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2015 DIGILAW 591 (CAL)

Mohan Developers v. Chandrama Prasad Verma

2015-07-21

DEBI PROSAD DEY, JYOTIRMAY BHATTACHARYA

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JUDGMENT JYOTIRMAY BHATTACHARYA, J. Since the appeal was filed within the prescribed period of limitation, the application under Section 5 of the Limitation Act filed by the appellants, is redundant. Accordingly, no order need be passed on the said application. The application is thus, disposed of. This First Miscellaneous appeal is directed against an order being No. 2 dated 20th December, 2014 passed by the Learned Civil Judge (Senior Division), 2nd Court at Howrah in Title Suit No. 16397 of 2014 whereby an ad-interim order of injunction was passed by restraining the defendants from transferring, alienating or selling the ‘B’ schedule property to any third party and from dispossessing the plaintiff therefrom without due process of law till 11th February, 2015. Notice was directed to be served upon the defendants. Challenging the said order passed by the Learned Trial Judge, the instant First Miscellaneous Appeal has been filed by the defendants/appellants. After hearing Mr. Das, learned advocate appearing for the appellants, we admit the appeal for hearing. Since the plaintiff/respondent is represented by his learned advocate, the service of notice of appeal upon the said respondent is dispensed with. The appeal is thus, treated as ready as regards service so far as the plaintiff/respondent is concerned. Since the presence of the other respondents is not necessary for disposal of the appeal, we also dispense with the requirement of service of notice of appeal upon the said respondents on the prayer of the appellants. The appeal is thus, treated as ready as regards service. We are informed by the learned advocates appearing for the parties that all the necessary papers which are required for disposal of the appeal, are included in the stay application. As such, we have decided to dispose of the appeal on the basis of the materials before us by dispensing with the requirement of filing paper books in this appeal. Let us now consider the merit of the appeal. The plaintiff has filed a suit for specific performance of contract. It is alleged that the plaintiff has booked a residential flat on the first floor of premises No. 105/15/1, Girish Ghosh Road under P.O. Liluah. He claimed that a sum of Rs. 21,000/- was paid to the defendants by way of earnest money. He further claimed that subsequently, a further sum of Rs. 4,16,300/- was paid to the defendants towards the consideration money. He claimed that a sum of Rs. 21,000/- was paid to the defendants by way of earnest money. He further claimed that subsequently, a further sum of Rs. 4,16,300/- was paid to the defendants towards the consideration money. The agreed sale price of the said flat was Rs. 18,00,000/-. The plaintiff claims that he is in possession of the said flat but the defendants are trying to dispossess him. He further alleges that the defendants are also now trying to transfer the said flat to a stranger. With these allegations, the plaintiff has filed the suit for specific performance of contract and in such a suit, he has filed an application for temporary injunction seeking injunction for protecting his possession in the suit property and also for restraining the defendants from transferring, alienating and/or creating any third party interest in the suit flat. The Learned Trial Judge after considering the pleadings of the plaintiff made out in the plaint as well as the injunction application held that the plaintiff has succeeded in making out a strong prima facie case and the balance of convenience and inconvenience is also in favour of the plaintiff. Hence, ad interim order of injunction was passed by the Learned Trial Judge. Let us now consider as to how far the Learned Trial Judge was justified in passing the ad-interim order of injunction in such a suit. On reading the pleadings of the plaint as well as the injunction application, we find that though the plaintiff claims that he is in possession of the suit property but he has not elaborated in the pleadings as to how he came into possession in the suit property. There is no pleading as to whether the possession of the suit property was given to the plaintiff by the defendants pursuant to the agreement for sale of the suit property. Delivery of possession to the buyer by the vendor pursuant to an agreement for sale, is the primary consideration for extending the relief under Section 53A of the Transfer of Property Act to the plaintiff. In the absence of such basic pleading that the possession of the suit premises was given to the plaintiff by the defendants pursuant the agreement for sale, we are unable to hold that such possession of the plaintiff can be protected by the order of the Court. In the absence of such basic pleading that the possession of the suit premises was given to the plaintiff by the defendants pursuant the agreement for sale, we are unable to hold that such possession of the plaintiff can be protected by the order of the Court. Court can protect the possession of a party, provided his possession is legal. If the possession of a party is not legal, Court cannot come to the aid of such party to protect his possession. Under such circumstances, such illegal occupier is required to maintain his possession on his own strength without seeking any relief by way of injunction from the Court of law. That apart, we find that though the suit is a suit for specific performance of contract but the basic pleading regarding readiness and willingness of the plaintiff to perform his part of the contract as provided under Section 16 (c) of the Specific Relief Act has not been pleaded in the plaint. Section 16 (c) of the Specific Relief Act provides that no relief of specific performance of contract will be granted to the plaintiff unless the readiness and willingness of the plaintiff is not only averred in the plaint but also is proved in course of the trial of the suit. In the absence of such basic pleading of the plaint, we have no hesitation to hold that the ultimate relief which the plaintiff has claimed in the suit, may not be granted. Since the ultimate relief cannot be granted in the suit as it is framed, no interim relief can be granted in favour of the plaintiff in such a suit. In the aforesaid circumstances, we are of the view that the interim order which was passed by the Learned Trial Judge, cannot be retained on record. The interim order which is under challenge in this appeal, thus, stands set aside. Leave is granted to the defendants to file written objection to the plaintiff’s application for temporary injunction within two weeks from date. The counter objection, if any, be filed by the plaintiff within two weeks thereafter. We request the Learned Trial Judge to make utmost endeavour to dispose of the plaintiff’s application for temporary injunction as early as possible but preferably within eight weeks from the date of communication of this order. The counter objection, if any, be filed by the plaintiff within two weeks thereafter. We request the Learned Trial Judge to make utmost endeavour to dispose of the plaintiff’s application for temporary injunction as early as possible but preferably within eight weeks from the date of communication of this order. It is made clear that the observations which we have made hereinabove, are all prima facie view of this Court which this Court has expressed only for the purpose of consideration of the plaintiff’s prayer for ad interim injunction. As such the Learned Trial Judge is absolutely free to take his own decision on merit of the plaintiff’s application for temporary injunction on the basis of the pleadings of the parties without being influenced by any of the observations made hereinabove. In view of the disposal of the appeal, all pending applications will be deemed to be disposed of. Urgent Photostat certified copy of this order, if applied for, be supplied to the Learned advocate for the appellants immediately. I Agree.