Smt. Sati Rani Sen vs Indian Standard Casting Company

Arun Kumar Dutta, J.—This revisional application by the Petitioner-Defendant No. 1 u/s 115 of the CPC is directed against the judgment and order dated September 6, 1995 passed by the learned Additional District Judge, First Court at Alipore, District 24-Parganas (South), in Misc. Appeal No. 324 of 1995 before him, for the reasons stated and on the grounds made out therein. By the said order the learned Judge had dismissed the relevant appeal filed by her and had affirmed the order dated July 14, 1995 passed by the Assistant District Judge, Fourth Court at Alipore, in Title Suit No. 86 of 1990 before him.

The facts, as are relevant for the purpose of disposal of the instant revisional application, may shortly be set out as follows:

The Defendant-opposite party No. 2 herein, M/s. Metal Box India Limited (hereinafter referred to as ''Metal Box'') was initially a tenant under the Defendant No. 1/Petitioner Sati Rani Sen (hereinafter referred to as ''Sati Rani'') in respect of the suit premises. The opposite party No. 1 /Plaintiff, M/s. Indian Standard Casting Company (hereinafter referred to as ''ISCC''), had allegedly taken physical possession of the suit premises from the previous tenant, Metal Box, on April 7, 1990. On April 24, 1990 the electric meters in respect thereof had been transferred in the name of the former (ISCC). Sati Rani had thereafter tried to interfere with the possession of ISCC in respect thereof on July 2, 1990. She had allegedly demanded through her son and son-in-law on July 7, 1990 a sum of Rs. 50,000.00 only towards premium from ISCC at the office of the Metal Box, and had threatened to oust ISCC from the suit premises if the said premium is not paid. ISCC had thereupon filed the relevant suit, being T.S. No. 86 of 1990, before the concerned Court on July 13, 1990 against Sati Rani and Metal Box (hereinafter referred to as ''first suit'') praying for a declaration that it (ISCC) was the tenant in respect of the suit premises under Sati Rani, and for permanent injunction restraining her from interfering with its peaceful possession in respect thereof. On ISCC''s application for temporary injunction, the learned Assistant District Judge concerned had, by order dated July 14, 1990 issued interim injunction restraining Sati Rani, her men and agents from interfering with ISCC''s peaceful possession of the suit premises. The Court had also directed the Officer-in-Charge of the concerned Police Station to ensure that the injunction order so issued is obeyed by them. Sati Rani had entered appearance in the said suit on July 18, 1990 and had prayed for time for filing written objection against ISCC''s application for temporary injunction. On the following day, she had preferred appeal against the aforesaid order of injunction before the District Judge at Alipore, being Misc. Appeal No. 311 of 1990, along with a prayer for stay of operation of the said order, but the prayer for stay was not granted. The learned Additional District Judge, 7th Court, had dismissed the said Appeal on May 3, 1991, and the interim order of injunction passed by the trial Court was confirmed by him. Aggrieved by the dismissal of the said appeal, she had moved a revisional application before this Court and a Division Bench of this Court by judgment and order dated May 15, 1991 had rejected the said revisional application, and had confirmed the aforesaid order passed by the learned Additional District Judge, 7th Court at Alipore. The aforesaid interim order of injunction passed by the trial Court on July 14, 1990 accordingly stood confirmed upto this Court.

In the meantime, Sati Rani had filed a suit on September 17, 1990 before the 2nd Court of Munsif at Alipore, being Title Suit No. 435 of 1990, against Metal Box and ISCC (hereinafter referred to as ''second suit'') praying, inter alia, for a declaration that Metal Box is the tenant in occupation of the self-same suit premises and that ISCC is not the tenant in respect thereof. She had also filed an application for temporary injunction in the said suit praying for restraining ISCC not to use the suit premises or occupy the same or enter therein, which was rejected by the Court on September 19, 1990. It is contended on behalf of ISCC that the learned advocate for Metal Box, Mr. Subhash Chandra Das, had informed Sati Rani and her learned advocate that ISCC had been granted tenancy by her (Sati Rani) with effect from March 1, 1990, and that it (Metal Box) was no longer a tenant in respect of the suit premises. Even so, Sati Rani had taken over possession of the suit premises by evicting the security guard of ISCC on May 23, 1995 during the pendency of the said two suits.

On enquiry, ISCC had come to learn that Sati Rani had instituted yet another suit before the Court of the same very Munsif on February 22, 1993, being Title Suit No. 66 of 1993, against Metal Box only, without impleading ISCC therein (hereinafter referred to as ''Third Suit'') praying for eviction of Metal Box from the same very suit premises on the grounds of default in payment of rent and reasonable requirement. Sati Rani got an ex parte decree in the said suit against Metal Box on January 4, 1995 for recovery of possession of the suit premises from the latter. It is contended by ISCC that the ex parte decree obtained by Sati Rani against Metal Box was executed against it (ISCC).

In the aforesaid circumstances, ISCC had filed an application under the provisions of Order 21, Rule 99 of the CPC (hereinafter referred to as ''Code'') on May 31, 1995 before the Executing Court in Title Execution Case No. 12 of 1995, arising out of the aforesaid Title Suit No. 66 of 1993. On June 6, 1995 it (ISCC) had filed another application before the trial Court in the first suit filed by it praying for mandatory order for restoration of possession of the suit premises and the movable goods removed by Sati Rani, as mentioned in the schedule thereto. The said application was allowed with cost by the trial Court on July 14, 1995, and Sati Rani was directed to restore possession of the suit premises in favour of ISCC within 7 days. She (Sati Rani) had preferred appeal there against before the learned district Judge at Alipore, being Misc. Appeal No. 324 of 1995, on July 20, 1995. The learned additional district Judge, 1st Court at Alipore, who had heard the said Appeal, had dismissed the same by passing the impugned judgment and order dated September 6, 1995 for the reasons recorded at length by it. Being aggrieved by the order so passed by the said Court, Sati Rani has moved the instant Revisional Application on the grounds made out therein.

From the facts and circumstances stated above, it would pretty clearly appear that ISCC had claimed to be in possession of the suit premises as a tenant under Sati Rani in the said first suit (T.S. No. 86 of 1990) on the averments made in the plaint. Sati Rani had been injuncted from interfering with ISCC''s peaceful possession in respect thereof by an order passed by the trial Court on July 14, 1990, which order stood confirmed upto this Court. The said order of injunction still stands. Despite the pendency of the aforesaid first suit filed by ISCC claiming tenancy and possession in respect of the suit premises which is yet to be decided by the Court on trial, Sati Rani had amazingly filed the second suit before the 2nd Court of Munsif at Alipore on September 17, 1990, against both Metal Box and ISCC praying for a declaration that Metal Box is the tenant in occupation of the same very suit premises, and that ISCC is not the tenant in respect thereof, even though the question as to whether ISCC is the tenant in possession of the suit premises is a matter for consideration and decision in the aforesaid first suit. Her application for temporary injunction praying for restraining ISCC from using and occupying the suit premises having been rejected in the said suit and ISCC''s prayer for injunction having been allowed in the first suit filed by it, as stated above, it would seem so unlikely as to be scarcely credible and it is beyond belief that ISCC would not be in possession of the suit premises. There could clearly, therefore, be no mistaking that ISCC was in possession of the suit premises to the knowledge of Sati Rani. And, ISCC had presumably been impleaded by her in the aforesaid second suit filed by her as she was secure in the knowledge that the former was a necessary and proper party therein. Dubiously, however, she did not implead ISCC in the third suit for eviction filed by her against Metal Box (T.S. No. 66 of 1993) even though ISCC was impleaded by her in the said second suit filed by her. She had further filed the third suit for eviction against Metal Box only even though the learned advocate for Metal Box had informed her and her learned Advocate in the aforesaid second suit filed by her that ISCC was in possession of the suit premises as a tenant, and that it (Metal Box) was no longer a tenant in respect thereof. The reasons are not for to seek, and the implication appears to be immediately apparent and obvious ! And, the ex parte decree for eviction obtained by her in the said third suit against Metal Box had been executed by her against ISCC in violation of the injunction order issued in the first suit and without obtaining any decree for eviction against ISCC. The eviction of ISCC from the suit premises and all acts by Sati Rani in connection therewith on the teeth of the aforesaid interim order of injunction issued in the first suit must clearly be held to be illegal in terms of the decision of the Supreme Court in Satyabrata Biswas and others Vs. Kalyan Kumar Kisku and others, must, therefore, be held to have been illegally evicted from the suit premises by Sati Rani without due process of law against it. The factum about pendency of the first two suits and about the issue of interim order of injunction in the first suit against her and the rejection of her prayer for temporary injunction in the second suit filed by her further appear to have been suppressed from the Court in the third suit filed by her for eviction of Metal Box from the suit premises. As rightly held by the lower appellate court, if the said facts had been brought to the notice of the Court the decree for eviction against Metal Box might not have been passed by the Court in the said third suit. Sati Rani clearly, therefore, appears to have obtained the said ex parte decree for eviction against Metal Box by suppressing all relevant facts from the Court, which, to my judgment, is nothing short of practising fraud upon the Court in obtaining the said ex parte decree, despite the pendency of the first two suits, which are yet to be decided on trial. The eviction of ISCC from the suit premises by executing the ex parte decree against Metal Box could neither be held to be lawful, as indicated above.

This Court in Indian Cable Company Limited Vs. Smt. Sumitra Chakraborty, where the tenant had been in peaceful possession of the suit premises and the landlady had taken over possession of the same knowing fully well that she had no right to do so during the continuance of the tenancy, has held that she had taken over possession of the disputed premises wrongfully and by abuse of the process of Criminal Court. It was thus held therein that the tenant was entitled to be restored to possession even on an inter-locutory application, holding further that 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.

A Division Bench of this Court in Sujit Pal Vs. Prabir Kumar Sun and Others, on similar facts and circumstances, had also held that the Court could grant temporary mandatory injunction u/s 151 by directing the police to restore possession to the Plaintiff, the injury being grave and serious, ends of justice demanding that Court should grant immediate relief, further observing that no technicality can prevent the Court from doing justice in exercise of its inherent power. Order 39, Rule 2A lays down a punitive measure for the purpose of compelling a party to comply with the order of injunction. The process as contemplated by the said provision may or may not be ultimately effective but, in any event, the procedure laid down therein is incapable of granting an immediate relief to a party who has been forcibly dispossessed in violation of an order of injunction. In such a case the Court is not powerless to grant relief to the aggrieved party in exercise of its inherent power. The very object for which Order 39, Rule 2A has been enacted will be fulfilled by the grant of a temporary mandatory injunction and restoration of possession of the aggrieved party. The inherent power of the Court, as recognised in Section 151 of the Code is in addition to the power conferred on the Court under the provisions of the Code. All that the Court is concerned is to prevent abuse of the process of Court and to do justice by immediately intervening under circumstances which require such intervention by the Court.

It had similarly been held by a Full Bench of the Madras High Court in Century Flower Mills Limited v. S. Supplant AIR 1975 Madras 270that where an act is done in violation of an order of stay, or injunction, it is the duty of the court, as a policy, to set the wrong right and not allow the perpetuation of the wrongdoing. The inherent power of the Court, it was held, is not only available in such a case, but it is bound to exercise it to undo the wrong in the interest of justice. In that case a meeting was held contrary to an order of injunction. The Court refused to recognise that the holding of the meeting was legal. It put back the parties in the same position as they stood immediately prior to the service of the interim order.

The Supreme Court in Mohammad Idris and Another Vs. Rustam Jehangir Babuji and Others, had further clearly held, in similar circumstances, that undergoing punishment for contempt does not mean that the Court is not entitled to give appropriate directions for remedying and rectifying things done in violation of its orders. The following observations of Sir Robert Megassy V.C. in Clarke v. Chadburn (1985) 1 All. E.R. 211 would also seem worth-bearing in mind in this context:

I need not cite authority for the proposition that it is of high importance that orders of the court should be obeyed. Wilful disobedience to an order of the Court is punishable as a contempt of Court, and I feel no doubt that such disobedience may properly be described as being illegal. If by such disobedience the persons enjoined claim that they have validly effected some charge in the rights and liabilities of others, I cannot see why it should be said that although they are liable to penalties for contempt of court for doing what they did, nevertheless those acts were validly done. Of course, if an act is done, it is not undone merely by pointing out that it was done in breach of the law. If a meeting is held in breach of an injunction, it cannot be said that the meeting has not been held. But the legal consequences of what has been done in breach of the law may plainly be very much affected by the illegality. It seems to me on principle that those who defy a prohibition ought not to be able to claim that the fruits of their defiance are good, and not tainted by the illegality that produced them.

The Supreme Court in Delhi Development Authority Vs. Skiper Construction Company (P) Ltd. and another, went further to add that the aforesaid salutory rule has to be applied and given effect to by the Court, if necessary, by overruling any procedural or other technical objections to ensure full justice between the parties before it.

Realising the difficulty somewhat tardily, the learned advocate for the Petitioner had as well sought to submit, in the facts and circumstances herein, that remedy is available to ISCC under the provisions of Order 39, Rule 2A of the Code. But no such remedy has been availed of by it. The other remedy available to it is to make application under Order 21, Rule 99 of the Code, which it did. It had thus been submitted on behalf of the Petitioner that ISCC having sought for the remedy available to it under Order 21, Rule 99 of the Code, the remedy sought for by way of mandatory order would not be available to it. No such order could either be passed by the Court in view of the provisions of Section 41(h) of the Specific Relief Act. But to that I would at once note with a minute of dissent in view of the decisions hereinbefore referred to, which cannot be differed from, the aforesaid technical/procedural objections sadly sought to be raised on behalf of the Petitioner are liable to be at once overruled. The decisions in Cotton Corporation of India Limited Vs. United Industrial Bank Limited and Others, , Mooruddin v. Dr. K.L. Anand J.T. 1994 (7) S.C. 652, Morgan Stanley Mutual Fund Vs. Kartick Das, and Subhendu Gupta and Anr. v. Calcutta Vyapar Pratisthan Ltd. and Ors. C.L.T. 1995 (1) H.C. 427 referred to by the learned advocate, clearly do not seem to be applicable to the facts and circumstances; herein and would be of little avail to her.

The following observation of the Supreme Court in Samir Sobhan Sanyal Vs. Tracks Trade Pvt. Ltd. and others, may be recalled in this context:

It would thus be clear that without any decree or order of eviction of the Appellant from the demised premises, he has been unlawfully dispossessed from the premises without any due process of law. The question, therefore, is, whether he should be allowed to remain in possession till his application under Order 21, Rules 98 and 99 is adjudicated upon and an order made. Though the learned Counsel for the first Respondent and also for the third Respondent, who is one of the transferees from the sixth Respondent, sought to contend that the Appellant has no right to remain in possession after the lessee, M/s. India Foils Ltd. had admitted by a resolution that the Appellant has no right to remain in possession, we are not impressed with the arguments. At this stage, we are only concerned with his admitted possession of the demised premises. What rights would flow from a contract between him and his employer is a matter to be adjudicated in his application filed under Order 21, Rules 98 and 99, Code of Civil Procedure. At this stage, it is premature to go into and record any finding in that behalf. The learned Counsel for the first Respondent also repeaedly sought to bring to our notice that on account of the orders of the Court Officer passed by the High Court the maintenance cost has been mounting up due to the delay in disposal of the proceedings in various courts. Even with regard to that, we are not impressed with the same. Since the letter of the law should strictly be adhered to, we find that high-handed action taken by Respondents 1, 3, and 6 in having the Appellant dispossessed without due process of law, cannot be overlooked nor condoned. The Court cannot blink at their unlawful conduct to dispossess the Appellant from the demised property and would say that the status quo be maintained. If the Court gives acceptance to such high-handed action, there will be no respect for rule of law and unlawful elements would take hold of the due process of law for ransom and it would be a field day for anarchy. Due process of law would be put to ridicule in the estimate of the law-abiding citizens and rule of law would remain a mortuary.

in view of the foregoing discussions and decisions and the fact that ISCC has been unlawfully dispossessed from the suit premises by Sati Rani without any due process of law against it (former), in gross violation of the aforesaid order of injunction dated July 14, 1990, which stood confirmed upto this Court, the Court below'' cannot be said to have exercised a jurisdiction not vested in it by law or had acted in exercise of its jurisdiction illegally or with material irregularity in passing the impugned order, It did, in the facts and circumstances herein. Per contra, it was perfectly justified in passing the aforesaid impugned order, for the reasons ably recorded.

In the premises above, I find no ground whatsoever for interfering with the impugned judgment and order passed by the Court below. The instant revisional application should thus clearly fail, as it must, and be accordingly dismissed with costs quantified at Rs. 10,000.00 only, payable by the Petitioner to the opposite party No. 1, in the facts and circumstances indicated above. The impugned order accordingly stands confirmed. The Petitioner is directed to put the opposite party No. 1 Indian Standard Casting Company in possession of the disputed premises forthwith, not later than 24 hours.

Interim order, if any, stands vacated.