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1998 Supreme(Cal) 269
High Court Of Calcutta
S. B. SINHA, DIBYENDU BHUSAN DUTTA
SUSHIL KUMAR JHUNJHUNWALA - Appellant
Versus
S.M.CHOWDHURY - Respondent
M. A. T. 1845 Of 1997
Decided On : 07/01/1998
A.K.JHUNJHUNVALA, S.N.PYNE, SAMIT TALUKDAR, Saptangshu Basu, TRIDIB SARKAR
A mandatory injunction can be granted in rare and exceptional cases, where the applicant demonstrates a strong prima facie case of possession, considering the balance of convenience and the conduct of the parties.
Headnote:
Mandatory Injunction - Tenancy Dispute - Possession of Premises - Order 39 Rules 1 and 2 of the Code of Civil Procedure - Interpretation and Application
Fact of the Case:
A dispute arose over the possession of a room belonging to Respondent No. 2, which was occupied by Appellant's father as a tenant. Appellant claimed tenancy rights based on a declaration made by his father and alleged payment of rent. Respondent No. 1 claimed tenancy through Anita Bubna, who had obtained possession and surrendered her tenancy to Respondent No. 2. The trial court granted mandatory injunction in favor of Respondent No. 1.
Finding of the Court:
The court found that the Appellant failed to establish his right to possess the room as he was not a member of Respondent No. 2 and had not been transferred the membership unit after his father's death. The court accepted the Respondent's case that Respondent No. 1 was in rightful possession and had obtained tenancy through Anita Bubna.
Issues: 1. Whether the Appellant had established his right to possess the room as a tenant. 2. Whether the Respondent No. 1 was in rightful possession of the room. 3. Whether the trial court erred in granting mandatory injunction in favor of Respondent No. 1.
Ratio Decidendi: 1. The court held that a mandatory injunction can be granted in rare and exceptional cases, and the burden is on the applicant to demonstrate a strong prima facie case. 2. The court found that the Respondent No. 1 had made out a strong prima facie case of possession, supported by documentary evidence and correspondence. 3. The court considered the balance of convenience and noted that Respondent No. 1 was carrying on a stock broking business from the premises, while the Appellant had not shown any such business activity. 4. The court also considered the fact that the Appellant had not appealed against the order allowing Respondent No. 1's application under Order 39 Rule 4 of the Code of Civil Procedure, which effectively meant that the Appellant had accepted the order and could not now claim lawful title or occupation of the premises.
Final Decision: The court dismissed the appeal, upheld the trial court's order granting mandatory injunction in favor of Respondent No. 1, and directed that the suit be disposed of within 6 months.
( 1 ) THIS appeal is directed against a judgment and order dated 4. 6. 97 passed by Sri D. K. Roy, learned Judge, 2nd Bench, City Civil Court at Calcutta in Title Suit No. 513 of 1997 whereby and whereunder he allowed an application filed by the respondent No. 1 herein under Order 39 rule 4 of the Code of Civil Procedure as also allowed an application for mandatory injunction filed in his behalf.
( 2 ) THE basic fact of the matter is not much in dispute.
( 3 ) ONE Chiranjilal Jhunjhunwala, father of the appellant was a member of Calcutta Stock Exchange Association Limited. He, in that capacity, was a tenant in respect of the premises belonging to respondent No. 2 herein being room No. 9a. He allegedly made a declaration in favour of the appellant on 10. 2. 93 to the effect that after his death, the membership card and the said tenancy with connected benefit be transferred to the appellant, who was his eldest son. Admittedly, the said Chiranjilal Jhunjhunwala also issued a letter to the respondent No. 2 on 29. 3. 94 expressing his desire to transfer tenancy in respect of the said room in favour of Sm. Anita Bubna, which was transmitted to respondent No. 2. It is accepted that the respondent No. 2 entered into an agreement with the aforementioned Anita Bubna and had also accepted rent from her from April 1995 onwards. However, it is seriously disputed although it is the contention of the appellant that the respondent No. 2 also accepted rent from the appellant and thus accepted him as a tenant.
( 4 ) ON 2. 9. 94, the aforementioned Chiranjilal Jhunjhunwala died, whereas the aforementioned agreement between respondent No. 2 and Sm. Anita Bubna was entered into on 9. 4. 94. It is alleged that Anita Bubna upon obtaining possession, surrendered her tenancy, whereas it is the case of the appellant that he had taken possession of the said premises and had paid rent upto March 1995, it is, however, the case of the respondents that rent was in fact paid by the aforementioned Anita Bubna, but rent receipt had been granted in the name of the said Chiranjilal Jhunjhunwala till March 1995. As evidently a dispute arose with regard to possession of the said premises, the appellant filed a suit against the said Sm. Anita Bubna and the respondent No. 2 which was marked as Title Suit No. 148 of 1996. On an application for injunction filed by the appellant, an order of status quo was passed and as despite service of notice, the defendants did not appear, the said interim order was made absolute. From the records it further appears that Anita Bubna entered into negotiation with respondent No. 1 for transfer of the tenancy and made a request in that regard whereafter pursuant to or in furtherance of the decision of the appropriate committee of respondent No. 2, a tenancy was granted in favour of the respondent No. 1 with effect from March 1, 1997. However, it appears that in view of the decision of the committee, Anita Bubna delivered possession of the said premises to respondent No. 1. There had been a breach of peace as regards possession of the said premises resulting in initiation of 2 proceedings under section 144 (2) of the Code of Criminal Procedure. The appellant had alleged that the respondents broke open the padlock and put a padlock and also interfered with his possession. On the other hand, case of the respondent No. 1 is that after obtaining possession, he had put padlock and kept some share scripts and other documents in a brief case, and it was the appellant who had broken the said padlock and put his own padlock. Thereafter, the instant suit was filed against the respondents by the appellant. The appellant filed an application for injunction, and the learned trial Judge granted an ad interim injunction of status quo. It appears that upon receipt of notice, an application for mandatory injunction was filed by the respondent No. 1 on 15. 3. 97, and thereafter also filed an application under Order 39 rule 4 of the C
