Sulata Lahiri vs G.A. Randerian Ltd.

Amitava Lala, J.—On or about August 21, 1996, the Defendant instituted a suit as against one Aloke Chandra Lahiri (since deceased) and Sri Dipak Chandra Lahiri in the City Civil court at Calcutta being T.S. No. 2477 of 1996 claiming, inter alia:

a) A declaration that the Plaintiff as a monthly tenant under the Defendants in respect of the area mentioned in the sketch map and in the manner indicated therein an which is marked as Annexure ''A'' to the plaint;

b) Further declaration that the Defendants are not entitled to construct and/or obstruct and/or encroach in any way or in any manner the use and enjoyment of the common passage shown in Red ink to the sketch map marked as Annexure ''A'' to the plaint for any purpose whatsoever;

c) An order of permanent injunction restraining the Defendants their men, agents and servants from making any construction or obstruction in any way or any manner in the common passage or in any portion of the tenancy and the portion appertaining to the tenancy as shown in the sketch map and in the manner indicated therein which is marked as Annexure ''A'' to the plaint;

d) An order of permanent injunction against the Defendants from restraining the Defendants from interfering with the use and enjoyment of the tenancy as shown in the sketch map and in the manner indicated therein, which is marked as Annexure ''A'' to the plaint and free access to and from the suit premises to the road, along and upon and across the common passage without any let or hindrance from the Defendants;

e) Temporary injunction in terms of prayer (c) and (d);

f) Receiver;

g) Commission;

h) Costs;

i) Such further or other or further relief and/or reliefs as to this Court may deem fit and proper.

In the said suit an interlocutory application was moved by the Petitioner in the City Civil Court at Calcutta as on August 22, 1996, i.e. immediately after institution of the suit praying, inter alia:

a) Temporary injunction restraining the Defendants their men, agents and servants from making any construction or obstruction in any way or any manner in the common passage or in any portion of the tenancy and the portion appeartaining to the tenancy as shown in the sketch map and in the manner indicated therein which is marked as Annexure ''A'' to this application;

b) Temporary injunction against the Defendants from restraining the Defendants from interfering with the use and enjoyment of the tenancy as shown in the sketch map and in the manner indicated therein, which is marked as Annexure ''A'' to this application and free access to and from the suit premises to the road, along and upon and across the common passage without any let or hindrance from the Defendants;

c) Ad-interim order of injunction in terms of prayer (a) and (b);

d) Costs of and incidental to this application;

e) Such other or further order or orders as to Your Honour may deem fit and proper.

The application was heard, by the City Civil Court but only show cause notice was issued as to why injunction order as prayed for should not be passed but order of injunction at that stage was rejected.

The instant suit was instituted in this Court on April 21, 1997, by the mother of Aloke Chandra Lahiri and wife of Dipak Chandra Lahiri praying, inter alia:

a) Decree for recovery of possession in respect of premises as described in Schedule hereof and marked/shown in red ink as XI in the sketch plan being Annexure ''A'';

b) Perpetual injunction restraining the Defendant its servants, agents, employees from making any claim or asserting any right by themselves or through their agents, or assigns in respect of any part of the building marked ''X'' save and except the ground floor;

c) Decree for perpetual injunction restraining the Defendant its servants, agents and assigns from causing any hindrance and obstruction with regard to the peaceful enjoyment of the properties mentioned above;

d) Decree for perpetual injunction restraining the Defendant, its servants, agents and assigns from interfering with the right of the Plaintiffs in respect of Premises No. 2A, Outram Street, Calcutta and other properties owned by the Plaintiffs;

e) Decree for perpetual injunction restraining the Defendant, its servants, agents and assigns from using the compound and/or asserting any right in respect of the said properties being premises No. 2A, 2B, 2C, 2D and 2/1, Outram Street;

f) Decree for damages as claimed in paragraph 11 above and a decree for such sum as may be found due upon such enquiry;

g) Mandatory injunction directing demolition of the structures shown in plans X2 and X3 hereto collectively marked with the letter ''D'';

h) Receiver;

i) Injunction;

j) Costs;

k) Such further or other order or orders.

They have also made an interlocutory application before the Court on or about April 21, 1997, immediately after institution of the suit praying, inter alia:

a) An order of injunction be passed restraining the Respondent, its Servants and agents from making any claim or interfering with the right of the Petitioners in respect of any part of premises No. 2A, Outram Street, Calcutta and the front compound of the building at the back as shown in the sketch plan annexed hereto and marked with the letter ''F'';

b) An order of injunction restraining the Respondent its servants, agents and/or callers from creating any nuisance or acts of annoyance under any circumstances;

c) Ad-interim order in terms of prayers (a) and (b) above;

d) Receiver;

e) Injunction;

f) Cost of this application be borne by the Defendant;

g) Such further or other order or orders be made and/or direction or directions be given as this Hon''ble Court may deem fit and proper.

Parties have filed their respective affidavits in respect of the application. Parties in both the suits and/or proceedings and reliefs in connection with both the suits and/or proceedings are almost identical in nature.

The earlier suit, as filed in City Civil Court at Calcutta with connected proceedings are transfered before this High Court by an order of Superindence by this Court under Clause 13 of the Letters Patent and now placed for analogus hearing.

Dispute is with regard to use of the common area of the Premises number of original 2, Outrann Street which was subsequently re-numbered being 2A, 2B, 2C, 2D and 2/1, Outram Street. 2B, 2C and 2D and different floors of a building situates on the plot of land. The Plaintiffs in the City Civil Court suit and Defendants of the High Court suit are claiming to be the tenants in respect of the ground floor of the building being 2B, Outram Street. There is a common passage on the eastern side of the premises ultimately leading towards the Outram Street. One part one side of such common passage i.e. towards south is 2/1, Outram Street which is not the subject matter of the dispute. On the other side, i.e. northern side of the common passage a portion of land being 2A, Outram Street situates. There is also no dispute in respect of 2A as shown as marked portion under a sketch map as annexed with plaint and petition. The real dispute is the portion other than marked portion of 2A, Outram Street and portion of Common passage in the sketch map being marked with lines leading towards the Street.

The Plaintiffs in the Calcutta High Court suit and Defendants in the City Civil Court suit have submitted that this portion is part and parcel of 2A, Outram Street and not a common area of 2D, Outram Street. Therefore, the Defendants cannot have any objection in respect of construction, if any, on the plot of land being part of 2A, Outram Street. There is a sanctioned plan in respect of thereto in favour of them by the Competent authority but for the objection on the part of these Defendants in the Calcutta suit and Plaintiffs in the City Civil Court suit they are not in a position to construct the building. The Defendants herein in the Calcutta suit being the Plaintiffs in the City Civil Court suit are instead of using their sole garrage being part of the tenancy occupying such portion temporarily by keeping various other vehicles to establish such portion is part and parcel of his tenancy. The Plaintiff further said that in such valuable property the Defendants are paying rent of meagre sum of Rs. 704.17 paisa lastly paid and asking relief in respect of the portion of the land which are not part and parcel of the tenancy as would be evident from the various documents annexed in the proceedings. The suits and applications can be disposed of only upon perusing such various correspondences as annexed in the Suits and proceedings. It will also be evident from one of such correspondences that the real intention of the Defendants are to purchase the property of which it is a tenant in respect of one floor.

The Defendant, oh the other hand, contended that the space occupied by them is the common area being part and parcel of 2B, Outram Street from the very inception. Under no stretch of imagination it can be construed as part and parcel of other premises than 2B, Outram Street. If the common passage in encroached in the manner as prescribed then there will not be any space for to and fro of the car movement from the premises to Outram Street. Moreover, no such right of them should be interfared with or allowed to be interfared with.

The Plaintiffs/Petitioners herein joined issue thereto by saying a sub-merged strip of brick built line will show the common area.

However, at the initial stage I have appointed a Special Officer to make an inventory and furnish a report before this Court in respect of common area and to come to an appropriate conclusion in this respect. Such Special Officer being an Advocate of this Court appointed a Chartered Engineer from the panel of this Hon''ble Court to assist him to come to an appropriate conclusion in this respect for the purpose of filing a report to the Court for perusal, Consideration and necessary order or orders. Report goes against the Defendant of the High Court at Calcutta and Plaintiff of the City Civil Court at Calcutta i.e. the occupant of 2B, Outram Street. The concluding part of the report filed by the Special Officer in this Court on September 23, 1998, it appears as follows:

From the said car parking it appears to me that the passage of the cars to and fro the garages will not be obstructed if the proposed construction is made.

Initial stand of the occupant of the 2B, Outram Street before the Court was that the Court should not proceed only on the basis of the report of the Special Officer but on various other aspects.

Subsequently the occupant came up with two applications one by one.

One of such application is u/s 10 of the CPC dated December 22, 1998, with a supporting affidavit dated December 21, 1998, praying, inter alia, stay of the proceedings and/or further proceedings in the Suit No. 158 of 97 (Sulata Lahiri and Anr. v. G.A. Randerian Limited) etc. and incidental reliefs in connection thereto.

Other application is also made for rejection of the plaint or be taken of the file with incidental reliefs for stay of the proceedings being Suit No. 158 of 1997 Sulata Lahiri and Anr. v. G.A. Randerian Limited etc. with a supporting affidavit dated January 12, 1999, taking a plea that the suit is barred under the provisions of Order 2 Rule 4 of the Code of Civil Procedure, 1908.

At the threshold it can be said that since the City Civil Court suit along with application has already been transferred by invocation of Clause 13 of the Letters Patent by this Hon''ble Court and such suit and application so transferred, is placed along with the High Court suit and application for the purpose of analogus adjudication there is no scope of stay of subsequent suit in this respect being belated and infructuous.

Second application although belated, requires consideratipn. According to the Learned Counsel appearing on behalf of the Petitioner/Defendant of the High Court Suit being C.S. No. 158 of 1997 no cause of action shall, unless with the leave of the Court, be joined with the suit for recovery of immovable property except a) question of claims for mesne profits or arrears of rent; b) claims for damages for breach of any contract; c) claims in which relief sought is based on the same cause of action. The words of the Rule contain an interdict of a cause of action being joined with a suit for recovery of immovable property except the Clauses aforesaid. A Rule is mandatory. In support of his contention he relied upon Mannalal Khetan and Others Vs. Kedar Nath Khetan and Others, The Petitioner/Defendant also submitted that the application is not at ail mala fide as alleged by the Respondent/Plaintiff or at all.

My reading is not on a question of mala fide, therefore, I do not want to discuss on such aspect. My reading is the applications, prima facis, appears to be outcome of afterthought. Since the suit was instituted as far back as on April 21, 1997, but the application was taken out on January 13, 1999, as to why such delay is there in taking out such application by the Petitioner/Defendant is definitely a question for consideration, it appears that as and when the suits and pending interlocutory applications were specially assigned before this Court either the application to reject the plaint on account of Order 2 Rule 4 of the CPC or on account of Section 10 of the CPC were neither pending nor forthcoming. The only question was pending before the Court about the using of the common area by the Petitioner/Defendant vis-a-vis allowing construction of the premises on the extended portion purported to be 2A, Outram Street by the Plaintiff/Respondent. Therefore, all the questions relating to both the suits and applications were restricted on that score. Therefore, delay in making an application definitely gives a right of acquiescence to the Plaintiff/Respondent. Moreover, when two suits have brought by way of transfer in this Court for an analogous hearing it is an accepted position that subject matter of both the suits will be analogously heard for the purpose of ultimate conclusion leaving aside the technicalities.

So far the technicality is concerned, the same is also not tenable according to this Court. Upon going through the subject matter of the issue and prayers made in the High Court Suit being C.S. No. 158 of 1997 it is abundantly clear that causes of action are not separate but incidental to main cause of action. Causes of actions and reliefs are too distinct and different aspect of the case. In the instant case right of common use of the premises in question is deriving from the alleged right of the tenancy in respect of the premises No. 2A, Outram Street. If the tenancy cases right to common use goes automatically. If the tenancy remains right to use of common area remains. Therefore, under no stretch of imagination it can be construed that two different and distinct causes of action merged in a suit and without obtaining any leave under Order 2 Rule 4 of the Code of Civil Procedure, the Respondent/Plaintiff proceeded wrongly.

Even from the argument of the Petitioner/Defendant it is not clear as to why the right to claim to use common area will not be based on the same cause of action being exception as Clause ''C'' of the Rule 4 under Order 2 of the Code of Civil Procedure.

As such I am not in a position to accept the contention of the Petitioner/Defendant in respect of the submissions under Order 2 Rule 4 of the CPC in rejecting the plaint etc. Both the applications are optimistic attempts on their behalf to stay the hands of the court in coming to the conclusion in respect of the merit in such circumstances.

That apart a question arose in the mind of the court on different occasions that when the point is very short and only restricted about the question of use of the common area then why both the suits and applications be not disposed of at a time if there is intrinsic value of documentary evidences in respect of coming to the conclusion, prima facie, available and when court also applied its own modus operandi to come to a conclusion for the same by appointing Special Officer. If we correctly analyse 1976 amendment of the Code of Civil Procedure, we shall found that the legislature intended liberalisation of the Code to the extent of substantial justice but not to confine in the procedural formalities. Therefore consolidation of the factual aspects to come down to a proper finding cannot be an embargo in this respect.

On the other hand if disposal of the main interlocutory application-in the High Court Suit leaving aside transferred suit from the City Civil Court is made it would have been fetal for the purpose.

According to me, if the court go by the documentary evidences and be satisfied with a prima facie case of the Plaintiff in the High Court Suit and for more detail send the matter to a Special Officer with a direction to file a report and visualise the situation through the report I do not think that the court will commit any mistake in deciding both the suits and applications at a time by moulding the reliefs to the extent.

I get from the documentary evidences that the Defendant/Respondent of the Calcutta suit is temporary user of common area. I get from the report of the Special Officer that there is no hindrance in respect of to and fro of the vehicle to the main Road. I get information that the Defendant/Respondent is interested party in purchasing the property, therefore, the obstruction, if any, on their part is backed by vested interest. These are the crux of the case for drawing inference in favour of the Plaintiff/Petitioner in respect of the following reliefs.

Therefore, I have no hesitation in my mind that both the suits and applications can be disposed of by passing a decree in terms of prayer (d) of the plaint of the High Court Suit i.e. decree for perpetual injunction restraining the Defendant its servants, agents and assigns from interfering with the right of the Plaintiffs in respect of premises No. 2A, Outram Street, Calcutta and other properties owned by the Plaintiffs specially following the blue inked line in the sketch map being annEx. ''A'' to the plaint from southernside as shown therein totalling marked portion of premises No. 2A as well as unmarked portion on the southern and eastern side of the premises. There will also be a decree in terms of prayer (g) i.e. Mandatory injunction directing demolition of the structures shown in the plans X2 and X3 hereto being annEx. ''D'' therein. Save and except such relief no other relief is given to any of the parties to either of the suits.

Cost assessed at Rs. 10,000.00. The Special Officer will be entitled for final remuneration of 500 G.Ms. to be paid by the Plaintiff and will be discharged from further acting upon payment of such sum. By this judgment and order both the suits and all connected applications are disposed of. Decree will be drawn up expeditiously.

Xeroxed certified copy will be supplied expeditiously if the requisition is put for the same.

Special Officer, Calcutta Municipal Corporation arid all parties are to act on a signed copy of the minutes of the operative part of the order.