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2014 DIGILAW 1145 (CAL)

Gita Devi Bagaria v. Sibroti Shaw

2014-12-03

SANJIB BANERJEE

body2014
JUDGMENT : Sanjib Banerjee, J. In view of the order proposed to be made, no previous service is required to be effected on the opposite party. The petitioner will, however, remain obliged to immediately forward a copy of the petition along with a copy of this order to the opposite party. 2. The grievance of the petitioner is that despite the petitioner asserting before the appellate court that the petitioner had been dispossessed pursuant to an ex parte ad interim order obtained in the appeal, the appellate court declined to go into the matter while rendering the final order and dismissing the appeal. 3. The petitioner claims to be the tenant who was in occupation of the suit premises at the time of the institution of the suit. The plaintiff has claimed that the petitioner herein had surrendered possession of the tenanted premises. Curiously and despite such assertion, the suit has been filed apparently to restrain the tenant from creating third party rights in respect of the suit properties or otherwise dealing with the same. 4. There is considerable suspicion that is aroused in a landlord claiming that a tenant had voluntarily surrendered the tenancy but was thereafter seeking to create third party rights in respect of the suit premises, probably by inducting others thereat. 5. The ex parte ad interim order sought before the trial court was appropriately declined. The refusal to pass an ex parte order was carried in appeal and, as is the bad habit in the district judiciary, the appeal was not only entertained but an ad interim order was passed therein without indicating how the trial court had grievously erred in exercising a discretion that was undoubtedly vested in the trial court. 6. A digression is necessary at this stage. Courts in the district judiciary must be disabused of the notion that an ex parte ad interim order is the rule and not the exception. It is emphasised that an ex parte order should be regarded as an exception and which is why there is a special provision in such regard in Order 39, Rule 3 of the Code. In particular, appellate courts should be wary of passing ex parte ad interim orders in appeals arising out of the refusal of ex parte ad interim orders. 7. In particular, appellate courts should be wary of passing ex parte ad interim orders in appeals arising out of the refusal of ex parte ad interim orders. 7. To return to the matter at hand, the petitioner herein claims that armed with the ex parte ad interim order mindlessly passed by the appellate court, the landlord dispossessed the petitioner from the suit premises by breaking upon the padlocks put up thereat by the petitioner. The petitioner applied under Order 39 Rules 1 and 2 of the Code before the appellate court in seisin of the miscellaneous appeal for restoration of the petitioner's possession of the suit premises. 8. While finally adjudicating the appeal and dismissing the same, the appellate court found that there was no prima facie evidence produced by the petitioner herein of the petitioner having been dispossessed from the suit premises pursuant to the ex parte ad interim order passed in the appeal. 9. The petitioner relies on a judgment reported at 2009 (2) CHN 806 (Asha Chaubey v. Shib Dayal Shukla) where, in somewhat similar circumstances, this Court rendered a view that when an illegal order of the appellate court had been taken advantage of by a wrongdoer to dispossess a person from an immovable property, it was the duty of the appellate court to adjudicate on the application of the person dispossessed and undo the wrong, if any. However, there is a distinction which prevents the principle being applied with equal force in the present case; and, a matter of policy that would require the principle to be applied with considerable restraint. 10. For a start, the ad interim order obtained by the appellant in the case of Asha Chaubey was set aside on a petition under Article 227 of the Constitution. At the time that the petition under Article 227 of the Constitution was taken up by this Court, it was pointed out that because of subsequent events, an application had been made by the respondent in the lower appellate court. While setting aside the ex parte ad interim order passed by the appellate court on the ground that such order amounted to the appeal being virtually allowed without the respondent being heard, this Court required the appeal to be disposed of on merits within a particular period of time. While setting aside the ex parte ad interim order passed by the appellate court on the ground that such order amounted to the appeal being virtually allowed without the respondent being heard, this Court required the appeal to be disposed of on merits within a particular period of time. The appellants before the lower appellate court did not, thereafter, pursue the appeal on the ground that upon the ex parte ad interim order passed in the appeal being set aside by this Court, the appeal was robbed of its life. In course of dismissing the appeal as infructuous, or for want of prosecution, the lower appellate court declined to consider the application of the party who claimed to have been dispossessed from the property in question. Such party challenged the appellate order by way of a subsequent petition under Article 227 of the Constitution. 11. It has to be noticed that the principle that was laid down in Asha Chaubey was that if a judicial authority is approached with an application that by virtue of its erroneous order, a person had been seriously prejudiced, it is the duty of such judicial forum to adjudicate thereupon. 12. In the present case, the lower appellate court did not decline to entertain the petitioner's application. Indeed, the concluding paragraph of the order impugned dated November 13, 2013 records that the court was, prima facie, not satisfied that the petitioner herein had been dispossessed by the plaintiff during the pendency of the appeal. In such circumstances, when the appellate court did not refuse to entertain the application but rendered a prima facie view on the merits thereof, the principle in Asha Chaubey cannot be extended to this case, particularly since it ought to be appreciated that an application requesting restoration of status quo ante on the ground of dispossession would, in almost every case, be required to be tried on evidence; and, an appellate court would, ordinarily, not conduct trials on evidence. 13. In such circumstances, CO 1526 of 2014 is disposed of without interfering with the order impugned but by leaving the petitioner free to apply before the trial court in respect of the alleged dispossession of the petitioner from the suit premises during the pendency of the appeal. 13. In such circumstances, CO 1526 of 2014 is disposed of without interfering with the order impugned but by leaving the petitioner free to apply before the trial court in respect of the alleged dispossession of the petitioner from the suit premises during the pendency of the appeal. If such application is filed within a period of three weeks from date, the trial court will endeavour to dispose of the same within three months therefrom uninfluenced by the prima facie view expressed by the appellate court. 14. There will be no order as to costs. 15. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.