Jiban Krishna Banik vs Puspa Rani Das

Shampa Sarkar, J

This is an application filed by the plaintiff in Title Suit No.322A of 2016 pending before the learned Civil Judge (Junior Division), 2nd Court at Sealdah, District 24 Parganas (South).

The suit was filed for declaration of tenancy in respect of a flat consisting two bedrooms, one dinning, one kitchen and attached bath and privy in the ground floor of the Premises No.136-B, Bidhan Nagar Road, Kolkata-700067. The plaintiff claimed to a monthly tenant in respect of the said premises in question on the basis of a tenancy agreement. That as the opposite party/landlord started disturbing the possession of the plaintiff by engaging some antisocial elements, the suit was filed for declaration that the plaintiff/petitioner was a bona fide tenant in respect of the suit property. An application for temporary injunction under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure was also filed praying for injunction restraining the defendant from disturbing the possession of the plaintiff and for other reliefs. The opposite party/landlord filed an objection to the said application for temporary injunction and stated that the plaintiff had vacated the suit property in the month of July, 20147 by handing over the keys. That the question of dispossession or disturbing the possession of the plaintiff did not arise in view of surrender of tenancy. That the two storied building was dilapidated and the landlord started construction on the said premises upon obtaining a sanction plan from the Kolkata Municipal Corporation on October 5, 2016 and upon such construction the landlord had also shifted to a nearby premises and had handed over the vacant possession to the contractor for making the construction. Thus, the question of grant of any injunction over the suit premises did not arise, inasmuch as, the tenanted premises was not in existence and the property was being developed, more so, the plaintiff was not in possession since 2014.

The application for temporary injunction came up for hearing before the learned Civil Judge (Junior Division), 2nd Court at Sealdah, District 24 Parganas (South) on December 19, 2017. The learned Trial Judge upon hearing the parties came to the conclusion that the claim of tenancy of the plaintiff could not be decided without evidence and as such, the parties should be directed to maintain status quo with regard to the suit property. The said order was challenged by way of an appeal by the opposite party being Misc. Appeal No.4 of 2018 before the learned Additional District Judge, 2nd Court at Sealdah. The learned Additional District Judge, 2nd Court at Sealdah by an order dated June 18, 2018 allowed Misc. Appeal No.4 of 2018 on the ground that the plaintiff could not prove the prima facie case of balance of convenience and inconvenience in his favour, in view of the fact that, the property had already been demolished and a new building was coming up on the said premises. The learned lower appellate court came to a finding that the plaintiff was not in possession of the suit premises.

Aggrieved by the said order, the petitioner preferred C.O. 1933 of 2018. C.O. 1933 of 2018 was disposed of by re-imposing the order of status quo granted by the learned Civil Judge (Junior Division), 2nd Court at Sealdah and the learned Additional District Judge, 2nd Court at Sealdah was directed to hear the Misc. Appeal No.4 of 2018 afresh. The Misc. Appeal No.4 of 2018 was heard and allowed by the learned Additional District Judge, 2nd Court at Sealdah by an order dated August 6, 2018 which is impugned before this Court.

It is an admitted fact that in a letter annexed to the supplementary affidavit filed in connection with Title Suit No.322A of 2016 the plaintiff had admitted that the defendant had dispossessed him from the suit property and had started demolition of the structure and was developing the same. Thus the learned lower appellate court came to a finding that when the plaintiff was not in possession of the suit property and when there was no existence of the suit property as it were at the time of tenancy, the question of status quo over the suit property did not arise. The learned appellate court below also relied upon a document produced by the defendant that is the letter dated December 26, 2016 written by the plaintiff to the Officer in-Charge, Maniktala Police Station, wherein the plaintiff had admitted that prior to filing of the suit, the defendant had already started construction on the premises in collaboration with a promoter cum developer without making any negotiation with the plaintiff. Documents, which were also disclosed before the learned court below show that the plaintiff had already purchased his own flat and was residing there. The cause title to the plaint also reveals that the suit was filed when the plaintiff was residing at his own premises. Thus, on the basis of the said record the learned lower appellate court came to a finding that the plaintiff was not entitled to any injunction restraining the defendant from changing the nature and character of the property. The learned court below also came to a finding that if the plaintiff was ultimately successful in the suit then the plaintiff's right of tenancy would revive on the reconstructed new building therein.

Reference is made on the decision of this Court in the matter of Sandhya Das (Khan) & Ors. versus Manik Banik & Ors. reported in 2011 (2) CLJ (Cal) 1. The relevant paragraphs of which are set out below:

"12. This Court is not unmindful about the scope of consideration of an application for ad-interim injunction which is different from that of the scope of consideration of an application for temporary injunction. Though the basic tests for grant of interim injunction; be it at the ad-interim stage or at the stage of temporary injunction hearing, are all the same but still then there are some remarkable differences in the scope of consideration between these two stages of hearing, as while considering an application for ad-interim injunction, the Court has to restrict its consideration only to the pleadings of the plaintiff made out in the plaint as well as in his application for injunction and the documents on which reliance is made by the plaintiff in support of his prayer for ad-interim injunction, but while considering the application for temporary injunction the Court is required to consider not only the pleadings of the plaintiff and the documents filed by him but also the pleadings of the defendant and the documents if any filed by him. In fact, the said principle was laid down by the Division Bench of the Hon'ble High Court in the case of Sm. Muktakesi Dawn and Ors. v. Haripada Mazumdar and Anr. reported in AIR 1988 Cal page 25. It is also settled principle of law that while considering the plaintiff's prayer for ad-interim injunction the Court is required to find out as to whether a prima facie case has been made out by the plaintiff in his said application or not. Prima facie case does not mean a full proof case. Prima facie means an arguable case i.e. as to whether the plaintiff has succeeded in making out a triable issue in the plaint or not. Thus, if it is found that a prima facie case has been made out by the plaintiff and the balance of convenience and inconvenience is in his favour and if the loss which the plaintiff may suffer in case of refusal to grant ad-interim injunction, cannot be compensated by monetary value, then only ad-interim injunction can be passed in favour of the plaintiff, in case of grave urgency by dispensing with the requirement of service of notice upon the other side.

Keeping in mind the aforesaid principles of law, this Court has carefully scrutinized the pleadings of the plaintiffs in the plaint as well as in their application for injunction and the documents on which they relied upon in support of their prayer for ad-interim injunction and on such consideration this Court finds that at least a triable issue has been raised by the petitioner in the said application in support of their prayer for ad-interim injunction, as the plaintiff has produced some materials before the Court to show induction of this maternal grandfather in the said premises by the original owner of the said premises as tenant thereof and thereafter by successive successions the plaintiffs have now inherited the said tenancy.

The tenancy right is a heritable right under the West Bengal Premises Tenancy Act, 1956 and as such, such right cannot be extinguished on the death of the original tenant. Tenancy right can be extinguished either by surrender of tenancy by the tenants or by eviction of the tenants by following the due process of law. Since the plaintiffs claim that the tenancy which they inherited from their predecessors, has not been extinguished by any of the modes recognised under law, they are still tenants in the suit premises and merely for non-payment of rent for certain period their tenancy right in the suit property cannot be extinguished.

Though it is no doubt true that the tenancy right of a premises tenant cannot be extinguished due to non-payment of rent without being followed by decree of eviction, but the fact remains that in the instant case the plaintiffs have not produced any document to show that they paid any rent for the said premises since January 2004, nor they placed any material before the Court to show that they made any effort to pay rent since 2004. Even no document showing their possession in the suit property since 2004 has been produced by the plaintiff. Admittedly, the business which their predecessors used to carry on in the said tenancy has been stopped long ago. Thus, though this Court finds that the plaintiffs have made out a prima facie case in support of their claim for tenancy right in the suit premises but their possession therein as on the date of filing of the suit is doubtful, as no material showing the possession therein as on the date of filing of the suit, has been produced.

Be that as it may, the plaintiff themselves have admitted in their application for contempt that the entire building has been demolished completely by 26th May, 2009. Thus admittedly the suit premises is not in existence as on today. It is true that even if the premises is demolished, the tenancy right of tenant does not evaporate automatically and such right will stand restored and/or revived whenever the building is reconstructed. Thus, if the plaintiffs ultimately succeed in proving that they inherited their tenancy right in the suit premises and their tenancy right has not been extinguished otherwise, then their tenancy right will revive with the reconstruction of the new building therein.

In my view, the relief which was claimed by the plaintiff in the instant application for injunction cannot now be granted in the changed scenario inasmuch as the plaintiff admitted in their contempt petition that the said building was completely demolished on 26th May, 2009.

Under this circumstances this Court holds that the order of status quo which was passed earlier in this application practically has become redundant as the plaintiffs are now not in actual possession though they may have constructive possession therein and their actual possession may be restored ultimately after reconstruction of the said building provided they can establish their tenancy right in the suit premises."

Thus, prima facie it appears that the plaintiff was not in possession when the suit was filed. Such a fact is also revealed from the letter written by the plaintiff to the Officer in-Charge, Maniktala Police Station dated December 26, 2016. The such letter also reveals that at the time of filing of the suit the development agreement was already in existence and the construction was being continued by the developer upon demolition of the earlier building, on a portion of which the plaintiff claims to be a tenant.

The maximum right that the plaintiff can exercise on the said property after being successful in his suit is revival of a portion of the said building as his tenanted property.

However, a blanket order of status quo will cause irreparable loss and injury and undue hardship to the landlord who has already developed the property with the help of a developer to a considerable extent and prima facie records reveal that the plaintiff was already out of possession at the time of filing of the suit.

Thus, considering the prima facie case, irreparable loss, balance of convenience and inconvenience, I am of the opinion that an order of injunction restraining the defendant from dealing with the property or changing the nature and character of the property would not be proper. It is however, made clear that the defendant will not claim any equity with regard to the plaintiff's right as a tenant in respect to a portion of the reconstructed property, in case the plaintiff is successful in his suit.

In view of the averments in the plaint, it is necessary for the ends of justice that the suit should be decided expeditiously and the learned court below is requested to proceed with the hearing of the suit as expeditiously as possible and conclude the same not later than one year from the date of communication of this order.

The revisional application is disposed of.

In view of the above disposal of the revisional application, CAN 10508 of 2019 is disposed of accordingly.

There will be, however, no order as to costs.

Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis.