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2016 DIGILAW 520 (CAL)

Vednarayan Singh v. Ranajit Singh

2016-06-28

SOUMEN SEN

body2016
JUDGMENT : Soumen Sen, J. 1. Inspite of service none appears to oppose this application. in this revisional application the petitioner has challenged the order passed by the Appellate Court in reversing the order passed by the Civil Judge (Junior Division), by which the first Court passed the interim injunction application directing the defendant to open the padlock in the front shatter of the suit shop room for the enjoyment of the same by the plaintiff till disposal of the suit. 2. The plaintiff claims to be a tenant under the defendant since the year 1992. The petitioner/plaintiff relied upon one agreement dated 14th April 1992 executed between the plaintiffs and the defendants. Following that agreement the plaintiff paid Rs. 24,000/- to the defendants. The plaintiff alleged that at the time he had paid Rs. 34,490/- to the defendant for construction of the suit room and towards other expenses. Before the Trial Court the defendants alleged that initially, the rent was fixed at Rs. 200/- per month and then another agreement was executed on 7.1.1996 and according to that agreement the rent amount was fixed as Rs. 400/- per English calendar month out of which Rs. 250/- is to be paid by the tenant and the rest Rs. 150/- to be deducted from the advances made towards construction charges. Subsequent on 15.7.2008 a third agreement was executed by and between the parties wherein the rent was enhanced to Rs. 460/- and the plaintiff after deducting a sum of Rs. 150/- from the construction charge used to pay Rs. 310/- as monthly rent as agreed between the parties. The plaintiff alleged that on 6.11.2012 the defendants along with their associates dispossessed the plaintiff from the tenanted premises and put padlock on the tenanted premises from both front and backside of the same. The plaintiff informed the matter to the local P.S. but no effective action has been taken by the police. In that compelling situation by filing this suit the plaintiff prayed for instant relief in the mandatory nature whereby the Court may be pleased to direct the defendants to open the lock of the suit room and made it available for the enjoyment of the plaintiff. 3. The learned first Court upon consideration of the pleadings arriving at a finding that the tenancy of the plaintiff in respect of the shop room is admitted by the defendants. 3. The learned first Court upon consideration of the pleadings arriving at a finding that the tenancy of the plaintiff in respect of the shop room is admitted by the defendants. It is also an admitted position that the physical possession of the shop room is no more with the plaintiff on the date of filing of the suit and he could not access the same due to the fact that the same is kept under lock and key. 4. Initially, the defendants alleged that the plaintiff is causing disturbance to the peaceful possession and enjoyment of the suit room by the defendants and harassed them by making some false complaints and allegations. It is further pleaded that no bathroom or latrine had ever been let out to the plaintiff and this plaintiff by surrendering his tenancy has no subsisting right or interest over the suit room. In their written statement the defendants admitted that defendants No. 2 being one vegetable vendor runs his business in front of the suit room and the plaintiff kept the room under lock and key. It is further pleaded by the defendants that the plaintiff had agreed to hand over the possession of the suit shop room in lieu of one asbestos shedding for residential use. In pursuant thereof the defendants make necessary arrangement of the asbestos room and in lieu of it plaintiff handed over the key of the suit shop room to the defendants. Dispute occurred when the plaintiff went further to open the suit shop room in order to run his vegetable business and claiming his subsisting right over the suit shop room. It is pleaded by the defendants that the plaintiff voluntarily relinquished his tenancy right over the shop room in lieu of residential accommodation and filed this suit with some false claim which is required to be rejected. 5. The Trial Court relied upon the decision of the Hon'ble Supreme Court in Ramchandra Keshav Adke v. Govind Joti Chavare reported in (1975) 1 SCC 559 for the proposition that a party alleging surrender of tenancy would be required to establish that such surrender has been made voluntarily and the tenant was aware of the nature and consequence of such surrender. Although the surrender can be implied by overt act but the same must be proved by the defendant to the satisfaction of the Court. 6. Although the surrender can be implied by overt act but the same must be proved by the defendant to the satisfaction of the Court. 6. The Trial Court rejected the plea of surrender of tenancy in the following words: "I have also to mention that the principle of implied surrender cannot be made applicable on the facts of this case as because the earlier tenancy is governed by the provisions of the WBPT Act which provides for certain provision for the protection of the tenant it lays down that no decree for recovery of possession of any premises governed by the provisions of the WBPT Act shall be made by any Court in favour of the landlord against a tenant except on one more of the grounds mentioned in the section itself. It is true that the act does not provide that a tenant has no right of surrender of his tenancy. But in the context of the provisions of the act such a surrender made by the tenant has to be strictly. In this respect the decision reported in AIR 1991 Calcutta 88 as "Hindustan Commercial Co. constructed. There must be some indication to show that the tenant has voluntarily surrendered his tenancy. On the facts of the case it does not appear probable as to shy the tenant would surrender his monthly tenancy and enter into another premises without any written agreement while the tenancy was created by one written agreement. Vs. Baidyanath Bhattacharjee can be relied. ......................................................... ......................................................... ................. Under such circumstances the defendants, being unsuccessful to satisfy this court about the act of surrender by the plaintiff of the suit premises which is a shop, cannot be allowed to perpetrate the wrong they have committed by dispossessing the plaintiff therefrom the suit shop room and causing interference in his peaceful possession." 7. On such considerations, the Trial Court passed a mandatory injunction. 8. The Appellate Court, however, reversed the said findings on the ground that at the interlocutory stage an interim mandatory injunction cannot be granted. The Appellate Court was of the view that if the Court below comes to a finding that the surrender of tenancy is lawful while hearing the mandatory injunction, It would be prejudging the issue in the suit namely whether there was at all any surrender of tenancy or not. 9. The Appellate Court was of the view that if the Court below comes to a finding that the surrender of tenancy is lawful while hearing the mandatory injunction, It would be prejudging the issue in the suit namely whether there was at all any surrender of tenancy or not. 9. An interlocutory application is decided on balance of convenience or inconvenience. If the Court is satisfied that manifest injustice is caused to a party which requires immediate intervention of the Court, the Court would not hesitate to pass a mandatory injunction without waiting for the suit to be decided on such issues. 10. The order of mandatory injunction would subsist only during the pendency of the suit. On the basis of the findings arrived at by the Court below, in my view, the Appellate Court has completely misdirected its mind in reversing the order of the Court below. 11. The Appellate Court has failed to appreciate the concept of mandatory injunction and has erred in holding that such relief cannot be granted at the interlocutory stage. 12. Justice Megarry in Woodford & Anr. v. Smith & Anr. reported in 1970 (1) All ER 1091 held that if the plaintiff is able to establish a manifest injustice being caused to the plaintiff and for which no further evidence is called for, in my view, the Court is not precluded from passing a mandatory order which would have the practical effect of granting the sole relief, claimed. The cases are not restricted only to the preservation of property in Woodford (supra) Justice Megarry has gone to the extent of saying that there is nothing to prevent the Court in a proper case from granting on motion substantially all the reliefs claimed in the action. The Court in such a situation would be required to look at the case as a whole and if the Court is satisfied with the grounds made out in the petition, the Court should not refuse to grant injunction. 13. In Acrow (Automation) Ltd. v. Rex Chainbelt Inc & Anr. reported in 1971 (3) All ER 1175 it was reiterated that at the interlocutory stage, it may call for virtually deciding the action, but that often happens considering the nature of the controversy and the action brought before the Court. 14. In Heywood & Anr. 13. In Acrow (Automation) Ltd. v. Rex Chainbelt Inc & Anr. reported in 1971 (3) All ER 1175 it was reiterated that at the interlocutory stage, it may call for virtually deciding the action, but that often happens considering the nature of the controversy and the action brought before the Court. 14. In Heywood & Anr. v. B.D.C. Properties, Ltd. reported in 1963 (2) All ER 1063 the Court of Appeal dealt with the objection that to vacate the land charge would be equivalent to giving judgment on an interlocutory application in the action in favour of exactly the relief which the plaintiffs would obtain at the eventual hearing of the action in the ordinary way by reiterating the principle that although the general rule is that the Court will not grant, on motion, that relief which ought to be granted at the hearing, yet it will do so in some cases. The ratio of the decision seems to be that the order would largely depend on the circumstances and the convenience of the matter. It was stated at Page 1067 of the report that "the matter of substance to which I referred is whether it is proper on an interlocutory application-this would apply equally whether the application were by way of motion or by way of summons - to make an order which has the effect of granting the plaintiffs substantially the whole of the relief claimed in the action. That is the real complaint of substance which has been put before us. My lord has already referred to the two cases cited to us, Bailey v. Ford (1843) 13 Sim. 495) and the recent case before this Court of Bailey (Malta), Ltd. v. Bailey ("The Times'," May 29, 1963). Those cases, I think, do show that it is only in unusual circumstances that the Court ought to take the step of granting substantially the whole relief claimed in the action on an interlocutory application. But they equally show that that is a procedure which, in a proper case, is available. In my judgment, having regard to the admitted fact that the alleged contract registered was no contract at all, this is one of those cases in which it is proper and appropriate to grant by way of interlocutory application the relief which the judge has granted. In my judgment, having regard to the admitted fact that the alleged contract registered was no contract at all, this is one of those cases in which it is proper and appropriate to grant by way of interlocutory application the relief which the judge has granted. In those Circumstances I agree that the judge came to the right conclusion, and that the appeal should be dismissed. 15. The aforesaid principles have been followed by our Courts also and if any reference is called for one can refer to the following decisions :- (1) AIR 1985 Cal 248 (Indian Cable Company Ltd. v. Smt. Sumitra Chakraborty) (2) 1998 (2) CLT 562 (HC) (Premier Industries (India) Ltd. v. Alliance Credit and Investments) 16. In fact, large number of English decisions were referred to and considered in Dorab Cawasji Warden v. Coomi Sorab Warden & Ors. reported in 1990 (2) SCC 117 . In considering the power of the Court to grant such Interlocutory mandatory injunction. It was held in Dorab Cawasji Warden v. Coomi Sorab Warden & Ors. (S) that in certain special circumstances the Court can pass such mandatory order the interlocutory stage. 17. It is relevant to quote Paragraphs 14 and 15 of the said decision which states as follows :- "14. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are : (1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction. (2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money. Generally stated these guidelines are : (1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction. (2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money. (3) The balance of convenience is in favour of the one seeking such relief. 15. Being essentially an equitable relief the grant or refusal of an interlocutory mandatory injunction shall ultimately ret in the sound judicial discretion of the Court to be exercised in the light of the facts and circumstances in each case. Though the above guidelines are neither exhaustive or complete or absolute rules, and there may be exceptional circumstances needing action, applying them as prerequisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion." 18. On such considerations, the order passed by the Civil Judge (Junior Division) is restored and the Appellate Court's order is set aside. 19. The enjoyment of the shop room in terms of the order passed by this Court shall not create any equity in favour of the plaintiff and shall abide by the result of the suit. 20. The order dated 19th March 2014 passed by the Civil Judge (Junior Division), Asansol is restored. 21. The order passed by the Appellate Court is set aside. 22. Learned Civil Judge (Junior Division), Asansol is directed to dispose of the suit as expeditiously as possible and preferably within a period of one year from the date of commencement of trial without granting any adjournment to either of the parties. 23. This revisional application stands disposed of. There shall be no order as to costs.