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2020 DIGILAW 258 (CAL)

Narendra Sethia v. Bimal Kumar Bandopadhyay

2020-02-21

HIRANMAY BHATTACHARYY, SAMBUDDHA CHAKRABARTI

body2020
JUDGMENT : Hiranmay Bhattacharyya, J. 1. This is an application for stay of operation of the order dated December 23, 2019 and for temporary and mandatory injunction. 2. He instant application has been filed in connection with the appeal being FMAT 40 of 2020. The plaintiffs in a suit for permanent injunction have preferred the instant appeal challenging a judgment and order dated December 23, 2019 passed by the learned judge 7th Bench City Civil Court at Calcutta in Title Suit no. 1423 of 2016 whereby the application for injunction filed by the appellants herein was rejected by the Learned Trial Judge. 3. After admission of the appeal, Mr. Sengupta, the Learned Senior Advocate for the appellants/petitioners moved the instant application and pressed for an interim order in terms of the prayers contained in the said application. 4. The case as made out by the appellants/petitioners in the plaint of the instant suit in a nutshell is as follows. 5. The appellant no. 1 was inducted as a tenant in respect of suit premises by the respondent nos. 1 and 2 and one Nirmal Kumar Bandyopadhyay. Upon the death of the said Nirmal Kumar Bandyopadhyay, the suit premises devolved upon the respondent nos. 1 and 2. The appellant no. 1 has been carrying on business of a diagnostic centre in the name and style of "M/S Western Diagnostic Research Centre" which was subsequently renamed as M/S Western Diagnostic Centre. The respondent nos. 1and 2 accepted the appellant no. 2's right to carry on business from the suit premises and to use the open areas for car parking and never objected to the same. The respondent no. 7 purchased 5/16th undivided share in the entire suit premises. The appellant has been depositing rent before the rent controller on monthly basis on and from August, 2012 and has been in peaceful occupation of the suit premises for more than 30 years. The respondent nos. 4, 5 and 6, claiming to have acquired the balance shares in the entire suit property, along with the respondent no. 3 and 8 attempted to install a gate inside the property in the month of October, 2016 in order to obstruct the free ingress and egress of the vehicles in the parking area. Since the respondent no. 4, 5 and 6, claiming to have acquired the balance shares in the entire suit property, along with the respondent no. 3 and 8 attempted to install a gate inside the property in the month of October, 2016 in order to obstruct the free ingress and egress of the vehicles in the parking area. Since the respondent no. 1 and 2 in collusion with the other respondents were trying to oust the appellant from the suit premises, the appellants finding no other alternative filed the instant suit. 6. In connection with the said suit the appellants filed an application under Order 39 Rule 1 and 2 of the Code of Civil Procedure praying for an order of temporary injunction. An ad interim order of injunction was also prayed for in the said application for injunction. 7. The learned Trial Judge by an order being no. 2 dated 2nd November, 2016 restrained the respondents by an order of injunction from disturbing and interfering with the appellants' right in the suit premises as specifically stated in "Annexure A" to the petition and from installing any gate or any other form of obstruction to the free ingress and egress of the vehicles into the front and rear open areas demarcated by tin sheets as described in "Annexure A" for a period of 3 weeks. 8. The respondent nos. 4, 5, 6 and 8 preferred an appeal being FMAT No. 1231 of 2016 before a Division Bench of this court challenging the order dated November 2, 2016. 9. The Hon'ble Division Bench by a judgment and order dated November 18, 2016 disposed of the said appeal and the applications filed in connection thereto by modifying the impugned order and restraining the respondents from fixing any iron gate on any portion of the passage that is the drive way starting from the main gate up to the entrance in the plaintiff's tenancy and/or from creating any obstruction in the use and enjoyment of their tenancy in the ground floor of western portion of premises no. 10B, Shakespeare Sarani, Kolkata- 71 till the disposal of the plaintiff's application for temporary injunction. 10. The respondent nos. 4, 5, 6 and 8 contested the application for temporary injunction by filling a joint written objection denying the allegations contained in the injunction application. 10B, Shakespeare Sarani, Kolkata- 71 till the disposal of the plaintiff's application for temporary injunction. 10. The respondent nos. 4, 5, 6 and 8 contested the application for temporary injunction by filling a joint written objection denying the allegations contained in the injunction application. In the said written objection the respondents denied the appellant's claim of tenancy right over the two open areas in the suit property. It was contended that the appellants with a malafide motive are attempting to encroach upon, trespass into and take possession of the two open areas as described in the schedule of plaint. It was contended by the respondents that the minutes of the meeting dated 02.12.2012 is the minutes of the meeting held between the members of the larger Sethia family to resolve their family dispute and the said meeting was not held between the owners/land lords and their tenants/occupiers to resolve any tenancy issue. The respondents thus prayed for dismissal of the injunction application. 11. The respondent no. 3 contested the injunction application by filing a separate written objection. 12. By the order impugned the learned Trial Judge dismissed the application for temporary injunction filed by the appellants under Order 39 Rule 1 and 2 on contest. 13. Being aggrieved, the plaintiffs have preferred the instant appeal. 14. Mr. Sengupta, the learned Senior Advocate for the appellants submits that the learned Trial Judge while dismissing the application for temporary injunction filed by the appellants did not return any independent findings on the documents produced by the appellants but merely quoted the reasons assigned by this court in an appeal against an ad interim order of injunction. He submitted that though this court in the judgment and order dated November 18, 2016 specifically observed that the observations made in the said order are all prima facie and tentative and was made only for the purpose of disposal of that appeal arising out of the ad interim order of injunction, the learned Trial Judge while deciding the application for temporary injunction erred in law by being swayed with such observations of the High Court. He further submitted that the Learned Trial Judge failed to appreciate that the tests to be applied at the time of passing an ad interim order of injunction is different from that of temporary injunction. He further submitted that the Learned Trial Judge failed to appreciate that the tests to be applied at the time of passing an ad interim order of injunction is different from that of temporary injunction. He submitted that the documents filed by the appellants herein were not properly appreciated by the learned Trial Judge. Mr. Sengupta submitted that the right to park cars in the open areas of the suit premises is an integral part of the appellants' tenancy right. In order to substantiate such claim of the appellants, Mr. Sengupta relied upon the following documents namely: (a) rent receipts issued by Mr. Nirmal Banerjee for the months of April 2012 to June 2012, December 2011 to March 2012 being Annexure D to the injunction application (b) one letter issued by the receiver being Annexure C to the injunction application (c) rent control challans being Annexure E to the injunction application (d) the minutes of the meeting dated 02.12.2012 which was marked as Annexure G to the injunction application (e) the report of the receiver (f) the copies of the conveyance deeds and the sketch map attached thereto and (g) the police report in connection with the proceeding under Section 144 of the Criminal Procedure Code. 15. Mr. Kar, the learned Advocate for the respondent/opposite party nos. 4, 5, 6 and 8 submits that from the minutes of the meeting dated December 2, 2012 it is evident that the said meeting was to resolve the family disputes of the Sethia family. The claim of alleged tenancy right of the appellants was not the subject matter of discussion in that meeting. He further submitted that it will appear from the said minutes that no final decision was also reached and it was still at the proposal stage. He further submitted that the plaintiffs have prayed for leave under Order 2 Rule 2 of the Code of Civil Procedure for instituting an appropriate proceedings for enforcement of the family settlement recorded in the minutes of the meeting dated December 2, 2012 which goes to show that no final decision was taken in the said meeting. He next referred to the letter dated November 8, 2016 issued by Rajendra Sethia to Mr. Malay Krishna De, by which Mr. Rajendra Sethia had sought for a confirmation from the receiver as to the authenticity of the letter being Annexure C of the injunction application. He next referred to the letter dated November 8, 2016 issued by Rajendra Sethia to Mr. Malay Krishna De, by which Mr. Rajendra Sethia had sought for a confirmation from the receiver as to the authenticity of the letter being Annexure C of the injunction application. He also referred to the letter dated 11.11. 2016 issued by the said Malay Krishna De in support of his submission that the said document was not issued by the said receiver. Mr. Kar relied upon the receiver's report in support of his submission that the erstwhile owner namely Nirmal Kumar Banerjee carried on a restaurant business in the name and style of "Lemons" and the cars and two wheelers parked in the property belonged to his customers. Mr. Kar referred to the letter dated September 20, 2019 written by one Dr. R. D. Dubey and addressed to Narendra Sethia, another letter dated September 23, 2019 written by Dr. L. L. Mall and addressed to Dr. Narendra Sethia and a letter dated September 23, 2013 written by Dr. Mahesh Maskara to Dr. Narendra Sethia and submitted that those have been procured by the appellants from the doctors after passing of the order by this court in FMAT No. 1231 of 2016 for the purpose of hearing of the injunction application and the suit. Mr. Kar further submitted that those documents even do not prove the appellants' possession in respect of the open space. 16. We have heard the learned advocates for the respective parties only for the purpose of considering the interim relief. The dispute is whether the appellants have the right to park their cars in the open areas of the suit premises. The open areas have been described in the schedule of the plaint as follows: "[OPEN AREAS] ALL THAT all open spaces at premises No. 10B, Shakespeare Sarani, Kolkata-700 071, butted and bounded in the manner as follows :- On the North Shakespeare Sarani Road; On the South 16/1 & 16/2, Lord Sinha Road; On the West Arabinda Bhawan, 8, Shakespeare Sarani; and On the East 10A, Shakespeare Sarani. 17. The sketch plan which is part of the plaint has also been annexed at page 61 of the injunction application being CAN 300 of 2020. From the sketch map it appears that the main entrance is on Shakespeare Sarani which is on the northern side. 17. The sketch plan which is part of the plaint has also been annexed at page 61 of the injunction application being CAN 300 of 2020. From the sketch map it appears that the main entrance is on Shakespeare Sarani which is on the northern side. It further appears from the said sketch map that the vehicles can enter the premises from the entrance through the wide passage starting from the main entrance leading to the building. It further appears that the said wide passage runs between the tin sheets and the western boundary line of the premises. The wide passage starting from the main entrance to the building is for ingress and egress of the vehicles up to the building. 18. The appellants herein have neither pleaded nor produced any document of creation of tenancy by the inducting landlords. Some rent receipts, rent control challan and the letter of a receiver have been produced in support of their claim of tenancy right. The rent receipts issued by Nirmal Kumar Banerjee being Annexure D to the injunction application do not mention the extent of tenancy of the appellants. It is not in dispute that apart from the open areas the appellants are also claiming tenancy right in respect of the ground floor and mezzanine floor of the building at premises no. 10B, Shakespeare Sarani, Kolkata- 700 071. 19. The letter of the receiver being Annexure C to the injunction application was also relied upon by the learned advocate for the appellants in order to substantiate the appellants' claim with regard to their tenancy right in respect of the open space and circulating area for parking of vehicles at 10B, Shakespeare Sarani in addition to the ground floor (western side) and mezzanine floor. The said document does not contain the signature of the receiver. Furthermore, it is evident from the letter dated 08.11.2016 issued by Rajendra Sethia to the receiver (appearing at page 198 of the application) and the receiver's reply dated 11.11.2016 (appearing at page 199 of the application) that the alleged letter of the receiver being Annexure C to the injunction application was not signed by him. The said letter of the Receiver being Annexure C to the injunction application do not instill confidence of the court. 20. The said letter of the Receiver being Annexure C to the injunction application do not instill confidence of the court. 20. Upon perusal of the said rent control challans being Annexure "E" to the injunction application it appears that the open areas are also not included within the extent of tenancy in such challans. The said document was issued on the information supplied by the person depositing the rent i.e. the appellants in the instant case. Thus, from the said document also it does not appear that the appellants have prima facie established their claim of tenancy in respect of the open areas. 21. Mr. Sengupta, the learned Senior Advocate for the appellants laid much stress on the minutes of the meeting dated December 2, 2012 and the police report filed in connection with the proceeding under Section 144 of the Criminal Procedure and the report of the receiver in support of his claim that the appellants were in possession of the open areas for long 30 years and status quo with regard to possession of the appellant in the open areas should be maintained till the disposal of the suit. 22. By relying upon the minutes of the meeting dated December 2, 2012 Mr. Sengupta argued that the status quo existing on December 1, 2012 is to be maintained. By referring to the police report dated October 12, 2012 Mr. Sengupta submitted that since the police report indicates that the cars of the doctors and patients were parked inside the compound of the premises the same status existed on December 2, 2012 which is to be maintained. 23. The status quo indicated in the minutes of the meeting dated December 2, 2012 refers to the demarcation of areas by tin sheets which has nothing to do with the possession of the appellants in respect thereof. Upon a plain reading of the said minutes of the meeting dated December 2, 2012 it is evident that the said meeting was held to resolve the disputes between the members of the Sethia family i.e. the owners of the premises. The purpose of the said meeting was not to resolve any dispute about the extent of tenancy between the landlord and the tenant more particularly between the appellants claiming to be the tenants on one hand and the respondents/landlords on the other. The purpose of the said meeting was not to resolve any dispute about the extent of tenancy between the landlord and the tenant more particularly between the appellants claiming to be the tenants on one hand and the respondents/landlords on the other. It is evident from the said document that two proposals were put forth and no final decision was taken and further proposals were also invited. Furthermore, the police report submitted in a proceeding under section 144 of Criminal Procedure Code cannot be said to prove the possession of a party. The said police report is also not a document to prove the tenancy right of the appellant. 24. Mr. Sengupta further referred to the deeds of conveyance by virtue of which the respondents are claiming ownership of the property and the sketch plans annexed thereto and submitted that the open areas were meant for car parking space and also that the respondents have accepted the claim of tenancy right of the appellants in the open areas as would appear from the recitals of the said deeds. He also submitted that the entire premises was occupied by the tenants at the time when the tenants acquired the suit premises. Thus, the respondents do not have physical possession of the open areas of the premises as the entire premises has been let out to tenants. 25. Mr. Sengupta also submitted that the tenants of other portions may raise an objection against the appellants' right to park cars in the open areas but the respondents cannot raise any objection to the parking of cars by the plaintiffs in the open areas as they do not have actual physical possession of the open areas. 26. The aforesaid submissions of Mr. Sengupta cannot be accepted for the following reasons. The appellant's right to park cars in the open areas cannot be said to have been established merely on the ground that there is no material on record to show that the other tenants or occupiers have raised any objection in this regard. From the sketch plan annexed to the deeds of conveyance it also does not appear that the entire open space on both sides of the building were meant for car parking. It appears that only the open space on the northern side was meant for car parking. From the sketch plan annexed to the deeds of conveyance it also does not appear that the entire open space on both sides of the building were meant for car parking. It appears that only the open space on the northern side was meant for car parking. In the recitals of the deed of conveyance it has been stated that the vendors of the respondents have let out the premises to various tenants who are occupying the same paying low rent but it does not necessarily imply that the respondents being the present owners of the property or their vendors have acknowledged the alleged tenancy right of the appellants in respect of the open areas in the deeds of conveyance. 27. The receiver's report filed in the partition suit also do not establish the claim of the tenancy right of the appellants in respect of the open areas. 28. The letter written by the Doctors to the appellants are correspondences between the appellants and strangers to the suit. As such those documents do not come to the aid of the petitioners for proving their tenancy right and possession in respect of open areas. 29. Mere indication either in the police report or in the receiver's report as to parking of some cars of doctors and patients of the appellants do not establish that the appellants are in possession of the open areas in their capacity as a tenant thereof. The appellants have claimed the entire open areas to be within their tenancy but have failed to produce any document in support of such claim. Thus, the appellants have failed to show prima facie that they have a legal right to possess the open areas and are in possession thereof. 30. The appellants have failed to make out a strong prima facie case to go for trial. The wide passage leading from the main road to the building is a portion of the open space which the appellants are claiming to be under their tenancy. Apart from the appellants there are other occupiers of the building. An order of injunction prayed for by the appellants will render the building inaccessible to the respondents as well as other occupants. The balance of convenience and inconvenience is wholly against the appellants in the instant case. 31. Apart from the appellants there are other occupiers of the building. An order of injunction prayed for by the appellants will render the building inaccessible to the respondents as well as other occupants. The balance of convenience and inconvenience is wholly against the appellants in the instant case. 31. The appellants cannot also claim to suffer irreparable loss and injury merely because the doctors and patients cannot park their cars in the open space. It is also not the case of the appellants that their ingress and egress from the main road to the building is being obstructed in any manner whatsoever. It is well settled that in the event a party applying for injunction fails to satisfy the tests for grant of injunction in his favour, no injunction can be granted in favour of such party. 32. We have also perused the judgment and order impugned in the instant appeal. We are of the prima facie view that the Learned Trial Judge after considering the materials on record was justified in rejecting the application for injunction filed by the appellants. 33. For the reasons as aforesaid no order of injunction should be passed in favour of the appellants during the pendency of the instant appeal. The prayer for injunction is thus refused. We however, make it clear that the aforesaid findings are all prima facie and tentative observations of this court only for the purpose of deciding the prayer for injunction. 34. Let us now consider the appellants' prayer for stay of operation of the order of injunction passed by the Learned Trial Judge on the application for injunction filed by the defendants/respondents. 35. The respondent nos. 4 to 6 and 8 are contesting the suit by filing a written statement with a counter claim. They also filed an application under Order 39 Rule 1 and 2 read with Section 151 of the Code of Civil Procedure in connection with the said counter claim. In the application for injunction the said respondents prayed for temporary injunction restraining the plaintiffs and each one of them, their main agents, staffs, employees and associates from occupying or using any part of the portion of the open areas on the two sides of the building at premises no. 10B, Shakespeare Sarani and from using or occupying either sides of the open areas for the purpose of parking cars or for any other purposes. 10B, Shakespeare Sarani and from using or occupying either sides of the open areas for the purpose of parking cars or for any other purposes. 36. The Learned Trial Judge by the order dated December 23, 2019 allowed the application for temporary injunction restraining the plaintiffs from using the open areas situated on either sides of the building as fully described in the schedule of counter claim for the purpose of parking cars and also restrained from encroaching and making any obstruction on the common passage leading to the entrance gate of the building till disposal of the counter claim. The schedule of property mentioned in the injunction application filed by the said respondents is as follows: "SCHEDULE All that the open spaces admeasuring an area of about 11000 square feet on north and south sides of the building standing at Premises No. 10B, Shakespeare Sarani, Kolkata- 700 071, as shown and/or delineated with red ink in the sketch map/plan annexed hereto along with all that 60 feet long and 8 feet wide common passage inside the said premises running from the main gate abutting Shakespeare Sarani upto the end of the building standing at Premises No. 10B, Shakespeare Sarani, Kolkata- 700 071." 37. Although no separate application for stay has been filed in connection with FMAT 41 of 2020 but the appellants have prayed for stay of operation of the order dated December 23, 2019 in the instant application. The learned advocates of the respective parties also advanced their argument as to whether the order of injunction passed by the Learned Trial Judge on an application for injunction filed by the respondent nos. 4, 5, 6 and 8 is required to be stayed. 38. Mr. Sengupta, the learned senior advocate for the appellants has submitted that when the respondent nos. 4, 5, 6 and 8 is required to be stayed. 38. Mr. Sengupta, the learned senior advocate for the appellants has submitted that when the respondent nos. 4,5,6 and 8 have failed to make out a prima facie case to go for trial and also could not satisfy that the balance of convenience and in-convenience lies in their favour and also that the said respondents would suffer irreparable loss and injury unless an order of injunction is passed in their favour, the Learned Trial Judge erred in law by passing an order of temporary injunction in favour of the said respondents thereby restraining the appellants from using the open areas situated on the either side of the building and from encroaching and making obstruction on the common passage leading to the entrance gate of the building. 39. Mr. Kar, the learned advocate for the respondent nos. 4,5,6 and 8 submits that the respondents are the owners of the premises being 10B, Shakespeare Sarani, Kolkata- 700 0071. The respondents have filed the deeds of conveyance by virtue of which they have acquired title respect of the property in question. The appellants herein are claiming tenancy rights in respect of the open areas which they have failed to prove even prima facie. He submitted that the Learned Trial Judge was perfectly justified in passing an order of temporary injunction on the application filed by the respondents. 40. Mr. Sengupta relied on the judgments in the cases of State of Assam vs. Barak Upatyaka Karmachari Snastha, reported in (2009) 5 SCC 694 and Hyderabad Metropolitan Water Supply & Sewerage Board and Others vs. P. Satyanarayana Rao and Others, reported in (2009) 12 SCC 263 respectively in support of his contention that in an appropriate case an order of injunction may be stayed. Since we have entertained the application for stay, the judgments relied on by Mr. Sengupta need not be separately dealt with. 41. We have heard the learned advocates of the respective parties and have considered the materials on record. The deeds of conveyance which are on record goes to show that the respondents are the owners of the said property and are in possession of the same. Sengupta need not be separately dealt with. 41. We have heard the learned advocates of the respective parties and have considered the materials on record. The deeds of conveyance which are on record goes to show that the respondents are the owners of the said property and are in possession of the same. The appellants have failed to produce any document to enable this court to arrive at a prima facie finding that they have any manner of right in respect of open areas of the said building. 42. After perusing the judgment and order whereby the application for injunction filed by the respondents was allowed, we are of the prima facie view that the Learned Trial Judge was justified in allowing the said application for injunction. We, however, make it clear that the observations made hereinabove are all prima facie and tentative ones for the purpose of deciding the prayer for stay. We do not find any reason to pass an order of stay of operation of the order of injunction passed by the Learned Trial Judge on the respondents' application under Order 39 Rule 1 and 2 of the Code of Civil Procedure. The prayer for stay made by the appellants is thus refused. 43. The application being CAN 300 of 2020 is thus dismissed. Sambuddha Chakrabarti, J. - I agree.