Calcutta High Court (Appellete Side)
Ila Bhowmik & Another vs Millenium Road Construction Pvt. Ltd. ... on 29 September, 2011
Author: Subhro Kamal Mukherjee
Bench: Subhro Kamal Mukherjee
Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
Appellate/Revisional/Civil Jurisdiction
Present:
The Hon'ble Mr. Justice Subhro Kamal Mukherjee
And
The Hon'ble Mr. Justice Mrinal Kanti Sinha
F.M.A.T 1081 of 2011
with
CAN 8378 of 2011
with
CAN 9042 of 2011
Ila Bhowmik & another
... appellants
Versus
Millenium Road Construction Pvt. Ltd. and others
... Respondents.
For the appellants: Mr. Aniruddha Chatterjee,
Mr. Rahul Karmakar.
For the respondent no. 1: Mr. S. P. Roy Chowdhury.
Mr. Sourav Sen.
For the respondents no. 2 & 3: Mr. Barin Banerjee,
Ms. Sima Chakraborty.
Heard on: September 26, 2011.
Judgment on: September 29, 2011.
Subhro Kamal Mukherjee, J.
This is an appeal against order no. 2 dated August 25, 2011 passed by the learned Judge in-charge, Tenth Bench, City Civil Court at Calcutta in Title Suit No. 1609 of 2011.
By the order impugned, the learned trial judge declined to pass an ex parte ad interim order of injunction in connection with an application for temporary injunction.
This litigation has a chequered history.
One Suhas Chandra Bhowmik was the owner of 3 cottah 10 chittak and 9 square feet of land being municipal premises no. 1A, Ram Krishna Das Lane, within the Police Station Amherst Street, Kolkata - 700009, with a two-storied brick built structure thereon. On the death of the said Suhas Chandra Bhowmik, the said property devolved upon his natural heirs and legal representatives.
The widow and the son of the original owner, namely, the plaintiffs/appellants, by a registered deed of conveyance dated January 7, 2006, conveyed, in favour of the defendant no. 1/respondent no. 1, half portion of the northern side with two storied brick built house comprised of two rooms on the front side and two rooms on the back side in the ground floor; two rooms on the back side (Western side) in the first floor with privy and bath in the ground floor and half portion of the courtyard in the ground floor with separate staircase on north-western side covering a total area of 1 cottah 13 chittack. It was mentioned that a total area of 1308 square feet, more or less, was conveyed out of which covered area was 850 square feet be the same little more or less.
After acquiring the property in suit, by virtue of the said deed of conveyance, the defendant no. 1 demolished the old structure and encircled his purchased area.
On the allegation that the defendant no. 1 was making construction without leaving 4′6′′ space, the plaintiffs filed Title Suit No. 5091 of 2008. It was stated in the plaint of the said suit that the defendant no. 1 was going to start construction keeping only 4′ gap in between the two premises, instead of 4′6′′ gap and thereby the defendant no. 1 was taking the advantage of 6′′ space of the plaintiffs.
In the said suit, the plaintiffs, inter alia, prayed for a declaration that the plaintiffs were the exclusive owners of the 6′′ space beside the northern side boundary-cum-plinth wall of the suit premises and exclusive owners of the projected boundary wall of the north-east corner of the eastern side boundary wall of the suit premises.
On such allegation, in the said Title Suit No. 5091 of 2008, an application for temporary injunction was moved, inter alia, seeking to restrain the defendant no. 1 in this suit from making any construction by keeping only 4′ gap instead of 4′6′′ gap in between the two premises.
We are informed that in connection with the said application for temporary injunction, the learned trial judge declined to pass any ex parte ad interim order of injunction. Moreover, upon final hearing, the learned judge of the Tenth Bench, City Civil Court at Calcutta, by judgment and order dated May 23, 2011, rejected the application for temporary injunction, expressly, holding that the plaintiffs failed to make out any prima facie case for passing an order of injunction.
The plaintiffs, in the earlier suit, instituted the present suit being Title Suit No. 1609 of 2011. In this suit, the Kolkata Municipal Corporation authorities have, also, been impleaded as the defendants. In this suit, the plaintiffs, inter alia, have prayed for a declaration that the plaintiffs are the owners of 11′′ space beside the northern side boundary-cum-plinth wall leading from east to west and the defendant no. 1 has no right to encroach the said 11′′ space of the plaintiffs and, also, the defendant no. 1 has no right to take advantage of the said 11′′ space for the purpose of obtaining sanction plan for its proposed building.
In connection with such suit, an application for temporary injunction was moved, inter alia, seeking to restrain the defendant no. 1 from making any construction keeping only 4′ gap instead of 4′11′′ gap in between the two premises.
This suit is based on the allegation that the defendant no. 1 has obtained a sanctioned plan from the Kolkata Municipal Corporation by misrepresenting the corporation authorities and was making construction keeping 4′ gap instead of 4′11′′ gap in between the two premises.
The learned trial judge, as we have indicated hereinabove, declined to pass an ex parte ad interim order of injunction in connection with the application for temporary injunction.
We have heard Mr. Aniruddha Chatterjee, learned advocate appearing in support of the plaintiffs/appellants, Mr. Syama Prasanna Roy Chowdhury, learned senior advocate appearing for the defendant no. 1/respondent no. 1 and Mr. Barin Banerjee, learned advocate appearing for the Kolkata Municipal Corporation authorities, who are the respondents no. 2 and 3 in this appeal.
We do not think, in the facts and circumstances of the case, that the learned trial judge exercised his discretion erroneously in refusing to pass an ex parte ad interim order of injunction in connection with the present suit.
We have perused the plaint and the application for temporary injunction filed in connection with the present suit. There was no whisper about filing of the earlier suit and the application for temporary injunction in such suit. It was not stated either in the plaint or in the application for temporary injunction that earlier a suit was instituted and injunction was refused in such suit. Of course, in the present suit, the Kolkata Municipal Corporation authorities are the parties, but they were not parties in the earlier suit.
When all the endeavours, in substance, of the plaintiffs are to resist the defendant no. 1 from making any construction even on the strength of sanctioned building plan, in our opinion, for the purpose of obtaining an ex parte ad interim order of injunction, the plaintiffs ought to have disclosed the fact of filing of the earlier suit and the order of rejection of the application for temporary injunction filed in connection with such suit.
We are not impressed with the submissions of Mr. Chatterjee, learned advocate for the appellants, that such omission was bona fide inasmuch as the plaintiffs did not think that those averments are relevant in this suit.
In this connection, we can profitably refer to the decision in Bengal Club limited versus Susanta Kumar Chowdhary reported in A.I.R. 2003 Calcutta 96, wherein a Division Bench of this court observed :-
"38. The question of pleading is of great importance in the context of an ex parte application for injunction. At that stage, proceedings before the Court raised on the basis of total good faith on the pleadings. At that stage, there is no contested hearing, therefore, the party making the prayer for ex parte ad interim order of injunction must plead the entire facts of the case. Such pleading must be clear, complete and candid. Therefore, if in a given case a party obtains an ex parte ad interim order of injunction from the court on the basis of pleadings which do not disclose the correct state of facts with sufficient candour and clarity and if against such an order an appeal is filed before the appellate court, this court fails to understand why the appellant filing such appeal should accept the pleadings of the plaintiff at the ex parte stage as sacrosanct and cannot point out before the appeal Court that the plaintiff before the Trial Court suppressed facts."
Mr. Chatterjee, vehemently, argues that a serious prejudice would be caused to his clients, unless an order of injunction is granted. He draws our attention to the report of a Chartered Engineer, which is annexure "F" to the application for injunction filed in connection with this appeal.
The Chartered Engineer opined that there was gross discrepancy in the sanctioned plan and there was some encroachment of land, where no construction could be made. The report of the Chartered Engineer was obtained by the plaintiffs. The Chartered Engineer did not hold the inspection with notice to the defendants. The defendant no. 1 had no occasion to deal with such report. Without giving an opportunity to the defendant no. 1 to deal with the report, injustice will be made, if we use the report of the Chartered Engineer obtained by the plaintiffs. It does not, prima facie, appear to us from the report that the Chartered Engineer had access to the portion of the defendant no. 1 purchased by virtue of the deed dated January 7, 2006.
We are of the opinion that the plaintiffs, in the present suit, ought to have referred to filing of the earlier suit and the order passed in connection with the application for temporary injunction filed in connection with such suit. We are, further, of the opinion that on this ground alone, the order refusing to pass ex parte ad interim order of injunction should be affirmed.
We do not find any merit in this appeal and the appeal is, therefore, dismissed. The order refusing to pass an ex parte ad interim order of injunction stands affirmed.
The learned trial judge is, however, requested to dispose of the application for temporary injunction as expeditiously as possible.
By way of abundant caution, we make it clear that we have not gone into the merits of the claim and the counter claim of the parties involved either in the present suit or in the application for temporary injunction and all points for consideration are left open to be considered by the learned trial judge on merits and in accordance with law.
In view of dismissal of the appeal, all connected applications become infructuous and those are disposed of accordingly.
There will be no order as to costs.
Let xeroxed plain copies of this order duly countersigned by the Assistant Registrar (Court) be made available to the learned advocates for the parties on their usual undertakings and for taking steps in the matter.
(Subhro Kamal Mukherjee, J.) Mrinal Kanti Sinha, J.
I agree.
( Mrinal Kanti Sinha, J. )