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2010 DIGILAW 985 (CAL)

Inbara Holdings Pvt. Ltd. v. Sheela Newar

2010-08-13

MD.ABDUL GHANI, S.K.MUKHERJEE

body2010
JUDGMENT Md. Abdul Ghani, J. 1. THE instant miscellaneous appeal is directed against the order dated 22.9.2009, passed by Smt. Anindita Roy Saraswati, learned Judge, VIth Bench, City Civil Court, Calcutta in Title Suit No. 5109 of 2009. It would appear that the plaintiff/respondent No. 1, instituted aforesaid Title Suit No. 5109 of 2009 on 17.9.2009 in the Court of learned Judge, VIth Bench, City Civil Court, Calcutta against the present petitioner-appellant and respondents/opposite party nos. 2 and 3 praying inter alia for declaration to this effect that the plaintiff is the lessee in respect of one covered car parking space situated in the ground floor and two covered car parking spaces at basement of the premises no. 33, Shakespeare Sarani, Kolkata 700 017. 2. N the said suit, aforesaid plaintiff by filing an application under Order 39, Rules 1 and 2 read with Section 151 of the Code of Civil Procedure, sought for temporary injunction against the defendants of the suit, their men, servants, agents and/or assigns from creating any disturbance in the peaceful use and enjoyment of the said three car parking spaces as described in the schedule to the said injunction application. It appears from the materials on record that the learned Court below after hearing the learned lawyer for the petitioner-plaintiff and also upon consideration of the application for temporary injunction as also some other important connected materials on record was pleased to pass an ad-interim order of injunction in the form of status quo directing the defendants/respondents to maintain status quo in respect of the car parking spaces indicated in the schedule to the injunction application till 29.10.2009 and the said ad-interim order of injunction was extended upto 25.1.2010. 3. THE plaintiff's contention as set forth in the body of the application under Order 39, Rules 1 and 2 read with Section 151 of the Code of Civil Procedure may in short be depicted as follows: The plaintiff happens to be the lessee in respect of a flat being no. 6B, situated at 6th floor of a residential building comprised in premises no. 33, Shakespeare Sarani, Kolkata 700 017 together with an undivided 68.84% share in the said premises by virtue of a registered deed of lease dated 15th March, 2002 for a period of 99 years. 6B, situated at 6th floor of a residential building comprised in premises no. 33, Shakespeare Sarani, Kolkata 700 017 together with an undivided 68.84% share in the said premises by virtue of a registered deed of lease dated 15th March, 2002 for a period of 99 years. Pursuant to the contents of the said lease deed plaintiff was allotted two covered car parking spaces at the basement and one covered car parking space in the ground floor of the said premises, possession of which was handed over to the plaintiff immediately upon handing over of the possession of the flats in question. 4. SINCE, the date of execution of the lease deed dated 15th March, 2002, plaintiff has been using and enjoying the car parking spaces indicated above uninterruptedly. It has been alleged that for the last few months prior to institution of the suit the defendant nos. 2 and 3 started claiming their right, title and interest over the said car parking spaces, which have already been allotted to the plaintiff by the erstwhile owner being defendant no. 1. It has been categorically contended by the appellant that the appellant is the lessee in respect of flat no. 7B as also servants' quarter situated in the 7th floor along with demarcated car parking spaces lying in the ground floor and basement floor of the said building appertaining to premises no. 33, Shakespeare Sarani, Kolkata 700 017, by virtue of a registered indenture of lease dated 9.7.2002. It has been emphatically alleged that plaintiff/respondent no. 1 taking advantages of the order of status quo has been wrongfully and with malafide intention trying to encroach and trespass upon the said demarcated car parking spaces by creating unnecessary problems to the appellant in the matter of peaceful possession of the car parking spaces. In the circumstances, the appellant finding no other alternative has come up before this Court with the prayer for setting aside the impugned order of injunction. 5. MR. Surojit Nath Mitra, learned senior advocate appearing on behalf of the appellant while making submission drew our attention to the materials on record including the registered indenture of lease dated 9.7.2002 as also the annexed plan map concerning the ground floor car parking spaces of the premises in question and emphatically urged that the learned trial Judge while passing the impugned order committed mistake causing miscarriage of justice. In support of his argument he drew our pointed attention to the plan map produced before this Court and strongly contended that the order impugned could be said to be untenable in the existing circumstances so depicted in the indenture of lease dated 9.7.2002, executed in favour of his client. 6. ON the other hand, Mr. Saktinath Mukherjee, learned senior advocate appearing for the plaintiff/respondent no. 1, while arguing the case referred to the contents of the registered deed dated 15.3.2002 executed in favour of his client as also the certified copy of the indenture dated 9.7.2002 as well as some other important materials on record and strongly submitted that it would not appear from the contents of the certified copy of the indenture dated 9.7.2002 that any demarcated car parking space has been allotted to the appellant and that as per recitals of the deed dated 15.3.2002 executed in favour of the plaintiff/respondent no. 1, the car parking spaces could be said to have been allotted in favour of the plaintiff/respondent no. 1. He in course of his argument further drew our attention to the certified copy of the indenture of lease dated 9.7.2002 executed in favour of the appellant and strenuously submitted that the certified copy is the scanned copy of the original deed of lease maintained by the registration office and as such no reliance could be placed on it. Mr. Mukherjee further argued that the original deed of lease and particularly the plan of the ground floor parking spaces has subsequently been interpolated by the appellant by putting such blue border. In reply to Mr. Mukherjee's aforesaid contention Mr. Mitra placed before us the copy of the Kolkata Gazette (Extraordinary), published on 21st May, 2008, containing a notification bearing no. 01/1GR dated 9.5.2008, which was published by the Government of West Bengal, Directorate of Registration and Stamp Revenue, Writers' Buildings, Block 'F', Kolkata, wherefrom it could be detected that by such notification, the West Bengal Registration Rules, 1962 was amended, by virtue of which chapter XIX of the said Rules was substituted with the heading Registration of Documents through the System of Computerization of Registration of Documents (CORD); Rule 129 of the said amended rules provides for scanning of documents including the maps and plans by using the scanner and the software provided for that purpose. Finally, he submitted that there is no existence of any provision for scanning of documents presented for registration prior to 19th May, 2008, and as such question of preparing or maintaining any scanned copy of the lease deed dated 9.7.2002 could not arise. Mr. Chatterjee, learned advocate appearing for the defendant no. 1, has contended that the plaintiff/respondent no. 1 is having no right over car parking space in the ground floor of the premises in question. He has further strongly submitted that the plaintiff has in fact fabricated/interpolated the deed of lease executed in her favour to claim some right over the car parking space of the ground floor for reasons of which defendant no. 1, has instituted a suit against the plaintiff/respondent no. 1 seeking appropriate reliefs. The question as to whether the plaintiff or the defendant no 3 has interpolated any document shall have to be decided at the time of trial of the suit and not at this stage. 7. UPON perusal of the deed dated 15.3.2002 executed in favour of the plaintiff/respondent no. 1, it would be manifest that defendant no. 1, Swastika Pvt. Ltd., was allotted one car parking space in the ground floor and two other car parking spaces at the basement floor of the premises no. 33, Shakespeare Sarani, Kolkata 700 017 in favour of said respondent no. 1. Further, it would transpire from the contents of indenture lease dated 9.7.2002 that the appellant was allotted one car parking space in the ground floor and also one car parking space at the basement floor of the said premises by the said defendant no. 1. Needless to say that allotment of car parking spaces in favour of plaintiff/respondent no. 1 by the defendant no. 1, dated 15.3.2002 happens to be earlier, than car parking spaces allotted in favour of defendant no. 3, executed by said defendant no. 1 in favour of the appellant. It may be pertinent to point out that the indenture of lease dated 9.7.2002 provides for two car parking spaces, while the deed dated 15.3.2002 indicated above provides for three car parking spaces. 3, executed by said defendant no. 1 in favour of the appellant. It may be pertinent to point out that the indenture of lease dated 9.7.2002 provides for two car parking spaces, while the deed dated 15.3.2002 indicated above provides for three car parking spaces. From the deeds and documents produced before us it would, prima facie, show that the deed dated 9.7.2002 executed in favour of the appellant is disclosing appellant's right to use and enjoy two car parking spaces which was depicted in the plan, annexed to the registered indenture of lease and bordered 'blue' herein. 8. THEREFORE, having heard the learned counsels for the parties concerned and also regard being had to the circumstances of the case including the said annexed map, we modify the impugned order by directing the defendants to maintain status quo in respect of car parking spaces as mentioned in the schedule to the injunction application filed by the plaintiff/respondent no. 1, and with further direction that the plaintiff/respondent no. 1 be restrained from interfering with the parking space as shown and delineated in the map or plan annexed to the registered deed of lease dated 9.7.2002, executed in favour of the appellant, till disposal of the injunction petition pending in the Court below. In the existing circumstances, we direct the learned Court below to hear and dispose of the application under Order 39, Rules 1 and 2 read with Section 151 of the Code of Civil Procedure and the application under Order 39, Rule 4 read with Section 151 of the Code of Civil Procedure filed by the plaintiff/respondent no. 1 and the appellant/defendant no. 3 respectively at an earliest opportunity preferably within a period of three months from the date of communication of this order. In the result, the impugned order stands modified as above and the appeal is thus disposed of. We, however, make no order as to costs. Urgent xerox certified copy be given to the parties expeditiously, if applied for.