by the order dated 30th June, 2009 passed by the
Ld. City Civil Court allowing the application of the petitioner-plaintiff
under Section 151 CPC the OPs-defendants preferred a revisional
application before this Hon'ble Court being CO No.2348 of 2009. By
order dated 26th July, 2010 an Hon'ble Single Bench was pleased to,
inter alia, observe that two suits are proceeding simultaneously in
respect of the subject premises.
The Hon'ble Single Bench took the further view that since a Ld.
Special Officer has been already appointed to supervise the amenities
to be enjoyed by the tenants, a separate relief granted in favour of the
present petitioner-plaintiff under Section 151 CPC over the self-same
subject matter cannot be sustained. The Hon'ble Single Bench was,
however, pleased to grant liberty to the present petitioner-plaintiff to
apply for appropriate reliefs subsequently if the situation so demands.
A review preferred by the present petitioner to the order dated 26th
July, 2010 in CO No.2348 of 2009 stood dismissed.
Shri Chatterjee asserts that taking advantage of the order dated
26th July, 2009 the OPs-defendants-landlords are creating manifold
obstruction to the peaceful enjoyment of the amenities attached to the
tenancy of the petitioner-plaintiff. Taking this Court to the order of the
Hon'ble Single Bench dated 30th June,2009 Shri Chatterjee submits
that the said order was only confined to the use of the lift and did not
touch other amenities such as car parking space, filtered water supply
etc. of the tenancy.
In this connection it will be useful to reproduce the order dated
30th June, 2009.
The Court : report filed by Mr. Subhasish Banerjee
Supervisor of IBIJI Lifts Pvt. Ltd. Be kept on record.
On a reading of the said report it appears that although
an attempt was made to conduct the trial run of the lift
and such trial run was also allowed initially in view of
power failure the said trial run was discontinued for
some time. On restoration of power no further inspection
could be made as the power was intentionally switched
off. Therefore, the inspection could not be conducted nor
has it been possible to give an estimate.
Counsel for the petitioner submits that a Special Officer
be appointed under whom the said inspection may be
carried out.
Counsel for the landlord /respondent submits that
advocates on record of the parties be appointed jointly as Special Officers.
Having considered the submissions of the parties and the report filed by IBIJI Lifts Pvt, Ltd., it will be fit and proper that an independent Special Officer be appointed to implement the order dated 18.06.2009 and for such purposes, Mr. Pradip Chowdhury Advocate, 1st floor, Bar Library Club, High Court is appointed Special Officer at an initial remuneration of 500 GMs. The Special Officer will decide the date of visit after issuing notice to the parties and confirming the date of visit with IBIJI Lifts Pvt. Ltd. The Special Officer will file his report on the next date of hearing.
Matter to appear in the list on 06.07.2009.
Counsel for the petitioner has offered to bear the expenses of repair of the lift. Inspection charges of IBIJI Lifts Pvt. Ltd. be also borne by the petitioner. Special Officer and all parties concerned to act on a signed xerox copy of this order on the usual undertakings.
Shri Chatterjee also takes this Court to the subsequent order dated 6th July 2009 wherefrom taking note of the poor condition of the lifts and the obstructive attitude of the defendants, the Court directed the Ld. Special Officer to take physical possession of the machine room and the apparatus of the lifts.
Shri Chatterjee points out that from the reports of the Ld. Special Officer it is found that there is copious reference to the substance of his job which was only to oversee the condition of the lifts and access to the same.
Shri Chatterjee, therefore, contends that the Ld. 11th Bench City Civil Court fell into patent error by holding that the appointment of the Ld. Special Officer covered the entire gamut of the amenities pertaining to the tenancy of all tenants including the present petitioner. Ld. Counsel reiterated that the order of injunction dated 30th June of 2009 is comprehensive in respect of the coverage of all amenities pertaining to the tenancy of the plaintiff. Incidentally such amenities also includes the aspect of access to and condition of the lifts.
It would be useful at this juncture to extract the operative part of the order dated 30th June 2009 which reads as follows :-
It appears from the agreement entered between the plaintiff and the defendants relating to the tenancy that there are some amenities annexed to the tenancy of the plaintiff towards their enjoyment of residential accommodation in the circumstances, when the order of statusquo was made absolute then there should not be any interference in the enjoyment of those amenities by the plaintiff. Accordingly, the petition under section 151 of the CPC be allowed on contest. The Officer-in-Charge of Shyampukur P.S. is directed to see that there should not be any interference in the amenities enjoyed by the plaintiff annexed to the tenancy.
Shri Chatterjee, therefore, submits that the order impugned being erroneous on such score deserves to be set aside. Ld. Counsel urges this Court to take note of the fact that under the letter of tenancy dated 1st April, 1972 the petitioner is lawfully entitled to enjoy all the amenities pertaining to his tenancy.
Per contra Shri Kausik Dey, Ld. Counsel for the OPs-defendants argues that simultaneous to this application under Section 151 CPC the present petitioner-plaintiff has also filed an application under Order 39 Rule 2A CPC which is pending. Ld. Counsel submits that till the application under Order 39 Rule 2A is decided there is no requirement of seeking police help under Section 151 CPC. He, therefore, submits that the application under Section 151 CPC is not maintainable and, derivatively the present CO No. 2860 of 2011 is also not maintainable.
Shri Dey points out that no instance of violation of the order of status quo has been recorded by the Ld. Trial Court. In support of his contentions, including the argument that violation of an order of injunction can only be complained of in an application under Order 39 Rule 2A CPC, Shri Dey relies upon the decision of this Court reported in 2000 Volume 2 CLJ Page 131 in the matter of Ashoke Ghosh & Ors. Vs. Gopinath Ghosh & Ors. and 2012 Volume 1 CHN (CAL) Page 300 in the matter of Joydev Das Vs. Khandubala Das.
Having heard the parties and considering the materials on record this Court is of the considered view that the petitioner-plaintiff has the right to enjoy the amenities of his tenancy arising out of the letter of tenancy dated 1st April, 1972. This Court has also given its anxious consideration to the true intent of the order dated 30th June 2009 and 6th July 2009. This Court finds that both the orders were only directed towards the maintenance, operation and access to the lifts alone. The Ld. Special Officer was also appointed to oversee only this aspect of the matter.
The true purport and intent of the orders dated 30th June 2009 and 6th July 2009 clearly appears in the report of the Ld. Special Officer at the meeting dated 22nd June 2012. The Ld. Special Officer, inter alia, recorded as follows :-
It is pertinent to mention here that the undersigned is appointed only (emphasis supplied) in respect of lift facility and/or service at the subject premises and not with regard to any other amenity/amenities of the tenancies of various tenants of the subject premises.
In the light of the above facts and circumstances this Court cannot be in agreement with the order impugned dated 9th August, 2011 that the matter of use of the other amenities, excluding the lifts is beyond the purview of an application for police help under Section 151 CPC. To the mind of this Court it is by now trite law that for enforcement of an order of injunction recourse may be had to the provisions of Section 151 CPC. Reference may be had in this regard to the decisions reported in 85 CWN 958 and AIR 1993 CAL 288.
This Court further notices that the order of 30th June 2009 (supra) of the Ld. City Civil Court covers the free use of all the amenities by the petitioner-plaintiff. It does not require deep forensic examination to hold that out of such amenities only the lifts are the subject matter of adjudication in a separate suit before this Hon'ble Court and, for such purpose the Ld. Special Officer has been appointed. Therefore, the petitioner-plaintiff should not be fettered from claiming use of other amenities through an application for police help, which do not fall within the domain of the Ld. Special Officer.
Therefore, in its wisdom the Hon'ble Single Bench of this Court while passing the order dated 26th July, 2010 was pleased to grant liberty to the petitioner-plaintiff (Opposite party no.1 in CO No. 2048 of 2009) to apply for the self-same reliefs subsequently if the situation so demands. Pursuant to such liberty the petitioner-plaintiff approached the Ld. Trial Court with an application under Section 151 CPC for implementation of the order dated 16th February, 2009 which directed enjoyment of such the amenities. Such relief was erroneously refused by the order impugned dated 9th August 2011.
In the backdrop of the above discussion the order impugned dated 9th August 2011 is set aside. The Ld. 11th Bench, City Civil Court is directed to reconsider the reliefs claimed by the petitioner- plaintiff in its application under Section 151 CPC in the light of the observations made above in this order. It is, however, made clear that the Ld. 11th Bench City Civil Court shall be free to decide on the merits of the respective claims.
CO 2107 of 2011 is accordingly stands allowed. There will be, however, no order as to costs.
Urgent Xerox certified photocopies of this judgment, if applied for, be given to the parties upon compliance of all requisite formalities.
(Subrata Talukdar, J.)