Friday, 31 May 2019

Whether court should reject prayer for interim injunction if relief sought in injunction application and suit is same?

 In Dorab Cawasji Warden vs. Coomi Sorab Warden and others reported in MANU/SC/0161/1990 : (1990) 1 SCR 332, the Supreme Court held that the relief of interlocutory mandatory injunctions are granted generally to preserve or restore the status quo of the last known uncontested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable loss. Courts have evolved certain guidelines. Generally stated these guidelines are:

a) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.

b) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.

c) The balance of convenience is in favour of one seeking such relief.

20. There is no law that in case the relief sought through the suit and relief prayed for in a application for temporary mandatory injunction under Order 39 Rule 1 and 2 of the CPC are the same, in that eventuality the ad interim injunction cannot be granted.

21. However, it is true that the court would be very slow in granting such relief and would grant the same only when it comes to the conclusion that great injustice has been done to the petitioner who has been thrown away from a property in which he was in lawful occupation and a person who has got no right or title to the said property has occupied the same. In Indian Cable Company Limited (supra), this court held that if a court is called upon to grant any relief on an interlocutory application which when granted would mean granting substantially the relief claimed in the suit, the court will be very slow and circumspect in the matter of granting such prayer. It is indeed true that such a relief is granted only in exceptional cases, still at the same time no court should think that in law there is any absolute bar to the court granting such a relief. In deserving cases, the court should not hesitate to come in aid of a litigant and upheld the cause of justice by granting such a relief. 

IN THE HIGH COURT OF CALCUTTA

CO No. 359 of 2017

Decided On: 17.01.2019

Amita Sarbadhikary  Vs. Bandana Shome and Ors.

Hon'ble Judges/Coram:
Bibek Chaudhuri, J.


Citation: AIR 2019 Cal 123


1. An order of ad interim mandatory injunction directing the defendant/petitioner to restore possession of the suit premises to the plaintiffs/opposite parties passed by the learned Judge, 6th Bench of the City Civil Court, Calcutta in Title Suit No. 34925 of 2014 on 17th January, 2017 is the subject matter of challenge in the instant revision.

2. For adjudication of the dispute raised in the instant revision, following facts are required to be recorded:-

3. One Dr. Dulal Chandra Shome, since deceased was a tenant in respect of the demised premises situated on the first floor of premises No. 49, Lenin Sarani within P.S New Market where he used to run a business under the name and style of 'Shome's X-Ray Clinic'. On or about 13th June, 1985, the said Dr. Dulal Chandra Shome entered into an agreement with one Sudhir Kumar Nandi to continue with the aforesaid business of X-Ray Clinic in the said premises. After the death of Sudhir Kumar Nandi, his son Gobinda Nandi, plaintiff/opposite party No. 3 has been running the said business. On the death of Dr. Dulal Chandra Shome, tenancy in respect of the suit room was devolved upon plaintiff/opposite parties No. 1 and 2 as his legal heirs and successors. They also permitted plaintiff/opposite party No. 3 to run the said business. On being permitted as such, the said Gobinda Nandi obtained licenses from the statutory authorities required for running the business of X-Ray Clinic. It is alleged by the opposite parties that on 9th May, 2014 opposite party No. 3 was forcefully and illegally dispossessed from the suit room where he had been running the business of X-Ray Clinic for more than 50 years. He informed the matter to local P.S in writing on 13th May, 2014. It is also alleged that there are machinery in the suit room worth more than Rs. 10,00,000/-. As the opposite party No. 3 who was running X-Ray Clinic in the suit room with the permission of the lawful tenants, i.e. opposite parties No. 1 and 2 and he was dispossessed otherwise by due process of law, they filed a suit under Section 6 of the Specific Relief Act against defendant/petitioner for recovery of possession of the suit room.

4. In the said suit, the petitioners have filed an application under Order 39 Rule 1 and 2 of the CPC read with Section 151 of the CPC praying for an order of mandatory injunction directing the defendant/petitioner to restore possession of the suit room forthwith.

5. The defendant/opposite party filed a written objection against the aforesaid application under Order 39 Rule 1 and 2 of the CPC wherein she denied entire allegations made out against her by the plaintiffs/opposite parties. However, in the written objection the petitioner admitted that her husband B.R. Sarbadhikary, since deceased had inducted Dr. Dulal Chandra Shome as a tenant in respect of the suit premises where he started a business of running X-Ray Clinic. After the death of Dr. Shome, license for running the said business under Clinical Establishment Act, 1950 and other licenses were obtained by the widow and daughter of the said Dr. Shome. They used to run the business with the help of one or more office staff, one of whom was Sudhir Kumar Nandi, since deceased, father of opposite party No. 3. After the death of Sudhir Kumar Nandi, the opposite parties No. 1 and 2 being house wives and having no experience of running business of medical investigations, had to stop the business completely sometimes in 2010. It is specifically stated by the petitioner in the written objection to the application under Order 39 Rule 1 and 2 of the CPC that since 2010 the suit premises is under exclusive possession of the petitioner. The opposite party No. 3 being backed by opposite parties No. 1 and 2 tried to take over possession of the suit room sometime in the month of January 2012 which was successfully resisted by the petitioner. It is further stated by the petitioner that during first week of May, 2014, the opposite party No. 3 without having any right over the suit room tried to trespassed into the said premises. The petitioner apprehending that the opposite party No. 3 would illegally transfer the possession of the suit premises in favour of a 3rd party with ulterior motive to dispossess the opposite party from the suit premises, lodged a complaint against him in the local P.S on 5th May, 2014. An application under Section 144(2) of the Code of Civil Procedure was also initiated against the opposite party No. 3 at the instance of the petitioner. Under such circumstances, the petitioner prayed for rejection of the application under Order 39 Rule 1 and 2 of the CPC filed by the opposite parties.

6. The learned trial judge upon hearing both the parties and on careful consideration of materials placed before him passed an order of mandatory injunction against the petitioner directing him to restore possession of the suit property in favour of the opposite parties within 15 days from the date of the order.

7. Mr. Roy, learned Advocate for the petitioner submits before me that an order of mandatory injunction can be guaranteed only in those discerning few cases where the court wants to restore the status quo ante which existed on the date of the suit. In a suit for recovery of possession under Section 6 of the Specific Relief Act, the impugned order of mandatory injunction, if allowed to be sustained, would practically mean granting the main relief in the suit. It is urged by the learned Advocate for the petitioner that the opposite parties have alleged that they were dispossessed sometimes on 9th May, 2014. But from the written complaint made by the petitioner before the local P.S on 5th May, 2014, it would reveal that the opposite parties were not in possession of the suit room on the date of alleged dispossession. The opposite parties closed their business long time back in the year 2010. The opposite party No. 3, a man of questionable character, tried to take over possession of the suit room in the month of May, 2014. But he was successfully resisted by the petitioner. The learned trial judge, according to the learned counsel for the petitioner, has failed to consider the said factual aspect while disposing of the application for temporary mandatory injunction.

8. Learned Advocate for the petitioner next invites my attention to the trade license, license issued by the Pollution Control Board, license issued by the competent authority under Clinical Establishment Act in the name of opposite party No. 3 for running the business of X-Ray Clinic. All the aforesaid licenses were issued in 2007. The opposite parties have failed to produce any contemporaneous document to show that they were in possession of the suit room on 9th May, 2014, when they were allegedly dispossessed. It is urged that in the present case the opposite parties were out of possession and the petitioner, on the other hand, are in possession over the disputed property. Hence, it is contended by learned Advocate for the petitioner that the application for temporary mandatory injunction should have been dismissed instead allowed.

9. Mr. Shiba Prasad Mukherjee, learned Advocate for the opposite parties, on the other hand submits that admittedly Dr. Dulal Chandra Shome was a tenant in respect of the suit premises. It is also not disputed by the petitioner that after the death of the original tenant the opposite parties No. 1 and 2 have inherited the said tenancy. In order to substantiate his contention he draws my attention to the copies of the rent receipts issued by the petitioner in the name of Dipak Kumar Shome and Others accepting rent for the month of January 2012. It is pertinent to mention here that Dipak Kumar Shome, since deceased was the son of Dr. Dulal Chandra Shome, the original tenant and husband of plaintiff/opposite party No. 1. Thus, after the death of original tenant the petitioner being the landlady in respect of the suit room accepted the son and other heirs of Dr. Shome as tenants in respect of the suit premises and amicably accepted rent up to the month of January 2012. As the petitioner refused to accept rent from them since February 2012, the opposite parties have been depositing rent in the office of the Rent Control, Calcutta. Mr. Mukherjee next invites my attention to paragraph 16(f) of the written statement filed by the petitioner in the trial court where she has alleged that the opposite parties had left the suit room sometimes in 2010. On the contrary, the petitioner amicably accepted rent from the opposite parties up to the month of January 2012. The opposite parties have filed copies of rent control challans showing deposit of rent in respect of the suit room up to April 2014. Specific case of the opposite parties is that they were dispossessed from the suit premises forcefully and illegally on 9th May, 2014.

10. Under the facts and circumstances, it is urged by Mr. Mukherjee, learned counsel for the opposite parties that the opposite parties No. 1 and 2 are the tenants in respect of the suit room. Opposite party No. 3 Gobinda Nandi has been running the business of X-Ray Clinic on behalf of the opposite parties No. 1 and 2. He obtained the statutory licenses from the authorities to run the business. The opposite parties have not been evicted from the suit room by a decree of eviction passed by any court of competent jurisdiction. From the written objection filed by the petitioner before the learned court below, it is clear that the opposite parties were dispossessed without due process of law. Therefore, their possession was rightly restored by the learned court below by passing an order of mandatory injunction.

11. In support of his argument, Mr. Mukherjee, for the opposite parties refers to a judgment in Indian Cable Company Limited vs. Smt. Sumitra Chakraborty reported in MANU/WB/0063/1985 : AIR 1985 CAL 248 in paragraph 9 of the aforesaid judgment, the division bench of this Court was pleased to hold,

"In my opinion, the principle on the point as it emerges on review of the authorities thereon is that if a court is called upon to grant any relief on any interlocutory application which when granted would mean granting substantially the relief claimed in the suit, the court will be very slow and circumspect in the matter of granting any such prayer. It is indeed true that such a relief should be granted only in exceptional cases. Though exercise of such a discretion should be limited to rare and exceptional cases, still at the same time no court should think, as has been the view taken by the learned Subordinate Judge, that in law there is any absolute bar to the court granting such a relief. In deserving cases, the court should not hesitate to come in aid of a litigant and uphold the cause of justice by granting such a relief. I am, therefore, of the opinion that the learned Subordinate Judge went wrong in reading the decision in MANU/WB/0407/1936 : (1936) 40 Cal WN 1201 as an authority for a proposition that in law there is an absolute bar to the granting of an interlocutory relief as claimed in the present case and, therefore, not deciding on the merits whether the plaintiff had made out any exceptional case in support of his claim."
12. Next he refers to another decision of the division bench of this Court in the case of Nandan Pictures Ltd. vs. Art Pictures Ltd. and others reported in MANU/WB/0126/1956 : AIR 1956 CAL 428 wherein it was deserved by the division bench of the Court,

"Injunctions are a form of equitable relief and they have to be adjusted in aid of equity and justice to the facts of each particular case. No Court, therefore, ought to lay down absolute propositions when such are not necessary and forge fetters for itself. At the same time, I may point out what the accepted principles have been and what has been, according to the reported cases, the practice of the Courts. It would appear that if a mandatory injunction is granted at all on an interlocutory application, it is granted only to restore the status quo and not granted to establish a new state of things, differing from the state which existed at the date when the suit was instituted. The one case in which a mandatory injunction is issued on an interlocutory application is where, with notice of the institution of the plaintiff's suit and the prayer made in it for an injunction to restrain the doing of a certain act, the defendant does that act and thereby alters the factual basis upon which the plaintiff claimed his relief. An injunction issues in such a case in order that the defendant cannot take advantage of his own act and defeat the suit by saying that the old cause of action no longer survived and a new cause of action for a new type of suit had arisen. When such is found to be the position, the Court grants a mandatory injunction even on an interlocutory application, directing the defendant to undo what he has done with notice of the plaintiff's suit and the claim therein and thereby compels him to restore the position which existed at the date of the suit. As far as I have been able to find, even such an order has been made only when the application for an ad interim injunction pending the disposal of the suit is finally disposed of and not during the pendency of the application itself as made in the present case."
13. On the selfsame point learned counsel for the opposite parties refers to another judgment of the Supreme Court in the case of Lallu Yeshwant Singh (dead) by his legal representative vs. Rao Jagdish Singh and others reported in MANU/SC/0425/1967 : AIR 1968 Supreme Court 620.

14. Learned Counsel for the opposite parties next submits that person in possession of the property cannot be dispossessed without due process of law. Admittedly Dr. Dulal Chandra Shome was the tenant in respect of the suit premises under the petitioner. On his death his legal heirs and successors became the tenants in respect of the said premises on the first floor of 49 Lenin Sarani. The petitioner accepted rent from the son and other legal heirs of the original tenant up to January 2012 by issuing rent receipts. The opposite parties have not given up vacant possession of the suit room in favour of the petitioner. No decree for eviction was passed against the opposite parties. In the mean time the opposite parties were dispossessed from the suit room illegally and forcibly by the petitioner. It would, therefore, be clear that without any decree or order of eviction, the opposite parties have been unlawfully dispossessed from the demised premises without any due process of law. Under such circumstances, the court cannot blink at petitioner's unlawful conduct to dispossess the opposite parties from the demised premises. The learned trial judge, considering entire facts and circumstances of the case, correctly passed an order of mandatory injunction. In support of his submission he relies upon the Supreme Court judgment in the case of Samir Sobhan Sanyal vs. Tracks Trade Pvt. Ltd. and others reported in MANU/SC/0525/1996 : 1996 4 SCC 144.

15. Having heard the submission made by learned Advocates for the contesting parties and on perusal of the impugned order as well as the materials on record, it is ascertained that the opposite parties as plaintiffs filed Title Suit No. 34925 of 2014 in the court of the learned Judge, 6th Bench, City Civil Court, Calcutta under Section 6 of the Specific Relief Act which provides a special and speedy remedy to place back in possession a person who had been dispossessed from the immovable property of which he had been in possession, otherwise without due process of law. Therefore, possession of the opposite parties over the suit premises on the date of dispossession is the condition precedent to invoke jurisdiction of Section 6. Investigation into the title favouring such possession is irrelevant in a suit under Section 6 of the Specific Relief.

16. The petitioner in her written objection against the application for mandatory injunction filed in the learned trial court did not deny and dispute the right of tenancy of the opposite parties No. 1 and 2 being heirs of the original tenant Dr. Dulal Chandra Shome. It is the specific case of opposite parties that during the life time of Dr. Dulal Chandra Shome, he entrusted one Sudhir Kumar Nandi to run his X-Ray Clinic. Opposite party No. 3 is the son of the said Sudhir Kumar Nandi, since deceased. After his death the opposite party No. 3 has been running the business of medical diagnostic centre in the suit premises with the permission and approval of the tenant.

17. The contention of the petitioner, on the other hand is that after the death of Dipak Kumar Shome, son of the original tenant, namely Dr. Dulal Chandra Shome, other legal heirs of the said original tenant abundant the suit room sometimes in 2010 and since then the suit room is in possession of the petitioner. Prima facie the contention of the petitioner in support of her possession over the suit room since 2010 cannot stand in view of the fact that she herself issued rent receipt in favour of Dipak Kumar Shome and others up to the month of January 2012. Thereafter, the tenants are disputing rent in the office of the Rent Control after being refused by the petitioner to accept rent of the demised premises.

18. The question that false for adjudication is as to whether the learned trial judge was justified in passed the order of mandatory injunction in the aforesaid suit.

19. In Dorab Cawasji Warden vs. Coomi Sorab Warden and others reported in MANU/SC/0161/1990 : (1990) 1 SCR 332, the Supreme Court held that the relief of interlocutory mandatory injunctions are granted generally to preserve or restore the status quo of the last known contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable loss. Courts have evolved certain guidelines. Generally stated these guidelines are:

a) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.

b) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.

c) The balance of convenience is in favour of one seeking such relief.

20. There is no law that in case the relief sought through the suit and relief prayed for in a application for temporary mandatory injunction under Order 39 Rule 1 and 2 of the CPC are the same, in that eventuality the ad interim injunction cannot be granted.

21. However, it is true that the court would be very slow in granting such relief and would grant the same only when it comes to the conclusion that great injustice has been done to the petitioner who has been thrown away from a property in which he was in lawful occupation and a person who has got no right or title to the said property has occupied the same. In Indian Cable Company Limited (supra), this court held that if a court is called upon to grant any relief on an interlocutory application which when granted would mean granting substantially the relief claimed in the suit, the court will be very slow and circumspect in the matter of granting such prayer. It is indeed true that such a relief is granted only in exceptional cases, still at the same time no court should think that in law there is any absolute bar to the court granting such a relief. In deserving cases, the court should not hesitate to come in aid of a litigant and upheld the cause of justice by granting such a relief. The same view has been reiterated by the Delhi High Court in Shri Hari Mohan Sharma and others vs. C.S.R Poultry Research and Breading reported in MANU/DE/0246/1993 : AIR 1993 Del 293.

22. Bearing the essential principles of granting temporary mandatory injunction in a suit for recovery of possession under Section 6 of the Specific Relief Act, let me now consider the case in hand.

23. I have already recorded that the petitioner in her written statement as well as written objection admitted that one Dr. Dulal Chandra Shome was the original tenant in respect of the demised premises. It is also admitted that he used to run an X-Ray Clinic in the said premises under the name and style of 'Shome's X-Ray Clinic'. It is further admitted that one Sudhir Kumar Nandi father of the opposite party No. 3 used to work in the said X-Ray Clinic and helped Dr. Shome to run the business. Admittedly Gobinda Nandi, opposite party No. 3 is the son of the said Sudhir Kumar Nandi. The trade license, license under Clinical Establishment Act, license issued by Pollution Control Board and other required permission have been granted by the statutory authorities to run the said business in the demised premises in the name of Gobinda Nandi. Therefore, the claim of the petitioner that she has been possessing the suit premises since 2010 is found to be false and false to the knowledge of the petitioner. Needless to say the opposite parties No. 1 and 2 were in lawful possession of the suit room as tenants and permitted Gobinda Nandi, opposite party No. 3 to run the business of X-Ray Clinic and medical diagnostic centre till the opposite party No. 3 was dispossessed on 9th May, 2014. Such dispossession was illegal and without due process of law.

24. The learned trial court upon due consideration of the materials placed before him passed the impugned order of mandatory injunction to "restore the status quo of the last known contested status which preceded the pending controversy until the final hearing."

25. The said order was passed well within the jurisdiction of the learned trial judge. Therefore, I am not in a position to hold that the learned trial judge has committed gross illegality or irregularity in passing the impugned order.

26. In view of the above discussion, the instant revision is devoid of any merit and accordingly the same is rejected on contest however, without any cost.

Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.


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