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2005 DIGILAW 129 (CAL)

ANIL KUMAR DEY v. BIDHU BHUSAN DAS

2005-02-24

JYOTIRMAY BHATTACHARYA

body2005
J. BHATTACHARYA, J. ( 1 ) AN order dated 12th April 2002 passed by the learned Civil Judge (Senior Division), 3rd Court at Howrah in miscellaneous Appeal No. 296 of 1998 affirming the order dated 4 september 1998 passed by the learned Civil Judge (Junior Division), 1st Court at Howrah in Title Suit No. 3 of 1997, is under challenge in this revisional application. ( 2 ) THE petitioner herein is the plaintiff in a suit for declaration of his tenancy right in respect of the suit property and for permanent injunction. ( 3 ) AFTER filing the said suit, the petitioner filed an application under order 39 Rules 1 and 2 read with section 151 of the Code of Civil procedure, inter alia, praying for an order of temporary injunction for restraining the defendant/opposite party No. 1 and his men, agents from interfering and/or disturbing the peaceful possession of the plaintiff in respect of the suit property. ( 4 ) THE learned trial Judge by his order being Order No. 2 dated 10th January 1997 was pleased to pass ad-interim order of injunction on the said application and thereby restrained the defendant No. 1 from disturbing the peaceful possession of the plaintiff in respect of the suit premises till disposal of the said injunction petition. ( 5 ) SUBSEQUENTLY, however, by an order vide No. 16 dated 27th may 1997 passed by the learned trial Judge, both the parties were directed to maintain status quo in respect of possession in the suit property till disposal of the suit. ( 6 ) DURING the continuance of the said order of injunction, the plaintiff was dispossessed from the suit property by the defendant/ opposite party No. 1 on 6th April 1997 in violation of the order of injunction. As such, the petitioner filed an application for temporary mandatory injunction for restoration of his possession in the suit property. ( 7 ) THE said application of the plaintiff/petitioner was allowed by the learned trial Judge on 4th September 1998 after a contested hearing. The said order of restoration was also affirmed by the learned appellate Court on 12th April 2002. ( 8 ) THE said order of mandatory temporary injunction is under challenge in the revisional application. ( 9 ) HEARD the learned Advocates of the respective parties and considered the materials on record. The said order of restoration was also affirmed by the learned appellate Court on 12th April 2002. ( 8 ) THE said order of mandatory temporary injunction is under challenge in the revisional application. ( 9 ) HEARD the learned Advocates of the respective parties and considered the materials on record. ( 10 ) ON perusal of the order of both the Courts below passed in connection with the petitioner's said application for temporary mandatory injunction, it appears that both the Courts below passed and/or maintained the said order of temporary mandatory injunction by holding concurrently that the plaintiff/petitioner was dispossessed from the suit property by the opposite party at a point of time when the order of injunction was in force. ( 11 ) MR. Karmakar, learned advocate, appearing for the petitioner, by drawing my attention to the judgment and order of the learned trial Court tried to impress upon this Court that in the absence of any specific finding to the effect that the petitioner was in fact in possession of the suit property on the date when the order of injunction was passed and he was dispossessed from the suit property in violation of the order of injunction during the subsistence of such order of injunction, an order of mandatory temporary injunction for restoration of possession cannot be passed. ( 12 ) MR. Karmakar further pointed out from the judgment and order of the learned trial Court that the trial Court found that the petitioner was in possession of the suit property up to 30th October 1987 but what was the actual state of position, as on the date of passing of the order of injunction, i. e. , 10th January 1997, was not ascertained by either of the learned Courts below. ( 13 ) THUS, Mr. Karmakar submitted that the order impugned cannot be supported, as no order of restoration of possession can be passed without ascertaining as to whether a party in whose favour such order of restoration was passed, was in fact in possession of the suit property on the date of passing of the order of injunction and further as to whether such party in possession was dispossessed in violation of the order of injunction at a point of time when the order of injunction was in force. ( 14 ) ON perusal of the materials on record as well as the orders of both the learned Courts below, I find that the above submission of Mr. Karmakar is devoid of any substance, as I find that both the Courts below after considering the materials on record found that admittedly the petitioner was in possession of the suit property up to 30th October 1987 and his dispossession therefrom subsequently up to the date of passing of the order of injunction, could not be proved by the opposite party. On the contrary, both the learned Courts below found that the various documents produced by the petitioner in connection with the said proceeding show that the petitioner was in possession of the suit property till 6 April 1997 when he was dispossessed by the opposite party No. 1 in violation of the order of injunction. ( 15 ) THAT apart, the opposite party No. 1 himself filed an application for amendment of his plaint of his suit on 17th February 1995 seeking permission to introduce an additional prayer therein for a decree for eviction of the petitioner from the suit property by describing the petitioner as a licensee in respect of this suit property. It is, however, true that the said suit was ultimately dismissed for default but the admission made by the petitioner in the said proceeding surely goes to show that the petitioner was in possession of the suit property at least on 17th February 1995 when the opposite party No. 1 sought for a decree for eviction against the petitioner from the suit property. Along with the said admission, if the other documents of possession which were produced by the petitioner in connection with the said proceeding are considered, then there cannot be any reason to disbelieve that the petitioner was not in possession in the suit property, as on the date when the injunction was passed and he was in fact dispossessed from the suit property by the opposite party No. 1 in violation of the said order of injunction when the said order of injunction was in force. ( 16 ) IT is, however, not out of place to mention here that even the proceeding under section 47 of the Code of Civil Procedure which was initiated by the opposite party No. 1 against the executability of the said order of mandatory injunction for restoration of possession, has also been rejected by the learned executing Court and was subsequently affirmed by this Hon'ble Court in revision. ( 17 ) IN such view of the matter, I find no substance in this application, particularly in view of the principle as laid down by the division Bench of this Hon'ble Court in the case of Sujit Pal v. Prabir kumar Sen, reported in AIR 1936 Cal 220, wherein. in paragraph 11 thereof it was held as follows :"11. Thus it is apparent from the said observation of the Supreme court that no technicality can prevent the Court from doing justice in exercise of its inherent power. Order 39, Rule 2a lays down a punitive measure for the purpose of compelling a party to comply with the order of injunction. The process as contemplated by the said provision may or may not be ultimately effective but, in any event, the procedure laid down in Order 39, Rule 2a is incapable of granting an immediate relief to a party who has been forcibly dispossessed in violation of an order of injunction. We do not think that in such a case the Court is powerless to grant relief to the aggrieved party in exercise of its inherent power. The very object for which Order 39, Rule 2a has been enacted will be fulfilled by the grant of a temporary mandatory injunction and restoration of possession of the aggrieved party. The inherent power of the Court as recognised in section 151 of the Code is in addition to the power conferred on the Court under the provisions of the Code. All that the Court is concerned is to prevent abuse of the process of Court and to do justice by immediately intervening under circumstances which require such intervention by the Court. "accordingly, this revisional application stands rejected. There will be, however, no order as to costs. Urgent xerox certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard. Application rejected