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2016 DIGILAW 877 (CAL)

Nilotpal Banerjee v. Bholanath Kar

2016-11-16

ISHAN CHANDRA DAS, JYOTIRMAY BHATTACHARYA

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Jyotirmay Bhattacharya, J.: 1. This first miscellaneous appeal is directed against an order being No. 3 dated 23rd September, 2016 passed by the learned Judge, 10th Bench, City Civil Court at Calcutta in Title Suit No. 1262 of 2016 at the instance of the plaintiffs/appellants. 2. By the impugned order, the plaintiffs’ prayer for ad-interim injunction was refused by the learned Trial Judge by holding, inter alia, that the plaintiffs have failed to make out a prima facie case for grant injunction in their favour and the balance of convenience and inconvenience is also not in their favour for granting ad-interim injunction. Notice relating to the plaintiffs’ application for temporary injunction was directed to be served upon the defendant. Plaintiffs felt aggrieved by the said order passed by the learned Trial Judge. Hence, the instant first miscellaneous appeal was filed. 3. This appeal was admitted for hearing on 6th October, 2016. After the appeal was admitted, the parties were directed to maintain status quo with regard to exercise of the car parking right of the parties in the disputed car parking space till 15th November, 2016 or until further order whichever is earlier. 4. When we were considering the appellants’ prayer for extension of the said interim order, we were invited by the learned counsel appearing for the parties to dispose of the appeal itself on merit on the basis of the material available before us. We are informed by the learned counsel appearing for the parties that all the relevant papers which are necessary for disposal of the appeal are annexed to the stay application. 5. Since the necessary parties are now before us, we have decided to dispose of the appeal itself on merit by dispensing with requirement of filing paper book in this appeal. 6. Let us now consider the merit of the instant appeal in the facts of the present case. 7. The plaintiffs filed a suit for declaration and injunction. They claimed that the plaintiff no.1 is the owner of the suit property and the plaintiff no.2 has the life interest in the suit property. The plaintiff no.1 is the son of the plaintiff no.2. A development agreement was entered into between the plaintiffs and the developer for construction of a multi-storied building on the suit property. They claimed that the plaintiff no.1 is the owner of the suit property and the plaintiff no.2 has the life interest in the suit property. The plaintiff no.1 is the son of the plaintiff no.2. A development agreement was entered into between the plaintiffs and the developer for construction of a multi-storied building on the suit property. It was agreed between the plaintiffs and the developer that the plaintiffs will get 50% of the constructed area and remaining 50% of the constructed area will be within the developer’s allocation. It was also provided in the said development agreement that the ground floor will be within the exclusive allocation of the developer. 8. It is alleged by the plaintiffs that in the absence of the plaintiff no.1, the plaintiff no.2 sold a flat on the 3rd floor of the said premises being Flat No. 3A together with car parking space in the ground floor of the said premises measuring about 202 sq.ft. to the defendant. The car parking space is demarcated in the plan and/or map annexed to the sale deed. 9. The plaintiff no.1 took a car parking space on rent for parking his car in the ground floor of the said premises from the developer. The measurement of the said car parking space is 100 sq.ft. The said car parking space lies immediately at the back of the car parking space which was purchased by the defendant. The plaintiffs allege that the parking arrangement of the respective parties is such that unless the car of the defendant is taken out from his car parking space, the plaintiff no.1 is unable to take out his car from the said building. The plaintiffs also allege that identical difficulty is faced by the plaintiff no.1 while parking the car in the space taken by him on rent from the developer, inasmuch as, unless the car of the defendant is taken out from his car parking space, the plaintiff no.1 cannot park his car in the portion taken by him on rent. 10. Under such circumstances, the plaintiffs have filed the said suit and have sought for temporary injunction for restraining the defendant from creating any disturbance and nuisance in the peaceful possession and occupation and normal use of the owner’s allocation and the car parking space at the suit premises No. 38/5, Bagbazar Street, Kolkata-700003 by the petitioners/appellants. 11. 10. Under such circumstances, the plaintiffs have filed the said suit and have sought for temporary injunction for restraining the defendant from creating any disturbance and nuisance in the peaceful possession and occupation and normal use of the owner’s allocation and the car parking space at the suit premises No. 38/5, Bagbazar Street, Kolkata-700003 by the petitioners/appellants. 11. Learned Trial Judge, after considering the pleadings of the plaintiffs made out in the plaint as well as in the injunction application, refused to pass ad-interim order of injunction in favour of the plaintiffs by holding that the plaintiffs have failed to make out a prima facie case in the injunction proceeding. 12. Let us now consider as to haw far the learned Trial Judge was justified in arriving at such a conclusion at this stage. 13. We have already indicated above that the plaintiffs claim that the plaintiff no.1 has taken a car parking space measuring about 100 sq.ft. on the ground floor of the suit premises on rent from the developer. Rent receipts granted by the developer showing letting out of the said car parking space in favour of the plaintiff no.1 are annexed to the injunction application. As such, we find that the plaintiff no.1 has succeeded in making out his right to park his car in the car parking space which he has taken on rent from the developer. The development agreement entered into between the plaintiffs and the developer shows that the entire ground floor was included in the developer’s allocation. As such, right to let out the car parking space by the developer to his tenant cannot be denied. 14. Thus, when the plaintiff no.1, prima facie, establishes his tenancy right in respect of the car parking space and when he is obstructed by the defendant from parking his car and/or taking out his car from the said car parking space, according to his convenience, we are of the view that a prima facie case has been made out by the plaintiffs for going to trial. At the same time, we find that the defendant has not purchased any interest in the ground floor of the said premises from the developer. The plaintiff no.2 from whom the defendant purchased the car parking space in the ground floor, was not included within her allocation. At the same time, we find that the defendant has not purchased any interest in the ground floor of the said premises from the developer. The plaintiff no.2 from whom the defendant purchased the car parking space in the ground floor, was not included within her allocation. As such, we, prima facie, hold that the plaintiff no.2 had no title and/or interest in respect of the car parking space which was sold to the defendant. 15. Since the defendant has purchased the car parking space from the plaintiff no.2 who had no title in the said portion of the suit property, we are of the prima facie view that the defendant has not purchased any legal right in respect of the car parking space which he allegedly purchased form the plaintiff no.2. As such, we hold that the defendant cannot legally exercise his right of ownership in respect of the car parking space which he allegedly purchased from the plaintiff no.2 having no title therein. However, what right the defendant has purchased from the plaintiff no.2 is a matter of controversy in the suit itself. 16. Be that as it may, admittedly the defendant is parking his car in the car parking space which he allegedly purchased from the plaintiff no.2. The plaintiff no.1 is not claiming any title and/or interest in the car parking space which was allegedly purchased by the defendant. As such, how far the plaintiffs can raise the question relating to title with regard to the said car parking space allegedly purchased by the defendant, will be a matter in issue in the suit itself. 17. Be that as it may, fact remains that since the defendant’s car parking space is on the front of the car parking space of the plaintiff no.1, the plaintiff no.1 cannot either take in and/or take out his car in and/or from his tenanted portion unless the defendant removes his car from the car parking space which he allegedly purchased from the plaintiff no.2. As such, we feel that some sort of interim arrangement should be made, so that both the parties can use their respective car parking spaces until the plaintiffs’ application for temporary injunction is finally decided. 18. As such, we feel that some sort of interim arrangement should be made, so that both the parties can use their respective car parking spaces until the plaintiffs’ application for temporary injunction is finally decided. 18. Since the court normally refuses to pass interim order of injunction in a case where regular and day to day supervision is necessary, this Court feels that instead of passing any interim order of injunction with regard to exercise of the right of parking car by the parties in their respective allotments, justice will be subserved if we direct the parties to keep the duplicate key of the defendant’s car with the caretaker and/or darwan of the said premises, so that whenever the plaintiff no.1 wants to take in and/or take out his car in and/or from the parking space taken by him on rent from the developer, he can do so by first removing the car of the defendant from his car parking space with the duplicate key to be retained by the caretaker and/or darwan. Needless to mention here, after taking in and/or taking out the car of the plaintiff no.1 from his car parking space, the plaintiff no.1 will again park the car of the defendant in the space which the defendant has allegedly purchased from the plaintiff no.2. 19. We, thus, direct the defendant to supply the duplicate key of his car to the caretaker and/or darwan of the said premises by 9 a.m. on 18th November, 2016. The caretaker and/or darwan of the said premises will be the custodian of the said key as an officer of the Court. This arrangement will continue until the plaintiffs’ application for temporary injunction is finally decided. 20. The defendant is directed to file affidavit-in-opposition to the plaintiffs’ application for temporary injunction within four weeks from date. Reply, if any, be filed by the plaintiffs within one week after reopening of the court after the ensuing Xmas Vacation. 21. We request the learned Trial Judge to dispose of the plaintiffs’ application for temporary injunction as early as possible, but preferably by the end of February 2017. 22. Mr. Manna, learned advocate appearing for the defendant/respondent is directed to communicate this order to his client by 6 p.m. today, so that the direction passed by this Court hereinabove is complied with by his client in true spirit. 23. 22. Mr. Manna, learned advocate appearing for the defendant/respondent is directed to communicate this order to his client by 6 p.m. today, so that the direction passed by this Court hereinabove is complied with by his client in true spirit. 23. Both the appeal and the application filed in connection therewith are, thus, disposed of. 24. Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.