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2018 DIGILAW 519 (CAL)

Chitra Adhikari Shroff v. Gautam Shroff

2018-07-25

SAHIDULLAH MUNSHI

body2018
JUDGMENT : Sahidullah Munshi, J. 1. This revisional application is directed against order no.31 dated 18th April, 2016, passed by the learned Civil Judge (Senior Division), 1st Court at Alipore, 24-Parganas (South), in Title Suit No.491 of 2014. By the order impugned, the learned Court below has rejected the petitioner’s application under Section 151 of the Code of Civil Procedure wherein she prayed for restoration of her possession in the suit property. It is the petitioner’s case that being the wife of defendant no.1, she has a right of residence at the suit property. According to the petitioner, her husband, defendant no.1, entered into an agreement with the developer who agreed to sell the flat in question being the suit property to the defendant no.1 on consideration mentioned in the agreement. According to her, possession was handed over to the defendant no.1 and being the legally married wife, she was living in the suit premises with her husband. The petitioner, apprehending dispossession at the instance of the defendant no.1, filed a suit for declaration contending, inter alia, that being legally married wife, she is entitled to get maintenance from the defendant no.1 and that she has a right of residence in the suit property and the same be charged against the maintenance of the plaintiff. She also prayed for permanent injunction restraining the defendant and/or his men, agents from selling, transferring, alienating, encumbering and/or disturbing peaceful possession and/or ousting the plaintiff from the suit property and/or from causing any physical violence upon the plaintiff in any manner whatsoever. According to the plaint, a copy of which annexed to the petition, the suit property is a flat being no.6D containing a built up area of 1094 Sq.ft. more or less on the 6th floor of the Block – A of the Building Complex lying and situated at premises no.264, Netaji Subhas Chandra Bose Road, Police Station – Jadavpur, Kolkata – 700047, District – South 24-Parganas. 2. In that suit, the petitioner filed an application for temporary injunction under Order XXXIX, Rules 1 and 2 and also prayed for ad interim injunction. In the temporary injunction application, the petitioner contended that defendant is the sole and absolute owner of the suit property. After purchase of the suit property, the plaintiff and defendant, being husband and wife, shifted to the suit property and made the same habitable. In the temporary injunction application, the petitioner contended that defendant is the sole and absolute owner of the suit property. After purchase of the suit property, the plaintiff and defendant, being husband and wife, shifted to the suit property and made the same habitable. The defendant, in a pre-planned manner, left the suit property without any intimation to the plaintiff on 31.10.2014 and since then the plaintiff had been residing in the suit property alone and was in exclusive possession thereof. It was further contended that the plaintiff is residing in the suit property but the defendant, with his mala fide intentions and to succeed in his cunning plans in various ways, was making conspiracy to oust the plaintiff from the suit property though the plaintiff had every right over the suit property and also had right of residence thereat. 3. It is in the injunction application that on 22nd November, 2014, the defendants, along with their men and agents and their muscle men, came to the suit property and tried to oust the plaintiff therefrom forcefully and illegally but somehow, the plaintiff, with the help of local people, restrained the defendant and his men and agents and others from causing such physical violence and dispossession of the plaintiff. But the defendant, at the time of leaving the suit property, threatened the plaintiff with dire consequences and told that he would come back again and take forcible possession of the suit property. With this background and the averments made in the injunction application, the plaintiff made a prayer for an order of temporary injunction restraining the defendant and /or his men and agents from selling, transferring, alienating, encumbering and/or from disturbing the peaceful possession and/or ousting the plaintiff from the suit property and/or from causing any physical violence upon the plaintiff in any manner whatsoever. 4. On the said application an ad interim order of injunction was granted by the learned 1st Civil Judge (Junior Division), Alipore, on 28.11.2014. By the said order, the learned trial Court held – “from the materials brought in record and from the averment made in the plaint supported by affidavit, the plaintiff’s possession over the suit property is prima facie made out. However, I am unable to accept that the plaintiff’s right to maintenance from the defendant would automatically create charge upon any of his properties. However, I am unable to accept that the plaintiff’s right to maintenance from the defendant would automatically create charge upon any of his properties. The defendant in my view have the liberty to choose where to house the plaintiff, the plaintiff as of right cannot claim residence in the suit property specifically, she only can claim residence that fits the status of the parties. Therefore, I am not inclined to deprive the defendant from dealing with his own property in a way he chooses. Nevertheless, since the plaintiff is in possession of the suit property I think it would be proper at this stage to protect her from dispossession without due process of law.” 5. In such background, the learned trial Court restrained the defendant from dispossessing the plaintiff from the suit property without due process of law till 22nd December, 2014. After the aforesaid order was passed on 28.11.2014, the petitioner filed an application under Section 151 of the Code of Civil Procedure on 13th June, 2015, praying for restoration of her possession on the allegation that she had been dispossessed from the suit premises. Some averments in the application under Section 151 of the Code of Civil Procedure are relevant for the purpose of disposal of this revisional application. She has stated – “That after getting the injunction order when the petitioner was in possession in the suit flat being flat no.6D on the 6th floor of Block – A of the building Complex, situated at 264, Netaji Subhas Chandra Bose Road, P.S. – Netaji Nagar, Kolkata – 700047, some person have come to his flat and threat her to vacate the said flat soon otherwise your petitioner have to fact dire consequences and on 01.12.2014 at about 12:45 a.m. few police man along some unknown person has forcibly come inside the flat by trespassing under the instruction of the defendant when the petitioner was alone and request the petitioner to handed over the flat to the builder or promoter.” “That your petitioner states that the police authority cannot act in the role of civil judge and under any circumstances cannot evict on possession holder as per their own sweet, even violating the courts order at the midnight without any valid reason to that effect your petitioner has filed a writ petition before the Hon’ble High Court at Calcutta, being W.P. No.33136 (W) of 2014, ...” 6. In the said application under Section 151 of the Code of Civil Procedure, the petitioner has prayed for restoration of possession of the suit property. 7. In the meantime, the defendant nos. 2 and 3, the subsequent purchasers, who purchased the flat after the agreement was surrendered by the defendant no.1 and from the sale deed it appears that the defendant no.1 was added as a confirming party. The sale deed also discloses that the defendant nos. 2 and 3 jointly purchased the property on 29th September, 2014 and possession letter was also given by the builder. The learned Court below, by the order impugned, rejected the petitioner’s prayer for restoration of possession. On going through the impugned order it appears that the plaintiff could not satisfy the Court that the petitioner was really in possession of the suit property on the day when the injunction was passed. The learned Court below held that the statements on record show that those are contradictory to each other at different stages in relation to her possession over the suit property. According to the Court below, in the injunction application she has claimed that they were residing in a temporary accommodation initially wherefrom the defendant no.1 suddenly disappeared on 24.02.2014 and thereafter he contacted with the plaintiff after getting possession over the suit property and took her to the suit property on 20.09.2014 where they resided jointly till 31.10.2014. Learned Court below has further held that from the petitioner’s own saying that she went to the suit property on 21.11.2014 but the private security guards prevented her from entering the suit property, when she forcefully tried to open the entrance door with the key that was lying in her custody the persons of the locality obstructed her and threatened her of assault. Learned Court below has taken into consideration of this statement that a suit for divorce is pending between the parties. A Misc. Case has been filed for maintenance where the plaintiff showed her address as 113, N.S.C Bose Road and not the suit property. Learned Court below held that another title suit being T.S. No.207 of 2014 appears to have been filed by the plaintiff against thedefendant no.1 as the owner of the flat at premises no.113, N.S.C. Bose Road, seeking protection against dispossession from such property. Learned Court below held that another title suit being T.S. No.207 of 2014 appears to have been filed by the plaintiff against thedefendant no.1 as the owner of the flat at premises no.113, N.S.C. Bose Road, seeking protection against dispossession from such property. From the record it appeared before the Court below that such suit was filed on 07.05.2014 and there is also no whisper of the suit property in the plaint of that suit. Learned Court below has also pointed out that she deposed as PW 1 in Misc. Case No.19 of 2014 on 25.02.2015 and she was examined on several dates between 13.03.2015 and 15.06.2015. There is no mention of the suit property at any portion of the affidavit-in-chief so filed, rather during her cross-examination on 08.06.2015, she deposed that she was residing in the flat mentioned in her affidavit which is flat no.113, N.S.C. Bose Road from March 2014 up to that day. The learned Court below has also taken note of different Police complaints made by the petitioner with the Police authorities and found various contradictions therein with regard to her authenticity of the statement of possession over the suit property on the day when the injunction order was passed. In such background of the matter, the learned Court below has disbelieved the petitioner’s case that she was in possession over the suit property on the day when the initial injunction order was passed on 28.11.2014. 8. Mr. Saptangsu Basu, appearing for the petitioner, submitted that since the Court made an observation that the plaintiff was found to be in possession on the day when the injunction order was passed and when it has been brought to the notice of the Court under Section 151 of the Code of Civil Procedure that she has been dispossessed from her possession from the suit property, it is the duty of the Court to restore her possession in the suit property. In support of such submission he has relied on a decision in the case of Meera Chauhan – Vs. – Harsh Bishnoi & Anr., reported in (2007) 12 SCC 201 . In the said decision the Hon’ble Supreme Court speaks of adducing evidence and relying on such judgment Mr. Basu submitted that the Court at least should have allowed the parties to lead evidence to prove that the petitioner has been dispossessed from her possession. – Harsh Bishnoi & Anr., reported in (2007) 12 SCC 201 . In the said decision the Hon’ble Supreme Court speaks of adducing evidence and relying on such judgment Mr. Basu submitted that the Court at least should have allowed the parties to lead evidence to prove that the petitioner has been dispossessed from her possession. Such contention cannot be raised here as the petitioner never attempted to prove the same by oral evidence. Secondly, the learned trial Court never made any definite finding that the wife was in possession prior to order of injunction. What the learned trial Court observed the wife’s possession in the suit premises was prima facie. 9. Mr. Basu Chowdhury, learned Advocate appearing for the defendant no.1, submitted that the husband/defendant no.1 was never the owner of the property. He only entered into an agreement for purchase and it is totally false that the petitioner was put in possession over the suit property because, according to the terms of the agreement, he had no occasion to get the possession over the suit premises. He submitted that the plaintiff filed the suit and obtained the order of injunction by misleading the Court with regard to possession as on that date when the application was moved. Therefore, she is not entitled to any order on her application under Section 151 of the Code of Civil Procedure. 10. Mr. Pathak, learned Advocate appearing for the added defendant nos. 2 and 3, submitted that his clients purchased the suit flat by a registered deed of conveyance dated 29th September, 2014 and, consequently, he also got possession of the suit property. Therefore, he submitted that the case made out by the petitioner that she entered into possession of the suit flat on 28th November, 2014, is not believable. 11. After considering the submissions made on behalf of the parties and on perusal of the materials disclosed before this Court and on going through the order impugned, this Court is not convinced that the learned Court below has gone wrong anywhere in not passing an order of restoration of possession in favour of the petitioner. 12. On an analysis of the series of events and the statements made by the petitioner in various proceedings initiated by her including those of the written complaints made before the Police authorities, it appears that she has not come before the Court with clean hands. 12. On an analysis of the series of events and the statements made by the petitioner in various proceedings initiated by her including those of the written complaints made before the Police authorities, it appears that she has not come before the Court with clean hands. A relief of injunction is an equitable relief and unless Court is fully satisfied that the petitioner has honestly represented before the Court about her agony with regard to the possession, Court should not come for her rescue. According to her own showing in the plaint of Title Suit No.491 of 2014 filed against Gautam Shroff that he is the sole and absolute owner of the suit property. In addition, she stated in the plaint that the plaintiff went to the premises on 20th November, 2014 and tried to enter into the suit flat but she was not allowed to enter by the security guards posted there, who, along with other men and agents, threatened the petitioner in many ways. On 21st November, 2014 she was again obstructed by some unknown persons from entering into the said flat and, as such, she filed an application under Section 144(2) of the Code of Criminal Procedure being M.P. Case No.5834 of 2014 before the learned 2nd Executive Magistrate, Alipore and obtained an order to the effect – “to see that no lawful and peaceful possession along with ingress and egress of petitioner to and from the scheduled property be not disturbed.” (page 128 of the petition). She has further stated that on 22nd November, 2014, the defendants along with their men and agents and their muscle men came to the suit property and tried to oust the plaintiff from the suit property most forcefully and illegally even by muscle men of the defendant by causing physical violence and tortures etc. 13. In the plaint it is totally absent as to when in between 21st November, 2014 and 22nd November, 2014, the plaintiff was able to enter in the suit premises and what happened thereafter. 14. From the annexed copy of the writ petition filed by the petitioner (page 98 of the petition) it appears that she made an allegation against the Police authorities. 14. From the annexed copy of the writ petition filed by the petitioner (page 98 of the petition) it appears that she made an allegation against the Police authorities. According to her, few Police personnel forcefully came to her premises on 1st November, 2014 at 12:45 a.m. and ousted her from the suit flat and possession thereof was handed over to the builder or promoter. No relief could be obtained in the said petition from the High Court. Therefore, from the series of incidents on record it appears that petitioner’s possession on the day when the ad interim injunction was moved, is doubtful, although, the learned Court held in its order dated 28.11.2014 that he was prima facie satisfied about the petitioner’s possession. Therefore, it cannot be argued that the learned Court has made a definite finding of possession of the petitioner at the suit premises on the day when the ad interim order of injunction was passed by the Court below. The petitioner has also not pointed about before this Court as to when she was dispossessed and as to how the dispossession has been made and who has dispossessed her. If such statements are not on record as to who has dispossessed the petitioner, the Court is not bound to pass any order of restoration. The injunction order which has been obtained by the petitioner, that was obtained only against the defendant no.1, her husband and there is no material before this Court to show that husband has dispossessed the petitioner, on the contrary, sufficient materials are available to show that husband was never in possession of the suit property and further that the property was sold to the defendant nos.2 and 3 before the initial order of injunction was passed by the Court below. 15. The purchasers have been added as defendant nos. 2 and 3. If the plaintiff is able to prove that she has got a right over the suit property, she might claim compensation in the long run. Whatever orders have been or would be passed in the interlocutory stage are subject to final outcome of the suit. 16. 15. The purchasers have been added as defendant nos. 2 and 3. If the plaintiff is able to prove that she has got a right over the suit property, she might claim compensation in the long run. Whatever orders have been or would be passed in the interlocutory stage are subject to final outcome of the suit. 16. In such circumstances, simply because an ad interim order of injunction was passed by the Court, the petitioner cannot demand that the Court has an obligation to restore possession in favour of the petitioner even in absence of proof of dispossession by defendants and in absence of any proof that she was in physical possession before the order of injunction passed on 28.11.2014. In such view of the matter, this Court is of the opinion that the learned Court below, by passing the impugned order, has not committed any material irregularity refusing to restore the petitioner’s possession particularly when such an order has been sought for against a registered owner whose possession over the suit property appears to be lawful. 17. The application is thus, dismissed. Order impugned is affirmed. 18. However, while disposing of application for temporary injunction, learned Trial Court will not be influenced by any of these findings which are only tentative findings. 19. Urgent Photostat certified copy of this judgment, if applied for, be delivered to the learned advocates for the respective parties upon compliance of all usual formalities.