Dilip Kumar Neotia vs Tarun Kumar Patra & Others

Soumen Sen, J.—This revisional application is directed against an order of affirmation passed by the Appellate Court in connection with an appeal preferred by the petitioner challenging an order passed by the Trial Court in connection with an application under Order 39, Rule 1 & 2 read with Section 151 of the Code of Civil Procedure, by which the parties were directed to maintain status quo with regard to the nature, possession and character and from making any construction in respect of C schedule property.

Although this is an order of affirmation and I am not unmindful of the fact that the Court would exercise power sparingly under Article 227 of the Constitution of India in matters where the discretion has been exercised by the Appellate Court.

In the instant case having regard to the gamut of the controversy and the misdirection of both the Courts in dealing with the issue I am inclined to interfere with the impugned order for the reasons recorded herein below.

The plaintiffs 23 in number filed a suit against the defendant alleging that the defendant is trying to change the nature and character of the C schedule property consisting of ground and first floor by forcibly making door on the wall in the ground floor common space separating the residential area and the commercial area in the Block A mentioned in the C schedule property.

The plaintiffs alleged that there was peaceful coexistence of the parties till the end of 2013, when they have noticed that the ground floor of Block A has been taken over by Reliance Company for commercial purpose. The defendant tried to change the nature and character of the C schedule property by encroaching upon common space area and making a separate entrance in the ground floor common space for facilitating the entrance of the said Company. It is further alleged that for the purpose of egress and ingress of the ground and first floor commercial place the defendant illegally and forcibly tried to curve out a door by breaking the wall separating the commercial place and the residential place in order to facilitate the entrance of Reliance Company.

In the written objection the defendant amongst others have reiterated that there is no other entrance door and staircase for access to the commercial unit on the first floor. The municipal authority has sanctioned the building plan for construction of staircase leading to the first floor of the commercial unit and to the said staircases leading to first floor of the commercial unit. In order to have access to the said staircase one entrance door was erected on the left hand side of the landing/common passage and through the said entrance gate access is made to the said staircase leading to the first floor of the commercial unit and as such the allegations of the defendant that the defendant is trying to install door in the ground floor and the first floor common space of the residential flat is misleading and incorrect.

The defendant has also raised an issue of maintainability of the suit in view of the failure to obtain leave under Order I Rule 8 of the Code of Civil Procedure.

Both the Trial Court and the Appellate Court proceeded on the basis that the residential portion and the commercial portion of Block A has been separately demarcated and there is no existence of any door on the wall separating the commercial portion with the residential portion at the left side of the common passage being used by the residential flat owners of Block A as per the sanction plan.

Both the Court were of the view that the petitioner should not be allowed to set up a door by breaking the wall separating the commercial place with the residential place particularly when there is specification in the sanctioned plan about the demarcation between the commercial area and the residential area of Block A of such housing project.

The Courts below were also of the view that if the shop keepers and their employees and the customers of the shop situated at the commercial area of Block A are allowed to use common passage meant for the use of the residential flat owners, such manner not only would hamper the safety and security o;f the residential flat owners of Block A, but also at the same time be treated as the invasion to the right of the privacy of such residential flat owners.

Unfortunately both the Courts have overlooked the fact that there was an existence of a door separating the landing of the ground floor from the portion under occupation of the petitioner and the portion which leads to the fleet of staircase leading to the top most floor and in that portion from second floor onwards it was only for residential purpose.

The right of the petitioner to use first floor for commercial purpose is not in dispute. In the initial sanction plan dated 6th February, 2008 of Block A of Phase-1 there was only one staircase to be used in common by residential flat owners (2nd to 6th floor) and the commercial space owners (Ground floor and 1st floor). Subsequently another plan was duly approved and sanctioned by the Municipality on 23rd February, 2012 in modification of the earlier plan whereby one more staircase from ground floor to the first floor with a separate door in the area of commercial space.

The flat owners started to occupy their respective portions from March, 2012 without raising any dispute with regard to the facilities or the existence of the door separating the area of commercial space from the rest portions. A portion of the ground floor area meant for commercial purpose was sold to Reliance Company and another portion of ground floor was leased out to another company. Both of them are entering into their respective portions from the side of the Rajarhat Main Road, where as the rest portions of ground floor as well as the entire first floor of the said Block A in phase-1 are entitled to get access to enter into the said commercial space through the common entrance of Block A. But for the safety and security reasons, in the year 2012 a separate staircase as per sanctioned plan was erected from the ground floor commercial space to the first floor commercial space and in order to get entry to the said staircase inside the commercial space a door is already fixed on the wall of the commercial space facing the landing on the ground floor common main entrance of the said Block A.

The existence of the door itself shows that the petitioner has a right to have access from the landing to the ground floor as also to the first floor through the door in existence.

The plaintiffs do not dispute the existence of such door when the property was purchased by each of the flat owners. This existence of the door is not in dispute. What is now sought is to be objected to the use of the said door for the purpose of egress and ingress exclusively to the ground floor and the first floor of which the petitioner is already the owner. That the petitioner has the right to use the ground floor and the first floor for commercial purpose to the exclusion of others is not in dispute and the plaintiffs cannot object to the commercial exploitation of the said portions. This aspect of the matter appears to have overlooked by the courts below while considering the prayer for injunction. The relief by way of an injunction is an equitable relief. The Court in such a situation is not only to find out the prima facie case, but also the balance of convenience and inconvenience liable to be caused in the event the order is passed as refused.

The petition appears to have been filed on the ground of creating obstruction to the beneficial enjoyment of the portion under the occupation of the petitioner.

Although Mr. S.N. Mukherjee, learned Senior Counsel, has raised objection with regard to the maintainability of the suit on the strength of Section 12A of the West Bengal Building (Regulation of Promotion of Construction and Transfer by Promoters) Act, 1993 and relied upon a judgement of this Court in the case of Krishna Abason Private Limited. v. Krishna Sarkar reported in 2015 (2) CHN (Cal) 82 and submitted that the suit is liable to be dismissed in absence of leave under Order I Rule 8 of the Code of Civil Procedure.

In my view the findings recorded by both the Courts below in this regard does not call for any interference in this revisional application. The issue with regard to the maintainability cannot be decided at this stage.

Under such circumstances, the impugned orders are set aside.

This revisional application is thus allowed.

The Trial Court is directed to expedite the hearing of the suit.

It is needless to mention that the suit shall be heard on merits and being uninfluenced by any observations made by this Court.

In case the suit is not ready for hearing, the Trial Court is directed to pass peremptory directions with regard to the procedural matters in order to make the suit ready for hearing and shall make endeavour to dispose of the suit as directed above.

There will be no order as to costs.