Research › Search › Judgment

Calcutta High Court · body

2008 DIGILAW 112 (CAL)

Chandana Karmakar v. Amit Kumar Ghosh

2008-01-25

PRABUDDHA SANKAR BANERJEE

body2008
Judgment This revisional application is one under Article 227 of the Constitution and is directed against order dated 31.1.2007 passed by the Learned Additional District Judge, First Court, Howrah, in connection with Misc. Appeal No.281 of 2006. The said appeal was preferred by the present petitioners against the order No.6 dated 1.11.2006 passed by the learned 3rd Civil Judge, Junior Division, Howrah in connection with T. S. No.127 of 2006. The fact leading to filing of the said suit may be summed up thus: - i) That the present petitioners who were plaintiffs in the said suit along with proforma defendant nos.3, 4 and 5 were the owners of the property in question, details of which were mentioned in the schedule of the plaint. They became owners of the said property after demise of their parents. ii) The plaintiffs took the specific plea in the said suit that the proforma defendants nos.3 to 5 who are their brothers asked them along with their mother to execute one agreement in favour of defendant Nos.1 & 2 on the ground that the said agreement would be for development of the property in question. They, also told the plaintiffs that they would be provided with separate flats, shop and cash money after the premises in question is developed by the defendant nos.1 and 2, who are the developer/promoter. Being prevailed over by the said proforma defendants, the plaintiffs executed one deed which, in their opinion was on agreement for development of the property in question. It is the further case of the plaintiffs that subsequently they found some unknown persons in the property in question during their visit. It is the further case of the plaintiffs that in spite of their repeated demands/requests, their brothers did not provide them with copy of the agreement. iii) Subsequently they came to know that the deed in question is nothing but power of attorney which was executed by them without understanding the contents thereof. iv) It is the further case of the plaintiffs that as they were not well educated, it was not possible for them to go through the contents of the agreement and the contents of the said agreement were never read over and explained to them. They were given some money but subsequently the defendant nos.1 & 2 refused to provide them with any separate flat. They were given some money but subsequently the defendant nos.1 & 2 refused to provide them with any separate flat. v) Finding no other alternative they had to file the case and also filed one application under Order 39 Rule 1 & 2 of CPC. vi) By order dated 1.11.2006, their prayer for injunction was rejected by the learned 3rd Civil Judge, Junior Division, Howrah and against that order the present petitioners being the plaintiffs in the said suit preferred one Misc. Appeal being Misc. Appeal No.281 of 2006. vii) By the order impugned the Learned First Additional District Judge, Howrah dismissed the appeal and affirmed the order passed by the learned Civil Judge, Junior Division, Howrah. Being aggrieved by the order in question, the instant revision has been preferred by the plaintiffs who are petitioners before this Court. It is to be mentioned that in the revisional application, one Niranjan Jana was made opposite party who was not a party before the Court below at the relevant time. Subsequently the name of the opposite party No.3 Niranjan Jana was expunged on the basis of application by the present petitioners. The main respondents contested this revisional application by using affidavit-in-opposition. The proforma opposite parties who are the brothers of the present petitioners also supported the case of the opposite party nos.1 & 2. Mr. Dutta, Learned counsel for the present petitioners challenged the order mainly on the following grounds: - i) That the Court relied upon a document which as per law is illegal/voidable. ii) That the Court ignored the fact that the present petitioners were not conversant with the legal procedures and were not educated enough to understand the contents of the agreement. iii) That the Court disbelieved the petitioner’s case that the petitioners were prevailed over by their brothers to execute the power of attorney which, in their belief was agreement for development. iv) That the Court also ignored the fact that the proforma defendants along with the defendant nos.1 & 2 practised fraud upon the present petitioner’s in obtaining the alleged power of attorney. The said pleas were strongly opposed by Sri Ajit Panja, learned Sr. Counsel who appeared on behalf of the opposite parties Nos.1 & 2. Mr. iv) That the Court also ignored the fact that the proforma defendants along with the defendant nos.1 & 2 practised fraud upon the present petitioner’s in obtaining the alleged power of attorney. The said pleas were strongly opposed by Sri Ajit Panja, learned Sr. Counsel who appeared on behalf of the opposite parties Nos.1 & 2. Mr. Panja in course of his strenuous argument drew the attention of the Court to the fact that the present petitioners are hopelessly out of possession of the property in question and as such they are not entitled to get the relief as prayed for. Mr. Panja further contended that the present petitioners have 4/25th share in the property in question which was transferred in favour of the opposite party No.3 whose name was subsequently expunged. Mr. Panja further contended that on the basis of such transfer in favour of Niranjan Jena, he is in possession of the property in question and as such the present petitioners being out of possession of the property in question cannot get order of injunction. It was the further contention of Mr. Panja that whether the deed in question is void or voidable cannot be considered by the Court at this stage and this Court at this stage will only consider the prima facie case of the present petitioner. Moreover, the plea of practicing fraud upon the petitioners by opposite party nos.1 & 2 along with proforma defendant nos.3 to 5 cannot be ascertained without taking any evidence. Mr. Anil Kumar Chatterjee, learned Counsel for the opposite party No.4 supported the pleas taken by Mr. Panja. Mr. Chatterjee contended that it cannot be believed that the present petitioners without understanding the contents of the power of attorney signed and executed the same in favour of the opposite party nos.1 & 2 as they were aware of the nature of the document. Mr. Chatterjee further contended that the present petitioners were not entitled to get the order of injunction from the Court below. Mr. Chatterjee further contended that the present petitioners were not entitled to get the order of injunction from the Court below. He drew attention of the Court to the signatures of the petitioners in the money receipt and power of attorney and on the basis of the same, contended that the Court, being the expert of all experts can safely come to the conclusion that the petitioners are well conversant with English and the plea of learned counsel for the petitioners that they were not aware of the contents of the document in question can not be accepted. It is worth mentioning that at the time of hearing, Mr. Panja disclosed before this Court that all the flats over the property in question were transferred and as such the question of injunction restraining the opposite party nos.1 & 2 from transferring the flats to third parties does not arise. Mr. Dutta, learned Counsel for the petitioners contended that there are some factors which need to be considered by the Court. It was his contention that the alleged sale on behalf of the present petitioners was done on behalf of the present petitioners though the said sisters who are petitioners before this Court were able bodied persons. Mr. Dutta further contended that the brothers who are proforma defendants before the Court below were at liberty to execute the transfer Deed with respect to their own shares but the transfer of shares on behalf of the present petitioners by them will raise doubt in the mind of the Court. Though the said plea was raised before the Court below, that was not discussed or considered by the Court below. Mr. Dutta drew the attention of the Court to Section 35 & 48(g) of the Stamp Act and also Schedule 1A of the said Act being the State amendment. On the basis of the same Mr. Dutta contended that the document in question which is in the disguise of power of attorney is a voidable document as in fact, it was an agreement for sale. It was the further contention of Mr. Dutta that in case of agreement for sale, the stamp duty which is required to be paid is one under Schedule 1A of the said Act and as the said duty was not paid, the Court must come to the conclusion that the said document is voidable. Mr. It was the further contention of Mr. Dutta that in case of agreement for sale, the stamp duty which is required to be paid is one under Schedule 1A of the said Act and as the said duty was not paid, the Court must come to the conclusion that the said document is voidable. Mr. Dutta further drew attention of the Court to the supplementary affidavit and on the basis of the same he contended that the letter written by Howrah Municipality will go to show that there was yet to be any sale with respect to the property in question when plan was submitted for sanction. Accordingly, he contended that his plea that it was not a sale but an agreement for development of the property should have been accepted by the Court below. It is to be mentioned here that some documents were relied upon by the present petitioners by way of supplementary affidavit. It is to be mentioned further that those documents were never placed before the Court below. We must keep it in mind that under Article 227 of the Constitution of India the High Court has supervising jurisdiction regarding the orders passed by the subordinate Courts. The Court, at this stage will not consider the documents which were never produced before the Court below. This Court will however, consider the order passed by the learned additional District Judge on the basis of documents which were produced before him. Mr. Dutta in course of his argument relied upon the following cases:- i) Lekh Raj Vs. Muni Lal & Ors. reported in AIR 2001 SC 996 ii) Narayandas Nathumal Hemrajani & Ors. Vs. Taraben Kalimuddin Mulla Fakhri Society & Ors. Reported in AIR 1998 Gujarat 12 iii) Kishore Kumar Khaitan & Anr. Vs. Praveen Kumar Singh reported in AIR 2006 SC 1474 iv) Atma Ram Vs. Shakuntala Rani reported in AIR 2005 SC 3753 . Mr. Panja, learned Sr. Counsel for the opposite party nos.1 & 2 contended that it has become the settled proposition of law that the Court of revision under Article 227 of the constitution will not interfere with the findings of the Court below unless and until it is proved that the order impugned is “perverse” and the learned trial judge passed the said order without any jurisdiction. At the same time Mr. At the same time Mr. Panja contended that before passing any order of injunction, the Court must be satisfied that there exists strong prima facie case in favour of the petitioners. At the same time it is the duty of the Court to see that balance of convenience and inconvenience is with the petitioners who filed the application for injunction. Mr. Panja in course of his argument contended that there is no dispute that the present petitioners are out of possession. Mr. Panja drew attention of the Court to the fact that the opposite party No.3 who was initially made a party purchased the shares of present petitioners in the property by paying Rs.50,000/- each to the said petitioners. For this he relied upon the money receipt which is annexed with the affidavit-in-opposition and on the basis of the same Mr. Panja contended that there is no dispute that the present petitioners got the said amount being the sale proceeds for their share. Mr. Panja further contended that the total area of the property in question is 5 Kathas 3 Chattacks 5 sq. ft. and the present petitioners having 4/25th share in the property in question got sufficient money as sale proceed which is more than the market price. Mr. Panja further contended that the petition for injunction has become infructuous as the entire flats which were constructed over the property in question were transferred to different purchasers who are in possession of the same. Accordingly, Mr. Panja contended that the balance of convenience and inconvenience is not with the present petitioners. Moreover, the present petitioners failed to make out any strong prima facie case and as such, the learned trial judge as well as the first appellate Court did not commit any mistake in refusing the order of injunction. On the basis of materials on record, I am also of clear opinion that the present petitioners failed to make out any prima facie case either before the learned trial judge or before the first appellate Court. Moreover, the balance of convenience and inconvenience is also not with the present petitioners. As such, under no circumstances, the order impugned can not be called as “perverse” or without jurisdiction and interference by this Court is not warranted. Let me now discuss the cases as referred by Mr. Dutta. In the case in between Atma Ram Vs. Moreover, the balance of convenience and inconvenience is also not with the present petitioners. As such, under no circumstances, the order impugned can not be called as “perverse” or without jurisdiction and interference by this Court is not warranted. Let me now discuss the cases as referred by Mr. Dutta. In the case in between Atma Ram Vs. Shakuntala Rani reported in AIR 2005 SC 3753 the Apex Court came to the conclusion that the High Court can pass order under Article 227 of the constitution, if it is found that there was serious error of law committed by the Court below. In the instant case I have already held that no such serious error was committed either by the trial Court or by the first appellate Court. In the case in between Kishore Kumar Khaitan & Anr. Vs. Praveen Kumar Singh reported in AIR 2006 SC 1474 , the Apex Court came to the conclusion that if it is found that there was finding of fact reached by the Subordinate Court in improper manner, the High Court can correct the same under Article 227 of the constitution. In the instant case there was no such error on the part of the Court below and as such the said case will not help Mr. Dutta’s client. In the case in between Narayandas Nathumal Hemrajani & Ors. Vs. Taraben Kalimuddin Mulla Fakhri Society & Ors. reported in AIR 1998 Gujarat 12 the Honble Court came to the conclusion that the Court of revision can go through the subsequent development if it is found that the same has gone to the root of litigation and cause of action. In the instant case the fact is totally different and as such the said case will also not help Mr. Dutta’s client. In the case in between Lekh Raj Vs. Muni Lal & Ors. reported in AIR 2001 SC 996 the Apex Court came to the conclusion that subsequent event or fact can be taken note of by the High Court. However, on perusal of the same it is crystal clear that the fact of the said case is totally different and under no circumstances the said case will come to rescue of the Mr. Dutta. However, on perusal of the same it is crystal clear that the fact of the said case is totally different and under no circumstances the said case will come to rescue of the Mr. Dutta. In view of the said position and also considering the materials on record, I am of clear opinion that there was no mistake on the part of the learned trial judge as well as the first appellate Court in refusing the injunction in favour of the present petitioners and as such there is no necessity to interfere with the said findings of the subordinate Courts and accordingly, the instant revisional application is dismissed but without any cost. It is needless to mention that I have not gone through the merit of the case and the observation made in the body of this order is tentative and not final and the learned trial judge under no circumstances will be influenced by any such observation in disposing of the suit. The Learned Trial Judge is hereby directed to dispose of the suit as early as possible and preferably within a period of six months from the date of communication.