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2000 Supreme(Cal) 264
High Court Of Calcutta
S. B. Sinha, M. H. S. Ansari, S. N. Bhattacharjee
PARAMANAND AGARWAL - Appellant
Versus
SUDERA ENTERPRISES PVT.LTD - Respondent
Suit 601 Of 1989
Decided On : 05/18/2000
The principles of res judicata apply to interlocutory orders, but only if the subsequent application is based on the same facts and circumstances as the earlier application.
Headnote:
AIR CONDITIONING CHARGES - WEST BENGAL PREMISES TENANCY ACT, 1956 - SECTION 4 - AGREEMENT - INTERPRETATION - ELECTRICITY CHARGES - ENHANCEMENT - MODIFICATION OF INTERIM ORDER - RES JUDICATA - RECEIVER - DISCHARGE. 1. An application for modification of an interim order is maintainable under Order 39 Rule 4 of the Code of Civil Procedure, even if there has been no subsequent event, if the applicant can show that the order has become unworkable or that there has been a change in circumstances. 2. The interpretation of an agreement is a question of law and can be decided by the court in an application for modification of an interim order. 3. The court has the power to discharge a Receiver appointed under Order 40 Rule 1 of the Code of Civil Procedure if it is satisfied that the Receiver is not performing his duties properly or that there is no longer any need for a Receiver. 4. The principles of res judicata apply to interlocutory orders, but only if the subsequent application is based on the same facts and circumstances as the earlier application. 5. An application for modification of an interim order cannot be used to enlarge the scope of an appeal.
Fact of the Case:
The plaintiffs are the appellants. The plaintiff No. 3 is an Association of Shop-keepers of A. C. Market registered under the West Bengal Societies Registration Act, 1961. The owner of said market is the defendant No. 1. The other 2 plaintiffs are the shopkeeper-tenants under the defendant No. 1. The defendant No. 1 constructed a multi-storied buildings and converted the upper and lower basements as well as the ground and part of the first floor thereof in a market in the year 1972 known as "air-Condition Market". The said market is a certrally air-conditioned one wherein 206 shops exist.
Finding of the Court:
1. The application for modification of the interim order was maintainable under Order 39 Rule 4 of the Code of Civil Procedure. 2. The interpretation of the agreement was a question of law and could be decided by the court in the application for modification of the interim order. 3. The court had the power to discharge the Receiver appointed under Order 40 Rule 1 of the Code of Civil Procedure if it was satisfied that the Receiver was not performing his duties properly or that there was no longer any need for a Receiver. 4. The principles of res judicata applied to interlocutory orders, but only if the subsequent application was based on the same facts and circumstances as the earlier application. 5. An application for modification of an interim order could not be used to enlarge the scope of an appeal.
Issues: 1. Whether an application for modification of an interim order is maintainable under Order 39 Rule 4 of the Code of Civil Procedure, even if there has been no subsequent event? 2. Whether the interpretation of an agreement is a question of law and can be decided by the court in an application for modification of an interim order? 3. Whether the court has the power to discharge a Receiver appointed under Order 40 Rule 1 of the Code of Civil Procedure if it is satisfied that the Receiver is not performing his duties properly or that there is no longer any need for a Receiver? 4. Whether the principles of res judicata apply to interlocutory orders? 5. Whether an application for modification of an interim order can be used to enlarge the scope of an appeal?
Ratio Decidendi: 1. An application for modification of an interim order is maintainable under Order 39 Rule 4 of the Code of Civil Procedure, even if there has been no subsequent event, if the applicant can show that the order has become unworkable or that there has been a change in circumstances. 2. The interpretation of an agreement is a question of law and can be decided by the court in an application for modification of an interim order. 3. The court has the power to discharge a Receiver appointed under Order 40 Rule 1 of the Code of Civil Procedure if it is satisfied that the Receiver is not performing his duties properly or that there is no longer any need for a Receiver. 4. The principles of res judicata apply to interlocutory orders, but only if the subsequent application is based on the same facts and circumstances as the earlier application. 5. An application for modification of an interim order cannot be used to enlarge the scope of an appeal.
Final Decision: Appeal No. 464 of 1995 is dismissed whereas Appeal No. 465 of 1995 is allowed. However, in the facts and circumstances of this case there will be no order as to costs.
( 1 ) REFERENCE of this matter to this Bench has been made under extraordinary circumstances.
( 2 ) THE plaintiffs are the appellants. The plaintiff No. 3 is an Association of Shop-keepers of A. C. Market registered under the West Bengal Societies Registration Act, 1961. The owner of said market is the defendant No. 1. The other 2 plaintiffs are the shopkeeper-tenants under the defendant No. 1.
( 3 ) THE defendant No. 1 constructed a multi-storied buildings and converted the upper and lower basements as well as the ground and part of the first floor thereof in a market in the year 1972 known as "air-Condition Market". The said market is a certrally air-conditioned one wherein 206 shops exist.
( 4 ) ACCORDING to the defendant No. 1, for the purpose of supplying high-tension electricity, two transformers were installed at enormous expenses in the years 1969 and 1972, the normal expected life whereof is 25 years. It is stated:"the air-conditioning plant installed by the defendant No. 1 in the said building comprises, inter-alia, of 12 compressors and air handling units of different powers. The capacity requirement of the plant is about 780 T. R. Ferom Gas, which is an expensive but essential ingredient for air conditioning plants. The capacity of the said plant is 780 tonnage refrigeration, which, inter alia, requires 12 compressors and 14 air handling units. Air handling units are terminal equipments required for distributing refrigerated or cooled air into different spaces through ducting systems. The capacity of distributive power of the said air handling units are different in different areas of use, such as market and offices. The high the power of the said air handling units, the higher the electricity consumption. 5 air handling units having a capacity of 355 tonnage refrigeration are required only for the said market. 780 tonnage of air conditioning plant has been installed in the said building for its central air conditioning. Taking into account the staffs and employees of the said shops, about 1000 people are visiting the said market per hour. A huge quantity of commodities of diverse types such as textiles, garments, footwear, leather goods, electrical and electronic equipments and food staff etc. are stored in the said market. The shops at the said market use very powerful condeceand and vapour lamps which consume lot of power and generate considerable heat. This requires extra air conditioning and consequent consumption of a huge amount of electrical energy to keep and to maintain the required ventilation and temperature at the said market, which far exceeds the normal need for offices. Besides, the said air conditioning plants are required to be operated from around 7 a. m. so that the required temperature is attained at about 9. 30 a. m. when the market opens. For the aforesaid reasons the air conditioning requirement for the market of 355 tonnes. The cost per square feet for air conditioning the said market would came to Rs. 20. 07 paise approximately, taking into account the assets replacement cost, electrical energy cost for plant operation, annual maintenance cost and service cost. The asset replacement cost, electrical energy cost for plant operation, annual maintenance cost and service cost are each subject to and have risen and are continuing to rise beyond expectation. The enhancement of rates by the defendant No. 9 and the other cost charged and expenses have in fact increased and are presently continuing to increase by more than 10 (ten) per cent per year. "
( 5 ) THE said Air-Conditioning Plant is allegedly required to be operated from around 7 a. m. so as to attain the minimum temperature at about 9. 30 a. m. when the market opens. According to the defendants the costs per square feet for air conditioning the market comes to Rs. 20. 07 paise per unit approximately considering the electricity charges and other expenses including maintenance cost. Allegedly, enhancements made in the el
