Back
1983 Supreme(Cal) 126
HIGH COURT OF CALCUTTA
N.G. CHAUDHURI, J.
Kamalendu Chanda - Appellant
Versus
Dilip Kumar Biswas - Respondent
Decided on : May 06, 1983
Lalit Kumar Waiti, Mihir Bhattacharyya, S.P. Roychowdhury.
Mandatory injunction can be granted only to enforce a legal obligation and not merely moral, social or religious obligation.
Headnote:
INJUNCTION - TENANCY - SECTION 151 C. P. CODE - ORDER 39 RULES 1 AND 2 C. P. CODE - TEMPORARY INJUNCTION - MANDATORY INJUNCTION - JURISDICTION - POWER OF COURT - SCOPE OF INJUNCTION - LEGAL OBLIGATION - IRREPARABLE LOSS - UNDERTAKING BY PLAINTIFF - REVISION - INTERFERENCE UNDER SECTION 115 C. P. CODE.
Fact of the Case:
Defendant filed an application for temporary injunction under Order 39 Rules 1 and 2 read with section 151 C. P. Code, for a temporary injunction restraining the plaintiff from interfering with the supply of electricity to the defendant's flat or preventing defendants access to the electric meter and meant for defendant's flat for effecting repairs and/or restoring electricity by erecting partition or otherwise. The plaintiff filed a revisional application in the High Court against the order of the learned munsif dated 22.1.81 and obtained an interim order of injunction staying operation of the order of the learned Munsif impugned till the hearing of the rule on the undertaking given by the plaintiff that tine supply of electricity to the flat of defendant would not be interfered with. The defendant filed an application under section 151 before the learned Munsif in the suit for a temporary mandatory injunction directing the plaintiff to restore status quo by demolishing new construction and unlocking the defendant's door to restore his access to the electric meter and main switch.
Finding of the Court:
The Court held that the learned Munsif exceeded his jurisdiction in passing the impugned order of mandatory injunction and interference under section 115 of the C. P. Code is called for. The revisional application was allowed on contest and the impugned order was set aside.
Issues: 1. Whether the learned Munsif had jurisdiction to grant the defendant's prayer of mandatory injunction for pulling down the construction on the space beneath the stair-case preventing defendant's access thereto? 2. Whether the defendant had a strong case on merits to obtain mandatory injunction?
Ratio Decidendi: 1. A petition under Section 151, C. P. Code did not lie as they are specific provisions in the CP. Code for issue of injunction, namely, Order 39. 2. Mandatory injunction can be granted only to enforce a legal obligation and not merely moral, social or religious obligation. 3. In appropriate circumstances mandatory injunction can be issued to restore state prevailing prior to the institution of the suit. However, in the present case no irreparable loss or inconvenience to the defendant is apprehended. 4. The space where the meter and the main switch are located does not appertain to the defendant's tenancy. Moreover, there is no allegation that the plaintiff ever interfered with the supply of electricity in defendant's premises by manipulating the main switch or meter.
Final Decision: The revisional application was allowed on contest and the impugned order was set aside.
1. THIS revisional application under section 115 read with section 151 of the C. P. Code by the plaintiff petitioner is directed against order dated 22.1.83 passed in Title Suit No. 284 of 1978 in the 2nd Court of Munsif at Alipore, 24-Parganas. The suit aforesaid is for eviction of defendant-opposite party on the termination of his tenancy in respect of substantial portion of the ground floor of premises No. 18/42 Dover Lane, Calcutta. The relationship of landlord and tenant is one of conflicting interests and that has been overlaid in this case by layers of bitterness oozing out of litigations before various courts. To understand the background in which the order impugned was passed the antecedent facts are required to be stated in some details.
2. ON 22.1.81 the defendant-opposite party filed an application in the Court below under Order 39 Rules 1 and 2 read with section 151 C. P. Code, for a temporary injunction restraining the plaintiff his men and agents from interfering with the supply of electricity to the defendant's flat or preventing defendants access to the electric meter and meant for defendant's flat for effecting repairs and/or restoring electricity by erecting partition or otherwise. On the said application the learned Munsif ordered issue of notice to show cause on the plaintiff and ordered maintenance of status quo in respect of the electric meter and main switch meant for the defendant's flat till disposal of the injunction petition. The copy of the petition was sent to the plaintiff by registered post which reached the plaintiff on 29.1.81. The plaintiff petitioner maintains that in connection with Civil Rule no. 354 of 1980 arising from some order passed in the said suit the High Court had stayed all for the proceedings in the suit, still the defendant had filed the aforesaid application for temporary injunction. Be that as it may on 3.2.81 the plaintiff-petitioner moved an application in revision in this Court against the order of the learned munsif dated 22.1.81 and in C. R. No. 256 of 1981 arising from the said petition janah J. while issuing a rule, passed an interim order of injunction staying operation of the order of the learned Munsif impugned till the hearing of the rule on the undertaking given by the plaintiff that tine supply of electricity to the flat of defendant would not be interfered with. It is alleged that on 7.2.81 plaintiff completed the erection of a new door beside the staircase leading to the first floor of the house locked it up and moved an application under section 144 (2) Cr. P. C. against the defendant to drop out from the said proceeding subsequently.
On 13.2.81 defendant entered appearance in C. R. No. 256 of 1981 through an advocate. It is alleged that on 13. 2. 811 plaintiff locked up the defendants' side door and thereafter completed erection oil a plywood partition on the railing of the staircase. On 17.3.81 defendant affirmed his affidavit-in-opposition and therein referred to the aforesaid acts of the plaintiff. C. R. 256 of 1981 was heard on 27.7.81 and Mr. Justice S. M. Guha, J. discharged the impugned order holding that an appeal lay against the impugned order and as such revisional application was incompetent on 30.7.81 plaintiff filed an appeal against the order of the learned munsif dated 22.1.81 being Miscellaneous appeal No. 450 of 1981 in the Court of the District Judge Alipore and the said appeal is still pending. On 19.8.81 defendant filed an application under section 151 before the learned Munsif in the suit for a temporary mandatory injunction directing the plaintiff to restore status quo by demolishing new construction and unlocking the defendant's door to restore his access to the electric meter and main switch. After obtaining adjournments plaintiff filed his objection against the defendant's aforesaid petition on 13.5.82. On 17.5.82 plaintiff filed an application before the learned munsif for staying hearing of the application for mandatory in
