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2015 DIGILAW 953 (CAL)

Ram Krishna Pal v. Kamala Devi

2015-12-09

SIDDHARTHA CHATTOPADHYAY

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JUDGMENT : Siddhartha Chattopadhyay, J. Challenging the legal acceptability of the order dated 30.03.2015 passed by the learned District Judge, Howrah in connection with Misc. Appeal No. 48 of 2015, the present petitioner has come before this Court by filing an application under Article 227 of the Constitution of India with a prayer to set aside the impugned order of the learned District Judge, Howrah. 2. Here the petitioner defendant of Title Suit No. 388 of 2015 has contended that the respondent had filed the said suit for a decree of declaration that the present opposite party and the proforma opposite parties are the lawful joint tenants in respect of the suit property and they have every right to occupy the suit property for running their tea selling business and they should not be evicted without due course of law and also prayed for permanent injunction restraining the present petitioner from entering/dispossessing them from the suit shop. 3. At the very initial stage learned Civil Judge, Junior Division, 4th Court at Howrah has rejected the present opposite party/tenants application under Order 39 Rule (1) and (2) on the ground that the present opposite party/plaintiff could not show any document as regards her possession over the suit property. Learned Civil Judge, Junior Division, thereafter, directed the present petitioner/defendant to show cause within ten days as to why the temporary injunction shall not be granted against them. 4. The present opposite party preferred an appeal against such rejection of the order. Leaned District Judge has heard the said Misc. Appeal No. 48 of 2015 and came to the conclusion that the present opposite party established prima facie case that she is a tenant. The learned First Appellate Court relied on the rent receipts produced by the present opposite party/plaintiff. 5. By filing the application under Article 227 of the Constitution of India the present petitioner/landlord contended that predecessor-in-interest of the present petitioners, only out of sympathy, granted permission to Rajnarayan Singh to occupy the said shop room as licensee. Thereafter, he had also filed a suit bearing No. T.S. 86 of 2013 and got an ex parte decree against the present opposite party/tenant. Thereafter, he had also filed a suit bearing No. T.S. 86 of 2013 and got an ex parte decree against the present opposite party/tenant. That ex parte decree was not challenged by the other side and so he had filed an execution case bearing number Title execution 731 of 2014, which was disposed of in his favour and the learned Court below held "disposed of on full satisfaction". 6. According to him, by suppressing all the material facts that the present opposite party/tenant is no more in possession, they filed the Title Suit No. 388 of 2015 and prayed for a declaration that they are the lawful joint tenants. 7. At the time of hearing, learned Counsel appearing on behalf the petitioner has contended that the impugned order of the learned District Judge is to be set aside out rightly on the ground that no rent receipts were produced by the present opposite party/tenant issued after 2003. In the plaint of Title Suit No. 388 of 2015 the opposite party/tenant has categorically admitted that Ramayan Singh @ Rambali Ramayan Singh and Ramvilas Singh were inducted as tenant by the then landlord Pashupati Pal, who had issued rent receipts against the payment of rent by to them. After the demise of original landlord his wife and son became the landlords and for which Ramayan Singh had been paying rent to the hands of the present petitioners, who issued rent receipts against the payment of rent. Significantly enough, after the demise of said Ramayan Singh, the present opposite party began to reside there. The case of the present opposite parties/tenants one such that after the demise of said Ramayan Singh, they became joint tenants. 8. The learned Counsel for the petitioner vehemently opposed such logic saying that in the eye of law there is no question of joint tenancy. After the death of the original tenant, his survivors may be termed as tenants-in-common. Therefore, question of joint tenancy does not arise. In support of his such contention he has referred to the decisions reported in AIR 1998 Cal 221 (Amal Krishna Aditya v. Ganesh Chandra Das) wherein the Hon'ble Division Bench of this Court had relied on the decision of the Apex Court reported in AIR 1968 Supreme Court 751, AIR 1989 Supreme Court 1933. In support of his such contention he has referred to the decisions reported in AIR 1998 Cal 221 (Amal Krishna Aditya v. Ganesh Chandra Das) wherein the Hon'ble Division Bench of this Court had relied on the decision of the Apex Court reported in AIR 1968 Supreme Court 751, AIR 1989 Supreme Court 1933. Hon'ble Court has settled the position of law by holding "the heirs of the deceased-tenant in the present case before us, who inherited the tenancy jointly, became tenants-in-common and not joint tenants as held by the learned Trial Judge relying upon 1963 Supreme Court 468 and the said finding accordingly, cannot be sustained in law". Therefore, legal position is already settled by the Division Bench of this Court, which this Court cannot ignore. 9. At the time of hearing, this Court has drawn the attention of the learned Counsel appearing on behalf of the opposite party/tenant as to whether he has any document to show that he is in possession and whether she has been paying rent to the present opposite party landlord. He admitted that after 2001 no such rent receipts are available with him. His client only maintains a khata in which the opposite party/tenant herself wrote the rent paid by her. That khata does not bear any endorsement of the present petitioner landlord. Therefore, no reliance can be placed upon such document so far as payment of rent is concerned. I wonder how the learned First Appellate Court came to the finding that he was satisfied that the rent receipts establishes that the present opposite party/tenants paid rent, when admittedly there is no rent receipts issued by the present petitioner landlord after the demise of said Ramayan Singh. 10. Learned Counsel appearing on behalf of the present opposite party/tenant has cities two decisions reported in AIR 1988 Cal 25 (Muktakesi Dawn v. Haripada Mazumdar). In the said decision main issue was that the learned Court below did not record his reason at the time of allowing ad interim injunction. Hon'ble Division Bench after a threadbare discussion came to the conclusion "but even then, we are inclined to think that the mandate in the Proviso to R. 3 to record reasons is not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. Hon'ble Division Bench after a threadbare discussion came to the conclusion "but even then, we are inclined to think that the mandate in the Proviso to R. 3 to record reasons is not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. If there are materials on record to show that there were good reasons to pass an ex parte injunction order, the order cannot be set at naught solely on the ground that the Court, while making the order, did not record the reasons for proceeding ex parte". Therefore, in that case sufficient materials were there and for that reason Hon'ble Division Bench allowed ad interim injunction although no sufficient reason was given by the learned Court below. The factual aspect of that case is substantially different from the present one and in my view the said decision cannot be applied here mechanically. 11. Learned Counsel appearing on behalf of the respondent/tenant further contended that against the order of miscellaneous appeal, the present petitioner/landlord still has the right to take part in the hearing regarding application for temporary injunction which is still pending before the Court below. Without availing of that opportunity he has come before this Court which is not tenable in the eye of law. According to him, where right of appeal is there, the affected party must prefer appeal. The right of appeal is a statutory right and where the law provides remedy by filing an appeal on limited grounds, the grounds of challenge cannot be enlarged by filing a petition under Article 226/227 of the Constitution of India. He relied on the decision reported in 2003 (3) SCC 524 (Sadhana Lodh v. National Insurance Company Limited). I have meticulously gone through the said decision. In my view the said decision will not help the present opposite party/tenant on the contrary it will be very useful for the petitioner/landlord. Hon'ble Apex Court at Paragraph 6 of the said aforesaid decision speaks "this being the legal position, the petition filed under Article 227 of the Constitution by the insurer was wholly misconceived. Where a statutory right to file an appeal has been provided for, it is not open to the High Court to entertain a petition under Article 227 of the Constitution. Where a statutory right to file an appeal has been provided for, it is not open to the High Court to entertain a petition under Article 227 of the Constitution. Even if where a remedy by way of an appeal has not been provided for against the order and judgment of a District Judge, the remedy available to the aggrieved person is to file a revision before the High Court under Section 115 of the Code of Civil Procedure. Where remedy for filing a revision before the High Court under Section 115 of CPC has been expressly barred by a state enactment, only in such case a petition under Article 227 of the Constitution would lie and not under Article 226 of the Constitution. As a matter of illustration, where a trial Court in a civil suit refused to grant temporary injunction and an appeal against refusal to grant injunction has been rejected, and a State enactment has barred the remedy of filing revision under Section 115 of CPC, in such a situation a writ petition under Article 227 of the Constitution would lie and not under Article 226 of the Constitution. Thus, where the Legislature has barred a remedy of filing a revision petition before the High Court under Section 115 of CPC, no petition under Article 226 of the Constitution would lie for the reason that a mere wrong decision without anything more is not enough to attract jurisdiction of the High Court under Article 226 of the Constitution. 12. It is perhaps needless to mention that after recommendation of Molly Math Committee there has been a sea-change in the provision for revision. The spirit of Section 115 of CPC speaks that the said section is applicable only "the order, if it had been made in favour of the party for filing a revision would have finally disposed of the suit or other proceeding..". The impugned order passed in connection with Misc. Appeal No. 48 of 2015 if it would have been passed in favour of the present petitioner in that case suit would not have been finally disposed of. Naturally Section 115 of CPC was not the remedy for the present petitioner/landlord. The impugned order passed in connection with Misc. Appeal No. 48 of 2015 if it would have been passed in favour of the present petitioner in that case suit would not have been finally disposed of. Naturally Section 115 of CPC was not the remedy for the present petitioner/landlord. Hon'ble Apex Court clearly held in the aforesaid decision that where remedy for filing a revision before the High Court 115 of CPC has been expressly barred by an enactment, only in such a case a writ petition under Article 227 of the Constitution would lie and not under Article 226 of the Constitution. In the instant case, the present petitioner has filed the application under Article 227 of the Constitution. Accordingly, I am of the view that the petition is very much maintainable. 13. One other important aspect is such that since I have already held that the present opposite party/tenant comes within the purview of tenants-in-common, so there is no question of serving notices upon all. On the contrary, it appears from the record that this present opposite party landlord has filed a Title Suit No. 86 of 2013 much before the suit filed by the present opposite party/tenant. He got an ex parte decree in Title Suit No. 86 of 2013 and, thereafter, he filed an execution case which was also decided in his favour and he got the possession of the tea selling shop room, but suppressing all these things she had filed such an application before the learned Civil Judge, Junior Division and in turn to the learned District Judge, Howrah. If the above stated factual aspects were brought to the notice of the learned District Judge, obviously that order could not have been passed. Therefore, I have no hesitation to say that the present opposite party has procured this order from the learned District Judge, by throwing dust in the eyes of the Court. 14. I am armed with a decision reported in Ramrameshwari Devi v. Nirmala Devi, 2011 (8) Supreme Court cases 249, wherein Hon'ble Apex Court held that if a truant/unruly litigant tries to abuse the process of Court, makes dilatory tactics to cause harassment of his adversary, wastes the Courts time in that case he must be visited with penalty by imposing a cost and to grant mesne profit at market rate to the affected party. Hon'ble Apex Court further held that if any party is found to have obtained ex parte injunction on the basis of false pleadings and forged documents, he should be punished. On scrutiny of the entire background of this case and the documents it is abundantly clear that the present opposite party/tenant had seriously created obstacles at every stage. 15. In such circumstances, I find there is enough merit in this revisional application and accordingly it is allowed. I am not unmindful to the observation of the Hon'ble Apex Court for payment cost and to punish the wrong doer. Therefore, I want to impose cost of Rs.50,000/- to be paid by the present opposite party/tenant in favour of the present petitioner within two weeks from the date of the order. 16. Let a copy of this order be sent to the Learned Courts below for their information and taking necessary action in accordance with law. 17. Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.