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2004 DIGILAW 452 (CAL)

SETH MEHTA PVT. LTD. v. STANDARD CHARTERED BANK

2004-07-08

ASOK KUMAR GANGULY, TAPAN KUMAR DUTT

body2004
ASOK KUMAR GANGULY, J. ( 1 ) THIS appeal is directed against a judgment and order dated 21st March, 2002 passed in Title Suit No. 1465 of 2002 by the learned judge, 7th Bench in the City Civil Court at Calcutta. By the judgment and order under appeal the learned Judge vacated the ad interim order of injunction which was passed on 30th August, 2000. By the order dated 30th August, 2000 the learned Judge, on the application of the plaintiff-appellant, granted an ad interim exparte order of injunction restraining the defendant from obstructing the plaintiff from clearing the garbage on the common passage of the plaintiff and also from repairing the pipeline and the sewerage system. ( 2 ) UPON being served with the ad interim order of injunction, the respondent-bank filed an application under Order 39 Rule 4 and thereafter the order under appeal was passed. Prior to the filing of this appeal, another appeal (FMAT No. 2943 of 2001) was filed at the instance of the Standard chartered Bank (hereinafter referred to as the said 'bank') before this Court. On the said appeal a Division Bench of this Court, after hearing the parties, by an order dated 5th September, 2000, directed the learned Trial Judge to hear out the temporary injunction application filed by the plaintiff as also the application under Order 39 Rule 4 filed by the respondent-bank. The learned judge of the Division Bench also appointed an advocate of this Court the Special officer and the learned Judge directed that under the supervision and control of the Special Officer, the plaintiff may remove the garbage from the passage in question and may also repair the pipeline and the sewerage lines if the same is existing and is repairable. ( 3 ) THE above appointment of the Special Officer was made by the Court in view of a submission made before the previous Division Bench by the learned counsel for the respondent-bank that under the garb of the impugned order the plaintiffs were trying to construct an underground reservoir. Thereupon the said Division Bench directed if the Special Officer finds out that the same is true, in that case, the Special Officer may stop that construction forthwith and the plaintiffs were directed to abide by the order of the Special Officer. Thereupon the said Division Bench directed if the Special Officer finds out that the same is true, in that case, the Special Officer may stop that construction forthwith and the plaintiffs were directed to abide by the order of the Special Officer. However, the Special Officer in his report dated 15th September, 2000 permitted the plaintiff only to repair the water pipelines and the sewerage lines and made it clear that the plaintiff shall not replace the existing pipelines and sewerage lines but was only permitted to repair the same and the plaintiffs were permitted to remove the garbage lying in the passage in question. ( 4 ) THE case which has been made out in the plaint by the plaintiff-appellant is that there lies a common passage between Netaji Subhas Road and India exchange Place as has been shown in a sketch map which is at Annexure 'a' to the plaint. In the plaint it has been averred that by a lease dated 7th August, 1936 between Shri Bejoy Chand Mahtab, Maharaja of Burdwan and Maharaj uday Chand Mahtab, representing the Management of Burdwan Maharaja estate and the M/s. Mitters Ltd. , 8, Lyons Range was demised to the said lessee. Ultimately the said premises 8, Lyons Range was separated and renumbered as 8, Lyons Range and 16, India Exchange Place, Calcutta and finally by a deed of transfer dated 17th June, 1964,16 India Exchange Place was transferred to Ramkrishna Mission as a lessee. ( 5 ) IT has been averred in the plaint that in the month of March, 2000, the plaintiff entered into an arrangement with Ramkrishna Mission and took over the right of. the Ramkrishna Mission and it was further claimed that the plaintiffs were enjoying the property as all the rights of Ramkrishna Mission allegedly vested in them. The claim in the plaint is that there is a common passage between premises No. 4, Netaji Subhas Road in which the building of the bank is situated and 16, India Exchange Place which is in the occupation of the appellant. The plaintiff wanted to undertake repairing on the common passage on 26th August, 2000 and they were prevented from doing so by -the representatives of the bank and as a result the Police was informed and an FIR was filed by the plaintiff No. 2. The plaintiff wanted to undertake repairing on the common passage on 26th August, 2000 and they were prevented from doing so by -the representatives of the bank and as a result the Police was informed and an FIR was filed by the plaintiff No. 2. It was also stated by the plaintiff that from the corporation records it appears that the common passage is meant to be used by the owners and occupants of the premises adjoining the common passage and as such a declaration was claimed in the plaint that the bank does not have an exclusive right to use the common passage and the said common passage is meant for the inhabitants of the adjoining building including the inhabitants of premises No. 16, India Exchange Place. The said claim of the plaintiff was very strongly denied by the bank in its pleading. ( 6 ) THE learned Judge of the First Court, in the order under appeal, recorded that it was not possible for the Court to ascertain the correctness of the assertion made in injunction petition without taking evidence. The learned Judge also came to the finding that the plaintiff did not produce any cogent document from the Calcutta Municipal Corporation regarding any of its right on passage. The learned Judge also recorded that the averments in the plaint that the plaintiff by way of arrangement with Ramkrishna Mission took over the charge of the property, is not borne out from the records and no such document of the arrangement was produced before the Court. When the matter has been heard before this Court, the learned Counsel for the appellant filed a Supplementary paper Book containing therein some documents. In the said Supplementary paper Book the appellant wanted to introduce a deed of assignment dated 4th april, 2000 between Ramkrishna Mission and M/s. Seth Mehta and Co. Pvt. Ltd. It is not in dispute that the said deed of assignment was not placed before the learned Trial Judge nor was the said deed of assignment even referred to in the plaint filed before the learned Trial Judge. The learned Counsel for the appellant wanted to invoke the provisions of Order 41 Rule 27 of the Civil Procedure code and submitted that the Appeal Court may take into consideration the said material. In fact, no application was filed to that effect when the hearing was going on. The learned Counsel for the appellant wanted to invoke the provisions of Order 41 Rule 27 of the Civil Procedure code and submitted that the Appeal Court may take into consideration the said material. In fact, no application was filed to that effect when the hearing was going on. On the last date of hearing i. e. 16th June, 2004 an application was filed with a prayer to introduce the document which were annexed in the supplementary Paper Book and a prayer was also made to rely on the said documents. This Court has gone through the said application but in the said application, this Court finds, no case has been made out for this Court to take into account those documents under the provisions of Order 41 Rule 27 of the code. ( 7 ) THE Provision of Order 41 Rule 27 of the Code cannot be invoked by an appellant as a matter of right. Normally the parties to an appeal are not entitled to produce additional evidence, either oral or documentary in the Appeal Court. This is the general rule. Certain exceptions to this general rule have been carved out in clauses (a), (aa), and (b) of the rule. This case does not fall under any one of the exceptions. It is nobody's case that the learned Trial Judge refused to admit any evidence. Nor could it be said that the evidence sought to be introduced was not within the knowledge of the appellant despite exercise of due diligence by the appellant. The case is also not covered under the last clause, namely clause (b), inasmuch as this Court does not require the document to enable it to pronounce judgment. ( 8 ) IN that view of the matter, this Court does not find any merit in the application filed by the appellant on the last day of hearing. So, the said application, being CAN 4893 of 2004 is rejected, as being devoid of any merit. ( 9 ) IN the course of hearing, this Court, by an order dated 11th May, 2004, appointed a Special Officer for going to the spot and making an enquiry in the presence of the Counsel for the parties. The Special Officer was asked to ascertain about supply of water to the tenants and for that purpose the Special officer was to take the assistance of an Engineer if necessary. The Special Officer was asked to ascertain about supply of water to the tenants and for that purpose the Special officer was to take the assistance of an Engineer if necessary. ( 10 ) UPON such inspection on 15. 5. 04, the Special Officer submitted a report, the relevant portion of the same are set out below:" (I) On the northern side of premises No. 16, India Exchange Place, kolkata - 700 001, there is a passage (of about 20 ft.) width from east to west, and at both ends of the said passage there are locked iron grill gates. (ii) There are two sets of gully pits (each set having two gully pits) on the said passage on the northern side of the said premises. (iii) All the four pits were almost chocked. (iv) Two gully pits nearer to the premises No. 4, N. S. Road, Kolkata-700 001, are connected to a master trap outside the locked gate on the eastern side of the said passage. The fact that the said two gully pits are connected to the said master trap was evident from the flow of water through the said two gully pits (nearer to 4, N. S. Road, kolkata - 700 001) to the outer master trap. (v) There are two other gully pits on the said passage and nearer to premises No. 16, India Exchange Place, Kolkata - 700 001. The said two gully pits are connected to another master trap outside the locked gate on the eastern side of the said passage. The fact that the said two gully pits (nearer to premises No. 2, India Exchange Place, kolkata - 700 001) were connected to the second master trap was evident from the flow of water through the said two actual pits to the said second master trap. (vi) Details of the approximate location of four gully pits on the said passage and approximate direction of water flow through them are shown in the sketch as recorded in the Minutes of the meeting dated may 15, 2004. (vi) Details of the approximate location of four gully pits on the said passage and approximate direction of water flow through them are shown in the sketch as recorded in the Minutes of the meeting dated may 15, 2004. " ( 11 ) INSOFAR as supply of water is concerned, the Special Officer found that three tenants, namely (a) Banwari Lal Pasari, (b) Indian Sweets, c) Kaka Tea have separate water connection from Kolkata Municipal Corporation from water pipes running under Lyons Range and one Prayag, the tenant of the Tea shop on the north-west corner of premises No. 16, India Exchange Place, Kolkata has underground reservoir and pump. The Special Officer found that there is evidence of water coming to the reservoir. ( 12 ) THE Special Officer also found that the exact position of the water pipe cannot be ascertained without digging the passage. ( 13 ) NO one filed any objection to the Special Officer's report, though the learned Counsel for the appellant casually criticised the report by saying what the Special Officer should have done. However, the Court proceeds on the basis that the report of the Special Officer reflects the true position. ( 14 ) THE learned Counsel for the appellant argued the case primarily on two points: (A) The passage between the building of the respondent-bank and 16, India exchange Place is a common passage and the appellants have all the rights on the same. (b) There are about 250 tenants in 16, India Exchange Place (hereinafter called the said premises) and they are without adequate supply of water. So the Court should allow the appellant to clean the chocked water pipes and gully pits which are under the said common passage so that adequate supply of water could be restored. ( 15 ) THIS Court is unable to appreciate either of these two contentions of the learned Counsel for the appellant. ( 16 ) NO tenant has come either before us or before the first Court complaining of inadequate supply of water. Even when the Special Officer went to the building on 15. 5. 04 with notice to the parties, no tenant complained to him about inadequate water supply. The few tenants whom the Special Officer found on the premises had adequate and independent supply of water. So the case of 250 tenants suffering without water is not made out. Even when the Special Officer went to the building on 15. 5. 04 with notice to the parties, no tenant complained to him about inadequate water supply. The few tenants whom the Special Officer found on the premises had adequate and independent supply of water. So the case of 250 tenants suffering without water is not made out. In this connection, this Court is inclined to accept the submission of the learned Counsel for the respondent that in the event 250 tenants existed in the premises without supply of water, the factual scenario would have been different. ( 17 ) ABOUT the right of the plaintiff-appellant on the passage, we are of the view that no such case has been made out either in the plaint or in the injunction petition in the first Court. The plaintiff-appellant only referred to Corporation records in support of its case on common passage. It is well-known that corporation records cannot establish any one's right, title or interest on immoveable property. ( 18 ) THE learned Counsel for the respondent has drawn the attention of this court to various documents namely the indenture dated 12. 02. 1905 between the Maharaja of Burdwan and the respondent-bank and submitted that what is claimed as a common passage by the plaintiff-appellant is nothing but a private road which the respondent-bank is entitled to enjoy. This, according to the learned Counsel, is clear from the schedule to the said indenture. The learned counsel further submitted that there is nothing on the documents on which the plaintiff-appellant relied to show that the said private road is a common passage. ( 19 ) IN fact, the documents of the Municipal Corporation are hardly ever decisive of the title of the parties. Apart from that the documents of the corporation which have been disclosed here by the plaintiff are routine and statutory documents relating to maintenance and repair of underground pipes and have nothing to do with the rights of the parties. ( 20 ) SO on the basis of those documents this Court cannot say that the order of the learned Judge of the first Court is unwarranted nor does it call for any interference by this Court. ( 20 ) SO on the basis of those documents this Court cannot say that the order of the learned Judge of the first Court is unwarranted nor does it call for any interference by this Court. ( 21 ) BUT having regard to the question of supply of water, we make it clear that the parties may apply to the Kolkata Municipal Corporation for cleaning and repairing the pipes and/or gully pits. If such a prayer is made, the corporation authorities may consider the same in accordance with law and take such steps as are provided in the law and in public interest. If the corporation feels, independently of the dispute between the parties, that any repair work is necessary, the same may be undertaken under the supervision and control of the Corporation and such work will not in any way affect or alter the rights of the parties in the pending suit. ( 22 ) THIS Court makes it clear that whatever observations have been made in this judgment, were made for disposal of this appeal from the interlocutory order. Nothing said in the order will affect the rights of the parties in the pending suit. ( 23 ) SUBJECT to the above observation, the appeal is dismissed. ( 24 ) THERE will be no order as to costs. Appeal dismissed.