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2016 DIGILAW 254 (CAL)

Shivam Dealcom Private Limited v. Manju Bagchi

2016-03-09

SOUMEN SEN

body2016
JUDGMENT : Soumen Sen, J. This revisional application is directed against the order dated 9th June, 2015 passed in connection with an application filed by the petitioner for recalling of the order dated 10th April, 2015. The Trial Court by an order dated 10th April, 2015 allowed the application for police help. The plaintiffs filed a suit for declaration and injunction against the opposite party no. 1 and others. The plaintiffs alleged that they are the owners of the suit property. The plaintiffs alleged that while they are in possession and occupation of the suit property all on a sudden the principal defendant, being the petitioner herein, who is a promoter have accumulated huge men and materials in front of the suit property in order to make construction on the lands belonging to the plaintiffs. The defendant no. 1 claimed ownership in respect of the suit property. On a plea that the names of the plaintiffs and proforma defendant nos. 1 and 2 have not been recorded in the latest L.R.R.O.R. and no mutation was made in the name of the plaintiffs and proforma defendants in South Dum Dum Municipality and accordingly the plaintiffs and proforma defendant have not acquired any right, title and interest in or over the suit property and as such the plaintiffs have no right to interfere with the proposed construction made by the petitioner. Initially the Trial Court refused to pass any ad interim order. The plaintiffs preferred an appeal and the Appellate Court by a detailed judgment restrained the defendant no. 1/petitioner from encroaching any portion of the suit property and from doing any construction over the suit property specifically stated in the schedule of the plaint till the disposal of the application pending in connection with the aforesaid suit. Before the Appellate Court the petitioner produced voluminous documents in order to establish the right over the suit property. The Appellate Court on examination of the voluminous papers and documents produced, observed that the said petitioner had failed to produce a single scrap of papers to show any right, title or interest in respect of the suit property. The petitioner also failed to establish that the said petitioner under an agreement with Rukmini Properties Private Limited was entitled to make construction on the land belonging to Rukmini Properties Private Limited. The petitioner also failed to establish that the said petitioner under an agreement with Rukmini Properties Private Limited was entitled to make construction on the land belonging to Rukmini Properties Private Limited. The Appellate Court was of the prima facie view that even if it is accepted that the defendant has a right to make construction as a developer under an agreement with Rukmini Properties Private Limited even then the principal defendant, namely the petitioner herein has failed to produce any document to show its right, title and interest and possession over the suit property and its locus to challenge the right, title and interest and possession of the plaintiffs. The Appellate Court also found that the principal defendant was adamant to proceed with the construction on the suit property and tried to defeat the right of the plaintiffs by creating the cloud over its right, title and interest over the suit property. On such consideration an ad interim order of injunction was passed by the Appellate Court. Initially, a revisional application was filed by the petitioner, being C.O. 3838 of 2013, which was dismissed as withdrawn on 25th February, 2016. 2. The plaintiffs after the disposal of the appeal filed an application before the Trial Court for implementation of the order of injunction of police help. The plaintiffs alleged that the petitioner is flouting the order of injunction by constructing the pucca structure over the schedule property in spite of having knowledge of the order of injunction passed by the Appellate Court. The Trial Court on consideration of the materials on record on 10th April, 2015 passed an order in the said petition filed under Order 39, Rule 7 read with Section 151 of the Code of Civil Procedure by directing the Inspector-in-Charge of Dum Dum Police Station to look into the matter so that neither party to the suit can violate the order of interim injunction passed in this case. It appears from the said order that the defendant appeared and submitted that the said application may be heard after giving an opportunity to the petitioner to file a written objection. The Court appears to have refused to grant such prayer. However, the petitioner was heard before the said order was passed. It appears from the said order that the defendant appeared and submitted that the said application may be heard after giving an opportunity to the petitioner to file a written objection. The Court appears to have refused to grant such prayer. However, the petitioner was heard before the said order was passed. The Trial Court recorded in the order that the defendant has failed to satisfy the Court as to how the defendant would be prejudiced if the order of implementation of interim injunction with the assistance of the police is passed by this Court. The petitioner thereafter filed an application under Section 115 of the Code of Civil Procedure but no such order has been passed for recalling the said order. This interpretation is given for the benefit of the petitioner as on the face of the said application it would appear that the ingredients of Section 115 of the Code of Civil Procedure was conspicuously absent. The petitioner wanted to create the said cloud over the plaintiffs' right, title and interest over the suit property. The said application was dismissed by the Trial Court on the basis of the ratio laid down by this Court in Paresh Ch. Das v. Bikash Kr. Das reported in 2010(2) CLJ 110(Cal). The Trial Court felt that the said application was filed as a ploy to delay the implementation of the order of injunction. The Trial Court apart from Paresh Ch. Das (supra) has relied upon three decisions of this Court, namely C.O. 1480 of 2010, AIR 1983(Cal) 266 and 1985 CWN 958 and held that it is the duty of the Court to see that it's order of injunction is to be properly implemented and if it found that there is reasonable threat from the side of the defendant for doing any mischief in violation of order of injunction, then the Court should pass necessary direction upon the police authority to render assistance to the parties in whose favour injunction was granted, so that the order of injunction is strictly implemented. 3. Mr. 3. Mr. Saptansu Basu, learned senior counsel appearing on behalf of the petitioner submits that the Trial Court although had noticed the judgment delivered by a Coordinate Bench of this Court in Joydeb Das v. Khandubala Das reported in 2012(1) CHN (CAL) 300 but have ignored to follow the guidelines mentioned in the said judgment on a plea that Paresh Ch. Das (supra) was not considered in Joydeb Das (supra). Mr. Basu in his usual fairness submits that there is no apparent conflict between Paresh Ch. Das (supra) and Joydeb Das(supra), as according to Mr. Basu Paresh Ch. Das (supra) has been explained in Joydeb Das (supra).) The learned senior counsel submits that in Joydeb Das (supra) paragraph 9 has taken note of the said judgment. The said judgment although noticed but not being discussed about. The Court had proceeded to interpret under Section 151 of the Code of Civil Procedure in the light of Order 21, Rule 32 and Section 36 of the Code which primarily dealt with implementation of final decree of injunction. The said provisions deal with execution of decree which by reason of the deeming provision under Section 36 of the Code of Civil Procedure would apply to execution of the order including the payment under an order. 4. The grievance of the petitioner appears to be that before exercising jurisdiction under Section 151 of the Code of Civil Procedure for police help, the Trial Court would be required to arrive at a finding that the facts are not in dispute and the party violated the order and such violation has caused serious prejudice and for the ends of justice Courts interference is required. 5. Mr. Basu further submits that the aforesaid four ingredients are required to be present before an application under Section 151 of the Code of Civil Procedure would be implemented. 6. This Court has invited attention to Mr. Basu to a Division Bench Judgement of this Court in Cold Gold Syntex Pvt. Ltd. v. Allahabad Bank reported in 2004 (1) CHN 354 in which the Hon'ble Division Bench was decided the scope of Section 151 of the Code vis-a-vis under Order 39, Rule 2A of the Code. Mr. Basu would submit that the ratio in Cold Gold Syntex Pvt. Ltd (supra) is also applicable in the instant case. Mr. Basu would submit that the ratio in Cold Gold Syntex Pvt. Ltd (supra) is also applicable in the instant case. The principal grievance of the petitioner is that the petitioner should have been given opportunity of hearing before passing any order in respect of the petition under Section 151 of the Code. 7. The said contention of the petitioner is required to be considered on the basis of the pleadings that are already on record and which goes to show that the Appellate Court has arrived at a definite finding that the petitioner is attempting to encroach the land of the plaintiffs. It appears from the order of the Appellate Court that the petitioner wanted to raise construction over the suit land. 8. The very fact that the petitioner filed a revisional application against the order, goes show that the petitioner was really aggrieved by the order of injunction which prevents the petitioner from raising any construction over the suit property. The petitioner raises the self-same issues that were raised before the Appellate Court in respect of the suit property. The petitioner in this proceedings contends that the petitioner is not raising any construction over the suit property. If that be the situation, the status report which was directed to be filed would not cause any prejudice to the petitioner. On the other hand it is a duty of the Court to ensure that there is no violation of the interim order and in the event the said orders are disobeyed, the Court has every right to invoke its inherent jurisdiction in spite of alternative remedies available under the Contempt of Courts Act or under Order 39, Rule 2A of the Code of Civil Procedure. In Cold Gold Syntex Pvt. Ltd. (supra) an application under Section 151 of the Code was filed for implementation of the order of status quo with the police help and it was held that neither one can take advantage of nor can put an order to abuse. None of the parties can be allowed to take advantage of his own wrong obtained by violation of the order. None of the parties can be allowed to take advantage of his own wrong obtained by violation of the order. at this stage it is not possible to come to a finding that there has been any violation of the order of injunction and precisely for that reason by the impugned order dated 10th April, 2015 the Inspector-in-Charge, Dum Dum Police Station was directed to ensure that neither a party can violate the order of injunction passed in this case. 9. Under such circumstances, the impugned order is modified to the extent that the police authorities shall inspect the suit property in question and file a status report taking into consideration the fact that the petitioner is restrained from encroaching the suit property and from doing any construction of the suit property specifically stated in the schedule of the plaint till disposal of the injunction application. 10. Since the learned advocate appearing on behalf of the opposite party nos. 1 to 5 submits that the requisites have been filed, the Officer-in-Charge, Dum Dum Police Station is directed to file a status report within two weeks from the date of communication of this order before the learned Civil Judge (Senior Division), 2nd Court at Barasat. 11. The Trial Court is directed to dispose of the application under Order 39, Rule 7 of the Code of Civil Procedure within four weeks from date without granting any adjournment to either of the parties, unless unavoidable. In the event it is found that construction has been raised in violation of the order of injunction, it would be open for the Trial Court to pass an order of demolition and to impose exemplary cost on the persons found guilty of such violation after giving an opportunity of hearing. The Trial Court may consider the prayer for implementation of the order by police help on consideration of the status report to be filed in terms of this order. 12. The revisional application is disposed of. There will be no order as to costs.