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2005 DIGILAW 704 (CAL)

Loucal Promoter Pvt. Ltd. v. Gautam Dudhoria.

2005-11-23

ARUN KUMAR BHATTACHARYA, BHASKAR BHATTACHARYA

body2005
Judgement BHASKAR BHATTACHARYA, J. :- This first miscellaneous appeal is at the instance of the plaintiffs in a suit for declarations and permanent injunction and is directed against order dated 31st March, 2005 passed by the learned Judge, 5th Bench, City Civil Court at Calcutta in Title Suit No. 264 of 2004 thereby dismissing an application under Order 39, Rules 1 and 2 of the Code of Civil Procedure filed by the present appellants and vacating the interim order earlier granted therein. 2. The present appellants filed the aforesaid suit for declarations, inter alia, that the defendants, their men, agents and servants had no right or authority to break and open the boundary wall which runs from the east to the west on the southern side of the premises Nos. 8/1 and 8/1/1 and northern side of the premises Nos. 8/1/2 and 8/1/3. Loudon Street, Calcutta-700 017 and that the private passage of premises Nos. 8/1/1 and 8/1/2 of Loudon Street is for the exclusive use of the plaintiffs and the occupiers of the premises No. 8/1/1, Loudon Street. The appellants further prayed for declaration that the respondents, their men, agents and servants were not entitled to use the said private passage and for permanent injunction restraining the defendants from breaking open the wall of premises No. 8/1/3, Loudon Street on the northern and from encroaching upon the said passage. 3. The case made out by the appellants may be summed up thus : (a) The appellants are the lessees in respect of the premises No. 81/2, Loudon Street and defendant Nos. 3 to 14 are the owners and occupiers of the adjoining premises on the eastern side being Nos. 8/1/3, Loudon Street. (b) There is a private passage for the exclusive use of plaintiffs and occupiers of premises No. 8/1/1. Loudon Street, Calcutta and apart from plaintiffs and occupiers of premises No. 8/1/1 none has the right to use the said passage and that such passage belongs only to the plaintiffs and occupiers of premises No. 8 8/1/1. (c) The occupiers of 8/1 and 8/1/3, Loudon Street have separate passage for their easy ingress and egress direct from the Loudon Street. (d) The said private passage runs between the boundary wall of premises Nos. 8/1 and 8/1/1 situated on the northern side and that of premises Nos. (c) The occupiers of 8/1 and 8/1/3, Loudon Street have separate passage for their easy ingress and egress direct from the Loudon Street. (d) The said private passage runs between the boundary wall of premises Nos. 8/1 and 8/1/1 situated on the northern side and that of premises Nos. 8/1/2 and 8/1/3 Loudon Street situated on the southern side leading from east to west. (e) The defendants their men, agents and servants were trying to break and open the boundary wall of premises No. 8/1/3 and install a gate for the use of the said private passage and was trying to use the said private passage. Hence the suit. 4. On the basis of the selfsame allegations contained in plaint, the appellants came out with an application under Order 39, Rules 1 and 2 of the Code of Civil Procedure thereby praying for temporary injunction restraining the defendants from breaking open the boundary wall of premises No. 8/1/3 for the purpose of encroaching upon the said common passage. 5. The learned trial Judge initially granted an ad interim order of status quo as regards the boundary wall. 6. The said application for injunction was contested by the respondents by filing written objection thereby denying the aforesaid allegations made in the application for injunction and the objection taken by the respondents may be summed up thus : (i) The disputed passage is not a private passage at all but is a common passage and strip of land appertaining to the premises of the defendants being Premises no 8/1/3, constructed with basement which has two ramps for the use of the vehicles, the one ramp opens in the northern side i.e. towards the common passage and the other ramp leads to southern side i.e. Moira Street. The northern boundary wall of premises No. 8/1/3 was constructed along with Iron Gate for the purpose of facilitating egress and ingress of the vehicles through the ramp when the construction of the defendants premises commenced prior to the commencement of the construction of premises No. 8/1/2. The northern boundary wall of premises No. 8/1/3 was constructed along with Iron Gate for the purpose of facilitating egress and ingress of the vehicles through the ramp when the construction of the defendants premises commenced prior to the commencement of the construction of premises No. 8/1/2. (ii) The said common passage was all along used by the owners and occupiers of the premises No. 8/1/3, Loudon Street, Calcutta and the iron gate fixed in the boundary wall on the northern side of the building was covered by three inch wide brick wall for the purpose of safety and security, in order to avoid pilferage and theft in the building. (iii) For the purpose of safety and security, the Iron Gate was temporarily covered from the northern side by three inch thick brick built wall for the time being. The allegations of the plaintiffs, that the common passage is a private passage only for premises Nos. 8/1/1 and 8/1/2 Loudon Street is a deliberate false statement. 7. The plaintiffs by filing affidavit-in-reply disputed the allegations made by the defendants. 8. Before hearing of the application for temporary injunction, a local inspection was held and the advocate commissioner appointed by Court gave report describing the existence and position of the disputed passage. The parties relied upon some old title deeds of early 20th Century executed by the then owners of premises Nos. 8/1, Loudon Street which have been partitioned into four premises being premises Nos. 8/1, 8/1/1, 8/1/2 and 8/1/3, Loudon Street. The premises Nos. 8/1 and 8/1/1 stand on the northern side of the disputed passage while the premises Nos. 8/1/2 and 8/1/3 are on the southern side of the passage. 9. The learned trial Judge on consideration of the materials on record came to the conclusion that the plaintiffs failed to prove a prima facie case to go for the trial and consequently, dismissed the application for injunction and vacated the ad interim order, earlier passed by the said Court. 10. Being dissatisfied, the appellants have come up with the present miscellaneous appeal. 11. Mr. 10. Being dissatisfied, the appellants have come up with the present miscellaneous appeal. 11. Mr. Mitra, the learned senior advocate appearing on behalf of the appellants has vehemently contended before us that while rejecting the application for temporary injunction the learned trial Judge did not take into consideration the various deeds filed by his clients indicating exclusive right of his clients and also failed to appreciate the report of the commissioner in proper perspective. 12. According to Mr. Mitra, old deeds of early 20th Century executed by original owner of all these four premises will abundantly make it clear that the disputed passage was really private passage for the use of two premises being 8/1/2 and 8/1/1 as those premises had no direct entrance to the Loudon Street whereas the other two premises being premises Nos. 8/1/3 and 8/1 had the direct access to Loudon Street as those two premises stand on the Loudon Street itself. Mr. Mitra submits that it was the duty of the defendants to produce their sanctioned plan given by the Corporation of Calcutta which could indicate whether the disputed passage was really a private passage or the common passage of all the four buildings as claimed by the defendants. Mr. Mitra submits that for non-production of sanctioned plan of Corporation, adverse inference should be drawn against the respondents. Mr. Mitra further contends that the learned trial Judge totally misread the report of the commissioner from which it would appear that a gate has been recently fixed within the boundary wall only for the purpose of making out a case that at one point of time there was a gate. 13. Mr. Mitra submits it is absurd to suggest that in spite of having a gate in existence, any person would erect boundary wall covering such gate. Mr. Mitra, thus, prays for setting aside the order impugned. 14. Mr. Dasgupta, the learned senior advocate appearing on behalf of the respondents has opposed the aforesaid contentions of Mr. Mitra and has submitted that the learned trial Judge on consideration of the materials on record rightly came to the conclusion that the plaintiffs failed to prove a prima facie case to go for a trial. 15. Mr. 14. Mr. Dasgupta, the learned senior advocate appearing on behalf of the respondents has opposed the aforesaid contentions of Mr. Mitra and has submitted that the learned trial Judge on consideration of the materials on record rightly came to the conclusion that the plaintiffs failed to prove a prima facie case to go for a trial. 15. Mr. Dasgupta submits that from the commissioners report it was apparent that the iron gate was in existence on the northern side of premises No. 8/1/3 and the existence of such gate proves the veracity of the statement of his clients that as the construction of the building was going on, temporarily the three inch thick brick wall was erected for the purpose of prevention of the pilferage of building materials. Mr. Dasgupta further relied upon the indenture dated 12th January, 1907 executed by the then owner of the four premises pointing out that the owners of all the premises being Nos. 8/1, 8/1/1, 8/1/2 and 8/1/3 were given right of way over the disputed common passage to claim support for the gateways and arch at the east end of the said common passage on or against the south way of the said passage. By relying upon the aforesaid deed, Mr. Dasgupta submits that the learned trial Judge rightly held that the plaintiff had no prima facie case to go for trial. 16. After hearing the learned counsel for the purpose and after going through the materials on record we are of the opinion that on the basis of materials on record the learned trial Judge rightly dismissed the application for temporary injunction. 17. It is now settled law that in order to succeed in an application for temporary injunction the party applying for such injunction must show a strong prima facie case in support of the case made out in the application for injunction and if such prima facie case is established, in addition to that, the application must prove that the balance of convenience and inconvenience is in favour of granting such injunction and that unless such injunction is granted, such party will suffer irreparable loss and injury. 18. 18. In the case before us, the plaintiffs, the occupants of premises No. 8/1/2 tried to justify their claim that the passage in question was meant only for the occupiers of premises No. 8/1/2 and 8/1/1 as those two premises were not on the Loudon Street and in order to get access to the Loudon Street this is the only way. 19. There is no dispute that initially all the four buildings belonged to one person and were described as 8/1 and subsequently, those were partitioned to four different premises. It further appears from the commissioners report that premises No. 8/1 and 8/1/3 had direct access to the Loudon Street whereas the occupants of the other two premises Nos. 8/1/2 and 8/1/1 can reach Loudon Street only through that common passage. 20. At this stage we must not lose sight of the fact that the defendants are in no way disputing the right of common passage of plaintiffs but they are resisting the claim of the plaintiffs that it is the private passage meant only for the occupiers of the premises Nos. 8/1/2 and 8/1/1. 21. We find from the various deeds executed about hundred years ago that even at that point of time the said passage was in existence. We find substance in the contention of Mr. Dasgupta that from the indenture dated 12th January, 1907 among the Delhi and London Bank Limited, John Malcolm Greory Manuk and Mesrofu Marsirose Nahafuel, it is apparent that the occupants of 8/1, 8/1/1, 8/1/2 and 8/1/3 were given "right of way over the disputed passage to claim support for the gateways and arch at the east end of the said common passage on or against the south way of the said messuage with liberty for the said owner or owners to repair, re-erect or reconstruct the said gate way or arch in the same possible and at the same place where the structure now stands" as specifically mentioned therein. 22. We, thus, find that the disputed passage passed through the midst of the four premises which were at one point of time part of 8/1 and in the said deed common right having been conferred upon all the occupants, the claim of the plaintiffs that occupants of premises Nos. 8/1/3 and 8/1 had no right over the same cannot be prima facie supported. It may be that the premises Nos. 8/1/3 and 8/1 had no right over the same cannot be prima facie supported. It may be that the premises Nos. 8/1/3 and 8/1 had also separate access direct to Loudon Street but that does not mean that the occupants thereof cannot have any right of common passage through the disputed passage unless specifically excluded by the deed. No such document has been produced by the plaintiffs justifying their claim. We are unable to accept the contention of Mr. Mitra that adverse inference should be drawn against the defendants for non-production of their sanctioned plan when the plaintiffs have not produced their plan of the building in support of their claim. Moreover, the sanctioned plan of the defendants building could be easily available to the plaintiffs by applying for the certified copy thereof from the Corporation of Kolkata. 23. Even the balance of convenience and inconvenience is in favour of refusing the prayer for injunction. If the injunction is granted and consequently, the ccupants of 8/1/3 are restrained and ultimately the suit fails, the defendants will be unnecessarily deprived of their right of use of the common passage; on the other hand, even if injunction is refused that will in no way affect the right of plaintiffs to use the said passage for the purpose of approaching Loudon Street and it cannot be said that for refusal of injunction, the plaintiffs will suffer irreparable loss and injury. 24. We, therefore, find that the learned trial Judge was quite justified in holding that the plaintiffs failed to prove prima facie case on the basis of materials placed before the Court. There being no prima facie case, the question of balance of convenience and inconvenience is immaterial and thus, there is no justification of interfering with the order passed by the learned trial Judge. It is now settled law that while dealing with an appeal against discretionary orders like temporary injunction, the appellate Court will not interfere simply because from the selfsame materials another view is possible. The appellate Court will only interfere if it is shown that the learned trial Judge was clearly wrong in exercising discretion by not following the principles which are required to be followed while considering an application for temporary injunction. 25. The appellate Court will only interfere if it is shown that the learned trial Judge was clearly wrong in exercising discretion by not following the principles which are required to be followed while considering an application for temporary injunction. 25. In the present case, we are of the view that from the selfsame materials we should also hold that plaintiffs failed to prove a prima facie case to go to trial and thus, we find no reason to upset a just order passed by the learned trial Judge. 26. The appeal is, thus devoid of any substance and the same is, accordingly, dismissed. In the facts and circumstances, there will, however, be no order as to costs. 27. The observations made herein are all tentative for the purpose of disposal of the application for temporary injunction and will not be binding upon the learned trial Judge when the suit will be heard finally on the basis of further evidence that will be adduced before Court. 28. Interim order granted earlier stands vacated. Let hearing of the suit be expedited and the suit be disposed of within three months from the date of communication of this order. 29. In view of dismissal of the appeal itself, the application for stay being C.A.N. No. 3133 of 2005, filed in connection with the above appeal, has become infructuous and the same is disposed of accordingly. Appeal dismissed.