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2017 DIGILAW 335 (CAL)

RENU DEVI JALAN v. ISWAR SARADESWAR SHIBALING JEW

2017-03-29

ASHA ARORA, JYOTIRMAY BHATTACHARYA

body2017
JUDGMENT : Jyotirmay Bhattacharya, J. 1. This first miscellaneous appeal is directed against an order being No. 2 dated 11th May, 2016 passed by the learned Judge, VIIIth Bench, City Civil Court at Calcutta in Title Suit No. 569 of 2016 at the instance of the defendant No. 3/appellant. 2. By the impugned order, ad interim order of injunction was passed directing the parties to maintain status quo with respect to the nature, character and possession of the suit properties as on the date of the order till 13th June, 2016. We are informed by the learned counsel appearing for the parties that the said ad interim order of injunction was extended from time to time and the same is still in force. We are further informed by the learned counsel appearing for the parties that the defendant No. 3/appellant has already entered appearance in the suit and have filed her affidavit in connection with the plaintiffs application for temporary injunction. The plaintiff No. 7/respondent No. 7, however, has not filed any reply to the affidavit-in-opposition filed by the defendant No. 3/appellant in the Court below. 3. The instant appeal was admitted for hearing under the provision of Order 41 Rule 11 of the Code of Civil Procedure on 13th June, 2016. An application for stay has been taken out by the defendant No. 3/appellant in connection with this appeal. When the said application for stay was taken up for consideration, we were invited by the learned counsel appearing for the parties to dispose of the appeal itself on merit on the basis of the materials available before us. 4. Having regard to the fact that the instant appeal is directed against ad interim order of injunction passed by the learned Trial Judge, we are of the view that while considering the legality and/or correctness of the said order, we must restrict our consideration with reference to the pleadings made out by the plaintiffs in their plaint as well as in their application for injunction. Copy of the plaint as well as the copy of the injunction application filed by the plaintiffs are annexed to the application for stay filed by the defendant No. 3/appellant. Since those papers are now available before us, we have decided to dispose of the appeal by dispensing with the requirement of filing paper book in this appeal. 5. Copy of the plaint as well as the copy of the injunction application filed by the plaintiffs are annexed to the application for stay filed by the defendant No. 3/appellant. Since those papers are now available before us, we have decided to dispose of the appeal by dispensing with the requirement of filing paper book in this appeal. 5. Let us now consider as to how far the learned Trial Judge was justified in passing the ad interim order of injunction in the facts of the present case. 6. At the very outset, we would like to mention here that even such ad interim order of injunction was passed by the learned Trial Judge without considering the principles as laid down by the Hon'ble Supreme Court in the case of Shiv Kumar Chadha vs. Municipal Corporation of Delhi and Others, (1993) 3 SCC 161 and in the case of Morgan Stanley Mutual Fund vs. Kartick Das, (1994) 4 SCC 225 . 7. Learned Trial Judge while passing the aforesaid order of injunction, did not even record his satisfaction as to whether the plaintiffs have been able to make out a strong prima-face case for passing an order of injunction in their favour or not. Even the other principles for granting injunction i.e. the balance of convenience and inconvenience of the parties and the irreparable loss which the parties may suffer, if the injunction order is not passed in their favour have not been considered by the learned Trial Judge while passing the ad interim order of injunction. As such, by applying the principles as laid down by the Hon'ble Supreme Court in those decisions, we can very well set aside the impugned order as the impugned order was not passed by adhering to the well settled principles of law which are required to be followed before passing ad interim order of injunction. 8. Be that as it may, here is the case where we find that admittedly a lease deed was executed between the sebaites of deity and the defendants for a period of 99 years. The lease deed contains several terms and conditions. The lessees right to realise rent from the tenants of the demised premises and their right to reconstruct a multistoried building thereon was reserved with a rider that after such construction is completed, ten flats with particular specification will be given to the lessors. The lease deed contains several terms and conditions. The lessees right to realise rent from the tenants of the demised premises and their right to reconstruct a multistoried building thereon was reserved with a rider that after such construction is completed, ten flats with particular specification will be given to the lessors. Time was fixed in the said lease deed for fulfilling the obligation on the part of the lessees with a further rider that the time is the essence of the contract. Though such lease deed was executed on 24th November, 1987, the plaintiffs along with the other co-sebaites filed a suit being Title Suit No. 322 of 2006 against the defendants in the year 2006 praying for declaration that the purported deed of lease dated 24th November, 1987 executed between the lessors and the lessees, is void, fraudulent and contrary to the protection and preservation of de-butter estate and the said lease deed was not acted upon. 9. Permanent injunction was also sought for restraining the defendants and their men and agents from dispossessing the plaintiffs forcefully from the suit. 10. Properties more particularly described in the schedule of the plaint of the said suit. Such suit was filed by alleging that the lease deed which was executed between the lessors and the lessees in respect of the de-butter property is void as, such lease deed was executed between those parties without taking permission from the competent Court of law. 11. Learned Trial Judge, however, was pleased to reject the plaint filed in the said suit by holding, inter-alia, that the said suit is barred by limitation. Learned Trial Judge held that the plaintiffs cannot challenge the legality of such lease deed after enjoying the benefit of the said lease deed. Such conclusion was drawn by the learned Trial Judge as the learned Trial Judge found that not only the premium for execution of the said lease deed was accepted by the sebaites, but also the periodical rent was also accepted form the lessees by the sebaites being the lessors. Learned Trial Judge also held that the cause of action for filing the said suit arose on 24th November, 1987, but the said suit for declaration was filed 14 years thereafter in 2006. This prompted the learned Trial Judge to come to the conclusion that the suit is barred by limitation. 12. We are informed by Mr. Learned Trial Judge also held that the cause of action for filing the said suit arose on 24th November, 1987, but the said suit for declaration was filed 14 years thereafter in 2006. This prompted the learned Trial Judge to come to the conclusion that the suit is barred by limitation. 12. We are informed by Mr. Roy, learned advocate appearing for the defendant No. 7/respondent No. 7 that an appeal has been preferred against the said order of rejection of plaint by the plaintiffs and the said appeal is still pending for consideration before this Court. 13. Be that as it may, the instant suit has been filed by accepting the said lease deed as valid. In the present suit, the plaintiffs have complained that they have served several notices upon the lessees calling upon the lessees to comply with the obligations which they were required to comply with, in terms of the said lease deed. But, since they did not adhere to such request made by the lessors, ultimately a notice was issued on 4th April, 1998 giving the lessees seven days time to comply with the terms of the lease deed which they were required to comply, with a default clause to the effect that in the event, the lessees failed to fulfil their terms of the contract within the notice period, the lease deed will be presumed to have been terminated. 14. It is alleged in the plaint that since the terms of the said notice were not complied by the defendants, the defendants have forfeited their right to remain in possession in the suit property. The plaintiffs have stated that due to forfeiture of the lease, their right of re-entry in the suit premises has matured. They have also stated that they have started collecting rent from various tenants in the suit premises and thus, they claim that they are now exercising their right of possession in the suit premises through the tenants. Complaining that their possession is now under threat, they have filed the instant suit for declaration that they are in rightful possession of the suit premises and their possession cannot be disturbed by the defendant as they have lost their right of possession in the suit property. A decree for permanent injunction has also been sought for in the said suit. 15. A decree for permanent injunction has also been sought for in the said suit. 15. On reading the pleadings made out by the plaintiffs in the plaint as well as in the injunction application, though we find that the plaintiffs have tried to make out a case that the defendants have forfeited their right under the lease deed due to non-compliance of the terms of the contract and the plaintiffs right of re-entry has matured under the said lease deed, but there is no pleading that in exercise of their right of reentry, they have dispossessed the defendants from the suit premises and they are now in actual possession thereof. Thus, on the one hand, we find that the plaint in the earlier suit wherein the validity of the said lease deed was challenged by the plaintiffs along with the other co-sebaites, was rejected by the learned Trial Judge holding that the suit is barred by limitation and the said decision of the learned Trial Judge is still in operation and on the other hand, we find from the present suit that though such notice of termination of the lease was alleged to have been served on 4th April, 1998, but the instant suit was filed in the year 2016. 16. When such a suit was filed 18 years after the alleged termination of the lease deed, we are of the view that the learned Trial Judge ought not to have passed any ad interim order of injunction ex-parte in such a suit when the plaintiffs waited 18 years for seeking such relief by filing such suit in the year 1998. In these set of facts, we set aside the impugned order. 17. We direct the plaintiff No. 7/resondent No. 7 to file affidavit-in-reply to the defendant's opposition filed against the plaintiffs application for temporary injunction in the Court below within two weeks from date. 18. Learned Trial Judge is, thus, requested to dispose of the plaintiffs application for temporary injunction on its own merit and in accordance with law without being influenced by any of the observations made hereinabove, as these observations made hereinabove are all made only for the purpose of disposal of this appeal which is directed against an order of ad interim order of injunction passed by the learned Trial Judge. 19. The appeal and the application filed in connection therewith are, thus, disposed of. 20. 19. The appeal and the application filed in connection therewith are, thus, disposed of. 20. Let the documents which were kept in the sealed cover in pursuance of the order passed by this Court on 16th June, 2016 be sent to the learned Court below in the same condition by special messenger at the cost of the respondent No. 7. Such cost will be deposited by the respondent No. 7 within seven days from date. 21. Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.