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2013 DIGILAW 597 (CAL)

Bimal Saha v. Mriganka Chowdhury

2013-08-21

PRASENJIT MANDAL

body2013
JUDGMENT Prasenjit Mandal, J. Challenge is to the order dated February 28, 2013 passed by the learned Additional District Judge, 2nd Court, Barasat in Misc. Appeal No.48 of 2011 thereby disposing of the appeal directing the parties to maintain status quo as regards the nature and character of the suit property till the disposal of the application for temporary injunction by the learned Trial Judge. The plaintiff/appellant/opposite party herein instituted the title suit being Title Suit No.81 of 2011 for ejectment of a tenant, mesne profits, permanent injunction and other consequential reliefs. In that suit, he filed an application for temporary injunction and prayed for an ad interim injunction. The learned Trial Judge refused to grant an ad interim injunction, but, issued a show cause notice upon the defendant/petitioner herein. Being aggrieved, the plaintiff preferred an appeal being Misc. Appeal No.48 of 2011 which was disposed of in the manner indicated above by the impugned judgment and order. Being aggrieved, this application has been preferred by the defendant/respondent/petitioner herein. Now, the question is whether the impugned order should be sustained. Upon hearing the learned Counsel for the parties and on going through the materials on record, I find that so far as the claim of the plaintiff/appellant/opposite party herein in respect of the suit property is concerned, the suit is nothing but an ejectment suit and other consequential reliefs against a tenant on the ground of default in payment of rent, contravening of the provisions of Section 108(m)(o)(p) of the Transfer of Property Act and for causing damage to the suit property, annoyance and nuisance to the plaintiff, inmates and neighbours of the plaintiff. The defendant has contended that he is in possession of the suit property as owner upon full payment of the consideration money as per agreement for sale. Upon full payment, the possession has been delivered and so, he has right to repair, but, he is debarred from doing so in view of the order of status quo. So, it is contended by his advocate that the order of status quo should be vacated. So far as the claim of the defendant is concerned, I find that the contention of the defendant as to claim of ownership from the suit property is not supported by any registered deed. Nor is there any paper as to delivery of possession. So, it is contended by his advocate that the order of status quo should be vacated. So far as the claim of the defendant is concerned, I find that the contention of the defendant as to claim of ownership from the suit property is not supported by any registered deed. Nor is there any paper as to delivery of possession. Under such circumstances, without any materials in support of corroboration, it is difficult to concede to the contention of the defendant. So, the contention of the plaintiff comes to picture and in such circumstances, the learned First Appellate Court, upon consideration of the materials on record, have come to the conclusion that there is no irregularity or illegality on the part of the learned Trial Judge in refusing the prayer for ad interim injunction. But, he has granted the order of status quo in view of the fact that at the time of the admission of the misc. appeal, the learned District Judge passed an order restraining the defendant from changing the nature and character of the suit property in any manner and since no untoward incident has taken place since then, the order of status quo should continue till the disposal of the application for temporary injunction. Mr. Tridib Sarkar, learned Advocate appearing for the petitioner, has contended that the entire order of the learned First Appellate Court is in anomaly, there is no clear description which appeal he is dealing with either Misc. Appeal No.48 of 2011 or Misc. Appeal No.103 of 2009. The finding of the 1st Appellate Court is not sustainable at all. He has also contended that there is a contradictory finding when the learned First Appellate Court has observed that there is no irregularity or illegality on the part of the learned Trial Judge in refusing the prayer for ad interim injunction, but, in fact, he has directed the parties to maintain status quo as regards the nature and character of the suit property till the disposal of the application for temporary injunction, and thus, he has submitted that such contrary observations are not permissible and as such, the impugned order should be vacated so as to enable the owner to repair the suit premises under his occupation. Though the learned 1st Appellate Court has held that there is no reason to disagree with the impugned order, in fact, he has granted an order of status quo which is contrary to his finding. He has also contended that the plaintiff/opposite party herein has suppressed the material fact before the learned Trial Judge totally by denying the payment of the consideration money and the agreement including the delivery of possession and so, the application for temporary injunction should reject. Anyway, I find that at the time of conclusion, the learned First Appellate Court has observed that the application for temporary injunction shall be heard out on merits after giving both the sides to present their respective stand and he has not discussed the basic principles of granting the injunction, possibly, in view of the fact that his observations are likely to influence the learned Trial Judge. Since the application for temporary injunction is still pending and it is to be disposed of by the learned Trial Judge, upon consideration of the materials on record as recorded by the learned First Appellate Court, in my view, so far as the interim order of injunction is concerned, there is an urgency in passing the interim order in the nature of status quo upon both the parties. Otherwise, if the repair is made as alleged, the nature and character of the suit property may be changed in the name of repair. So, there is an extreme urgency in passing an ad interim order of injunction in the nature of status quo as passed by the learned First Appellate Court. Accordingly, in my view, there is no scope of interference with the impugned order so far as the conclusion is concerned. However, it is recorded that at the time of the disposal of the application for temporary injunction, the learned Trial Judge shall not be influenced by the findings of the learned First Appellate Court as well as of this Court, if any. He shall come to an independent decision on the merits of the application for temporary injunction. The application is disposed of in the manner indicated above. Considering the circumstances, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.