Sachhidanandan Biswas vs Prabir Kumar Ghosh

Bhaskar Bhattacharya, J.—This revisional application under Article 227 of the Constitution of India is at the instance of the Plaintiffs in a suit for declaration of title and permanent injunction and is directed against order dated May 23, 1991 passed by the learned Additional District Judge, 2nd Court, Murshidabad in Misc. Appeal No. 17 of 1991 thereby setting aside Order No. 26 dated March 6, 1991 passed by the learned Munsif, 2nd Court, Berhampore in Title Suit No. 54 of 1990 and sending the injunction matter under Order 39 Rule 1 of the. CPC back to the learned Trial Court for disposal afresh after giving the Defendants an opportunity to apply for local inspection.

The facts going rise to the instant revisional application are as follows:

a) The Petitioners filed a suit being Title Suit No. 54 of 1990 in the 2nd Court of Munsif, Berhampore, District Murshidabad against the opposite parties and one Smt. Malina Ghosh, since deceased, the mother of opposite parties No. 1 to 6 thereby praying for declaration that they are legally entitled to construct first floor building over the suit premises and the stair case leading to the proposed first floor building on the vacant land, for further declaration that the Defendants had no right to prevent them from doing the aforesaid acts and for permanent injunction restraining the Defendants from preventing the Plaintiffs and their men from making construction of the first floor building of the suit premises. According to the Petitioners, by purchase from the original owners and by subsequent partition, they have become owner of 14 decimals of land with structure which is described in Schedule ''A'' to the plaint.

b) The predecessor-in-interest of the Defendants was a tenant at a monthly rental of Rs. 35.00 on the Southern portion consisting of 3 rooms verandah, latrine, bath room, kitchen and courtyard as described in Schedule ''B'' to the plaint.

c) After acquiring their 16 annas interest by way of purchase and subsequent partition, they intimated the Defendants of the fact by a notice dated January 24, 1990 through their learned Advocate and asked the Defendants to pay rent to them alone.

d) The Petitioners family consist of 11 members and as such for the purpose of making construction over the roof of the present tenanted accommodation of the opposite parties they got a sanctioned plan from Berhampore Municipality. When the Petitioner No. 1 went with masons and labourers for construction of the first floor building as per plan they were prevented by the Defendants and hence the suit.

After filing the aforesaid suit the present Petitioners filed an application under Order 39 Rule 1 read with Section 151 of the CPC trebly praying for an order of temporary injunction restraining opposite parties from preventing and/or resisting the Petitioners and their men from making construction of the first floor building on the suit premises on the self same allegation as has been made in the plaint.

The aforesaid application for injunction was contested by the opposite parties by filing written objection thereby denying material allegations made in the plaint. According to these Defendants, the tenancy consists of entire suit property including the roof and the adjoining vacant land and as such the Petitioners had no right to make any construction on the roof of the suit property or on the vacant land adjoining the building. The opposite parties further contended that the suit building is made of mud and lime and as such the condition of the roof of the house is also not good. The opposite parties further contended that on the present structure second storey cannot be constructed and if the Plaintiffs try to make construction over the roof, the suit property will totally collapse.

The learned Trial Judge after hearing the contesting parties, by Order No. 26 dated March 6, 1991 was pleased to allow the prayer for temporary injunction thereby restraining the opposite parties from preventing or resisting the Plaintiffs and their men from making construction on the first floor building of the suit premises as per sanctioned plan.

Being dissatisfied with the aforesaid order No. 26 dated March 26, 1991 passed by the learned Trial Judge the Defendants preferred an appeal being Misc. Appeal No. 17 of 1991 which was ultimately heard by the learned Additional District Judge, 2nd Court, Murshidabad and the learned Additional District Judge by his order dated May 23, 1991 was pleased to allow the said appeal thereby setting aside the aforesaid Order No. 26 passed by the learned Trial Judge and remanding the matter back to the learned Munsif with a direction to afford opportunity to the opposite parties to apply for local Inspection Commission of the suit premises by a technical expert to ascertain whether there is any possibility or probability of the ground floor rooms collapsing in the event the first floor rooms are constructed over the existing foundation.

Being dissatisfied with the aforesaid order passed by the learned Additional District Judge, the Plaintiffs have preferred the instant revisional application under Article 227 of the Constitution of India.

Mr. S.P. Roychowdhury, the learned senior advocate appearing on behalf of the Petitioners has contended that the learned Munsif having found prima facie case and having held that balance of convenience and inconvenience lies in favour of granting injunction, the learned first appellate court below acted illegally and with material irregularity in remanding the matter back to the learned Trial Judge for the purpose of appointing an Engineer Commissioner. According to Mr. Roychowdhury, the local Municipality having sanctioned a plan for construction over the suit property, there was no necessity of sending the matter back to the learned Trial Judge for a fresh local inspection. Mr. Roychowdhury further contends that injunction being a discretionary relief and the said discretion having been properly exercised in favour of the Plaintiffs, the learned first appellate court should not interfere with the sound exercise of discretion by the learned Trial Judge.

As stated earlier, the Petitioners are admittedly landlord/owner of the suit property and the Defendants/ opposite parties are tenants under them. The dispute raised by the opposite parties is as regards the extent of tenancy as alleged in the plaint. According to the opposite parties they are tenant in respect of the entire holding including roof and vacant land and as such the Petitioners have no right to make any construction as the same will amount to encroaching upon their existing possession.

The learned Trial Judge while allowing the application for temporary injunction held that it was the duty of the opposite parties to establish that their tenancy consists of lawn and garden along with the roof of the suit premises, but they could not file any paper at the time of hearing in support of such contention. According to the learned Trial Judge, thus, prima facie, the Defendants failed to establish the extent of tenancy and whether they had really such right or not in the lawn, garden etc. was a matter of evidence in final hearing. Recording the defence of the opposite parties that the condition of the building was not strong enough to bear first floor, the learned Trial Judge found that as there is a sanctioned plan and as the Petitioners are owners of the suit property, it is expected that the Plaintiffs knowing fully well that the building is in dilapidated condition will not construct first floor over a dilapidated house for the purpose of wasting their own money. Finally the learned Trial Judge relied upon a Division Bench decision of this Court in Kumuda Sundari Properties (Private) Ltd. and Others Vs. Namdang Tea Co. Ltd., thereby holding that in a similar case where a landlord filed a civil suit before the learned Munsif against his tenant, this Hon''ble Court upheld the order of the learned Additional District Judge thereby permitting him to make construction over the suit property.

I have gone through the aforesaid decision reported in Kumuda Sundari Properties (Private) Ltd. and Others Vs. Namdang Tea Co. Ltd., It appears that the said decision was given in a mandamus appeal against the grant of ex parte interim order in a writ petition. In the said decision the Respondent No. 1 claimed to be a monthly tenant on the ground floor flat and the Division Bench recorded that it was a disputed question of fact between the Appellants and the said tenant as to whether the lawn measuring a little over 11 kottahs was included in the tenancy claimed by Respondent No. 1 or whether the Respondent No. 1 has any other kind of right over the lawn. In the said decision it was further held that the said disputed question cannot be adjudicated in a writ proceeding. The question that arose for consideration in the said mandamus appeal was whether a monthly tenant has got locus standi to file a writ petition challenging the validity of a building plan obtained by his landlord and it was held that in order to do so the tenant must establish that the said sanction interferes with his right to enjoy tenancy granted to him. It was further held that the question of locus standi to file a writ petition arises not at the stage prior to grant of sanction of building plan but at the post sanction stage. Ultimately the Division Bench after allowing the appeal directed that within 3 months, the Calcutta Municipal Corporation Authority would decide in accordance with law whether the sanction of the building plan was obtained by the Appellant by any material misrepresentation or fraudulent statement.

Therefore, the aforesaid decision was misread by the learned Trial Judge.

It is now well settled that the object of granting a temporary prohibitory injunction under Order 39 Rules 1 and 2 of the CPC is to preserve status quo of the subject matter of the dispute till the final decision is arrived at. In the instant case, the position is just the reverse. In this case, the Plaintiffs have alleged that they want to raise construction over the roof of the ground floor of the building and their allegation is that the Defendants/tenants of the ground floor are raising obstruction. The defence allegation is that he entire suit property is part of tenancy and as such the landlord have got no right to construct over any portion of the suit property. In the aforesaid fact the Plaintiff prayed for declaration that they have right to construct over the roof of the ground floor of the building but the tenants had no right to interfere. In such a suit the Plaintiffs came forward with an application for temporary prohibitory injunction thereby praying for restraining the tenants from making any obstruction in the matter of construction. Thus, the object of the Petitioners is to change the nature and character of the suit property during the pendency of the suit before their right or claim in the suit is adjudicated. In my opinion, in this type of cases no injunction should be granted. Were it a case filed by tenants restraining the landlord from making any construction over the suit property and in such a case prima facie case was not proved, the court could refuse the prayer of injunction. But when a party comes before a Court for establishing his right and wants court''s assistance for the purpose of breaking status quo, in my opinion, till the final right is adjudicated, no injunction should be granted. Even if a prima facie case is made out by the Plaintiff, in that event, that alone cannot entitle the Plaintiff to get an order of injunction of this nature because the balance of convenience and inconvenience will be in favour of refusing the interim injunction. Ultimately if it is found that the tenancy consists of the entire property, in that event, there will be multiplicity of proceeding ; over and above it will amount to dispossession of the tenant from the suit property during the pendency of the suit. On the other hand if the injunction is refused and the parties are directed to maintain status quo in that event Plaintiff will not suffer irreparable loss and injury. Therefore, in my opinion, the learned Trial Judge in granting the prayer of injunction in favour of the Plaintiff did not follow the well accepted principles which are required to be followed in disposing of an application for temporary injunction. The learned first appellate court, in my opinion, was also not right in sending the matter back to the learned Trial Judge because the investigation ordered by the first appellate court should be, if at all, done at the time of final hearing of the suit inasmuch as the Defendants have already taken the plea that the condition of the building is not good and the same cannot bear the first floor over the suit property.

Thus, in my opinion, it was the duty of the first appellate Court to set aside the order impugned passed by the learned Trial Judge and to give a direction to the learned Trial Judge to dispose of the suit within a short period. It appears that the Defendants/tenants have not preferred any revisional application before this Court against the order of the learned District Judge. Although the Defendants have not preferred any revisional application before this Court, in my opinion, this Court in exercise of its revisional power can always make the appropriate order which should be passed in the fact of the present case, notwithstanding the fact that the other party has not preferred any revisional application before this Court. Thus, in my opinion, in stead of remanding the matter back to the learned Trial Judge as done by the first appellate court, the learned Trial Judge should be directed to dispose of the instant suit within 3 months from the date of communication of this order. Till the disposal of the suit there should be status quo as regards nature and character of the suit property.

Before parting with this case, I consider it my duty to point out that against an appellate order in connection with an application under Order 39 Rule 1 of the CPC the aggrieved party should prefer a revisional application u/s 115 of the Code of Civil Procedure. In the instant case the Petitioners have filed an application under Article 227 of the Constitution of India. Such application is not maintainable. But since I do not approve of the order passed by the first appellate court below and propose to set aside the said order suo moto, I heard Mr. Roy Chowdhury on merit notwithstanding the fact that his clients'' application under Article 227 of the Constitution of India is not maintainable.

With the aforesaid observation the revisional application is disposed of.

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