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2002 Supreme(Cal) 267
High Court Of Calcutta
Subhro Kamal Mukherjee
SAMBHU NATH PANDEY - Appellant
Versus
JITESH PANDEY - Respondent
Civil Order 2710 Of 2000
Decided On : 04/23/2002
PRABAL MUKHERJI, SABYASACHI BHATTACHARYA
An order of temporary injunction can only be granted if the plaintiff has made out a prima facie case, the balance of convenience is in his favour, and he would suffer an irreparable injury if the injunction is not granted.
Headnote:
POSSESSION - RESTORATION - TENANT - DISPOSSESSION - INJUNCTION - TEMPORARY - POSSESSION - UNLAWFUL - WRONG LEGAL TEST - JURISDICTION - ERROR - INJUNCTION - TEMPORARY - REJECTED - SUIT - DISPOSAL - UNINFLUENCED BY OBSERVATIONS - HEARING - EXPEDITED.
Fact of the Case:
Sambhu Nath Pandey, a tenant, was dispossessed from the tenanted premises by Shrimati Jayshree Sinha, the landlady, taking advantage of an order passed in a proceeding under section 133 of the Code of Criminal Procedure. Jitesh Pandey, the opposite party, filed a suit for declaration of tenancy and injunction to restrain the defendants from disturbing his possession. The trial court rejected the application for temporary injunction, but the lower appellate court allowed the appeal and granted the injunction.
Finding of the Court:
The court found that the plaintiff, Jitesh Pandey, had failed to make out a case for temporary injunction. The court held that the defendant No. 3, Sambhu Nath Pandey, was a tenant in respect of the suit premises and that he was dispossessed without due process of law. The court also found that the initiation of the proceedings in the court of the Executive Magistrate at Alipore was neither bonafide nor lawful.
Issues: 1. Whether the plaintiff, Jitesh Pandey, was entitled to an order of temporary injunction restraining the defendant No. 3, Sambhu Nath Pandey, from taking possession of the suit premises? 2. Whether the lower appellate court erred in applying wrong legal tests and thereby committed error of jurisdiction in passing an order of injunction in favour of the plaintiff till the disposal of the suit?
Ratio Decidendi: 1. An order of temporary injunction can only be granted if the plaintiff has made out a prima facie case, the balance of convenience is in his favour, and he would suffer an irreparable injury if the injunction is not granted. 2. The plaintiff failed to make out a prima facie case as he was not a lawful tenant and had no right to possession of the suit premises. 3. The balance of convenience was in favour of the defendant No. 3, Sambhu Nath Pandey, as he was the lawful tenant and had been dispossessed without due process of law. 4. The plaintiff would not suffer an irreparable injury if the injunction was not granted as he was not in lawful possession of the suit premises. 5. The lower appellate court erred in applying wrong legal tests and thereby committed error of jurisdiction in passing an order of injunction in favour of the plaintiff till the disposal of the suit.
Final Decision: The court allowed the revisional application, set aside the judgment and order impugned passed by the lower appellate court, and restored that of the learned Trial Judge. The application for temporary injunction filed by the plaintiff in Title Suit No. 64 of 1999 was rejected.
( 1 ) THIS is to consider an application under section 115 of the Code of Civil Procedure against the judgement and order dated September 22, 2000 passed by Shri. Bilas Mukhopadhyay, learned Additional District Judge, First Court at Alipore, District : 24 Parganas (South) in Misc. Appeal No. 11 of 2000 reversing the order dated December 23, 1999 passed by Shri S. S. Sadhu, learned Civil Judge (Senior Devision), Fifth Court at Alipore, District : 24 Parganas (South) in Title Suit No. 64 of 1999.
( 2 ) THE relevant facts, which are necessary for disposal of this revisional application, are summarised as under :
( 3 ) SAMBHU Nath Pandey, the defendant No. 3 in this suit, and Janardan Pandey were inducted as premises tenants by Samarjit Sinha, the husband of the defendant No. 2 in this suit, and Shrimati Urmilata Sinha, the defendant No. 1 in this suit, in respect of one hall room with bath and privy with floor area measuring about 1000 sq. ft. on the north eastern corner in the ground floor of premises No. 11/a, Braunfeld Row, Police Station : Ekbalpore, Calcutta 27 at a monthly rental of Rs. 350/- (Rupees three hundred fifty) only payable according to English calendar. However, an agreement was reduced into writing in the shape of an agreement of tenancy executed by the aforesaid persons on March 20, 1984. In the said agreement it was expressly noticed that the tenants should be entitled to use the premises for residential or for godown purposes and small manufacturing purposes.
( 4 ) SHRIMATI Jayshree Sinha, wife of the said Samarjit Sinha, initiated a proceeding under section 133 of the Code of Criminal procedure against Sambhu Nath Pandey in the court of Executive Magistrate at Alipore and the said proceeding was registered as M. P. No. 3358 of 1993. It is alleged in the said application that she was the owner of the said premises and Sambhu Nath Pandey was a licensee in respect of a room at a monthly licence fee of Rs. 50/- (Rupees fifty) only. It was, further, alleged that the said Sambhu Nath Pandey left the tenanted room about a year back taking away all his articles and belongings after locking the said room. It was complained that for few days back bad smell was coming out from the room causing public nuisance.
( 5 ) ON November 24, 1998 the Executive Magistrate at Alipore directed the Officer-in-Charge, Ekbalpore Police Station to enquire and report by December 22, 1998 on the ailegations made in the said application and he was, further, directed to see that no breach of peace took place. On December 22, 1978 a report was submitted by the Officer-in-Charge, Ekbalpore Police Station alleging that the said Shrimati Jayshree Sinha was the owner of the premises and Sambhu Nath Pandey was holding a temporary licence in respect of a room at a monthly licence fee of Rs. 50/- (Rupees fifty) only. It was, further, reported that some obnoxious smells were coming out from inside the said room, which was injurious to health.
( 6 ) ON December 31, 1998 the Executive Magistrate, upon perusal of the said police report, drew up a proceeding under section 133 of the Code of Criminal Procedure and directed Sambhu Nath Pandey to file show cause by January 15, 1999.
( 7 ) ON January 21, 1999 the Executive Magistrate made the order drawing up proceeding under section 133 of the Code of Criminal Procedure absolute and the Officer-in-Charge of the local police station was directed to see that the nuisance be removed from the disputed room by the first party, namely, Shrimati Jayshree Sinha, after making a list of articles, which were kept inside the room in presence of a police officer. The case was, thus disposed of Taking advantage of the order passed by the Executive Magistrate, the said Shrimati Jayshree Sinha, in collusion which the Officer-in-Charge of Ekbalpore Police Station, broke open the lock of the tenanted room and removed all the articles stored therein. After removing the goods, Shrimati Jayshr
