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2018 DIGILAW 740 (CAL)

Sultana Begum v. Jai Ram Prasad

2018-10-04

SANJIB BANERJEE

body2018
JUDGMENT : 1. The petition is directed against a virtually unreasoned order of March 15, 2018 passed on an application under Section 151 of the Code filed in connection with a petition under Order IX Rule 13 of the Code for recalling an ex parte decree. 2. The decree was passed on June 30, 2012. In execution proceedings levied by the decree-holder, possession was obtained of the suit premises in September 2012. The petition for recalling the ex parte decree was filed sometime thereafter. Whether because of the paucity of the time available to the court or the lack of diligence on the part of the opposite party herein, the petition for setting aside the ex parte decree has not progressed for a period of six years. 3. The petitioners herein, the decree-holders, have applied for the sanction of a building plan and it is proposed that the old construction would be razed and a new building would come up. The subject-matter of the suit is a small shop-room measuring about 140 sq ft and yielding rent of Rs.230/- per month. Upon the opposite party getting a scent of the proposed building plan, an application was filed under Section 151 of the Code on which, for the mere asking, an order of stay of the operation of the decree has been passed. This, despite the decree having been virtually satisfied upon possession being obtained by the petitioning decree-holders in September, 2012. 4. Such unreasoned orders as the order impugned in the present case do great disservice to the system and to the parties. It does not appear that it occurred to the relevant judge as to what prejudice the order would cause the petitioners who have applied for the sanction of a building plan and may also get it; but may not be able to act in terms of such sanctioned plan till such time that the order of stay is vacated. It also does not appear to have occurred to the concerned judge that the opposite party herein may have adopted the measure to blackmail the petitioners herein and coerce the petitioners into conceding something more than the opposite party may be entitled to. It also did not occur to the trial court that at times, a conditional order of injunction is the best remedy or a deposit ought to be called for to balance the equities. 5. It also did not occur to the trial court that at times, a conditional order of injunction is the best remedy or a deposit ought to be called for to balance the equities. 5. Indeed, it is rampant in the district judiciary for mindless and unreasoned orders of stay or status quo to be passed on the completely unacceptable apprehension unless that such an order is passed, the suit would be rendered meaningless. Judges must be sensitive that if an unworthy suit is brought, it is bound to fail and there is no reason for the judge to supply oxygen to an unworthy cause by passing an undeserving order of status quo or stay as is regularly done. 6. This matter may be taken as a test case. If the injunction or an order staying the further operation of the decree as sought by the opposite party were to be refused, at the highest, the existing building would have been demolished and the 140 sq ft shop-room may no longer have been available. However, if the opposite party succeeds in having the decree set aside, the court would have ample powers to put the opposite party, if not in the identical place as he was before, in a comparable position, whether by an award of damages or by directing some space to be made for the opposite party in the new building proposed to be constructed at the plot. 7. The mindless order of stay has not only impeded the petitioners herein, it has stopped development work, possibly because there is a kind of thought-fixation in judges dealing with such civil matters. It matters little that the suit premises would be destroyed if the order of injunction or stay were not to be granted. The party who is prejudiced by the action can be appropriately compensated, even by allotment of a better space. 8. For the reasons indicated above and since the order impugned reflects a retrograde mindset, the same is set aside. The opposite party will have to wait for the petition for setting aside the ex parte decree to be taken up, whereupon, if the opposite party succeeds, an appropriate order can be made by the court even if the suit premises may no longer be in existence at the relevant point of time. 9. CO 1425 of 2018 is allowed as above. 10. 9. CO 1425 of 2018 is allowed as above. 10. There will be no order as to costs. 11. The Civil Judge (Junior Division), 2nd Court at Sealdah is, however, requested to ensure that the opposite party’s petition under Order IX Rule 13 of the Code is disposed of within six months of the receipt of a copy of this order and without affording any adjournment to either set of parties. 12. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.