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IN THE HIGH COURT AT CALCUTTA
Bhaskar Bhattacharya, J.
Pratima Dutta
v.
Nilima Seal
F.M.A.T. No. 2127 of 1997
Decided On : September 17, 1997
INJUNCTION - TEMPORARY INJUNCTION - ORDER 39 RULES 1 AND 2 OF THE CODE OF CIVIL PROCEDURE - PRINCIPLES FOR GRANT OF TEMPORARY INJUNCTION - DISCRETION OF THE TRIAL COURT - SCOPE OF INTERFERENCE BY APPELLATE COURT - FACT THAT THE APPELLATE COURT COULD HAVE TAKEN A DIFFERENT VIEW DOES NOT JUSTIFY INTERFERENCE WITH THE TRIAL COURT'S EXERCISE OF DISCRETION - UNLESS IT IS ESTABLISHED THAT SUCH DISCRETION HAS BEEN UNREASONABLY OR CAPRICIOUSLY USED.
Fact of the Case:
The appellant, a tenant, filed a suit for declaration that the respondent has no right to obstruct and resist her in the peaceful use and occupation of the suit premises and for permanent injunction restraining the respondent from interfering with her peaceful use and occupation of the suit premises. The appellant also filed an application for temporary injunction under Order 39 Rules 1 and 2 of the Code of Civil Procedure, which was partly granted by the trial court. The appellant filed an appeal against the order of the trial court.
Finding of the Court:
The court held that the appellant had failed to prove a prima facie case that her tenancy included the disputed property. The court also held that the trial court had rightly exercised its discretion in granting temporary injunction only in respect of the property that was part of the tenancy.
Issues: 1. Whether the appellant had proved a prima facie case that her tenancy included the disputed property? 2. Whether the trial court had rightly exercised its discretion in granting temporary injunction only in respect of the property that was part of the tenancy?
Ratio Decidendi: 1. The court held that the appellant had failed to prove a prima facie case that her tenancy included the disputed property based on the following factors: a. The rent receipts granted by the respondent in favor of the appellant did not indicate that the disputed property was a part of the tenancy. b. The letters of attornment issued by the previous owners also did not show that the tenancy consisted of the disputed property. c. The statement made by the appellant in the challan before the Rent Controller for the month of August 1996, just before the institution of the suit, could not bind the respondent. d. The affidavit affirmed by one Shyam Sundar Seal, the son of one of the co-owners of the property, stating that the disputed property was included in the tenancy of the appellant, was ignored by the court as the father of this gentleman, who was actually one of the landlords of the present appellant's husband, did not mention that the disputed property was included in the tenancy of the appellant in the letters of attornment. 2. The court held that the trial court had rightly exercised its discretion in granting temporary injunction only in respect of the property that was part of the tenancy, as the appellant had failed to prove a prima facie case that the disputed property was included in her tenancy.
Final Decision: The appeal was dismissed.
'The judgment of the Court was as follows :
Bhattacharya, J.: This First Misc. Appeal Is at the instance of the plaintiff and is directed against Order No.11 dated May 30, 1997 passed by the learned Trial Judge. 2nd Bench, City Civil Court at Calcutta, in Title Suit No. 2883 of 1996 thereby disposing of an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure filed by the appellant as also the one under Order 39 Rule 4 of the Code of Civil Procedure filed by the respondent. By the aforesaid order the learned Trial Judge has partly granted temporary injunction in favour of the present appellant.
2. Being dissatisfied with the aforesaid order passed by the learned Trial Judge, the plaintiff has preferred the instant First Misc. Appeal.
3, The appellant has filed the aforesaid suit for declaration that the respondent has no right to obstruct and resist the appellant, her men and employees in peaceful men and occupation of the wit premises as a bonafide tenant thereof and also for permanent Injunction restraining the respondent and her men and agent from obstructing the appellant, her men and employees In using and occupying the suit premises and from interfering with the appellant's peaceful use and occupation of the suit premises. It may be mentioned here that the suit property consists of two Schedules, viz. Schedule• A and Schedule-B. Schedule A consists of one shop room and one godown and Schedule-B consists of bath and privy situated in a portion of the said building.
4. The case of the appellant is that she is a tenant in respect of shop room and a god own under the respondent at a monthly rental of Rs 80/- and Rs. 451- respectively and her tenancy Includes the right to use the bath and privy situated In Schedule-B property. On the allegation that the respondent and her men and agents were obstructing the employees of the appellant in using the bath and privy mentioned In 'B' Schedule property, the appellant came up with an application Under Order 39 Rules 1 and 2 of the Code of Civil Procedure then by praying for temporary Injunction restraining the respondent, her men and agents and/or servants from obstructing and restring tile appellant and her man and employees from occupying and enjoying the suit premises and also from Interfering with the appellant’s peaceful use and occupation of the suit premises till the disposal of the suit. Initially the learned Trial Judge granted an ad interim order in terms of the aforesaid prayer. After service of notice, the respondent entered appearance and filed an application under Order 39 Rule 4, of the Code of Civil Procedure for vacating the interim injunction granted by the learned Trial Court. By the order Impugned, the learned Trial Judge has disposed of both the applications, namely, the one filed by the appellant ,under Order 39 Rules 1 and 2 and the other filed by the respondent under Order 39 Rule 4 of the Code of Civil Procedure thereby granting temporary injunction restraining the respondent find her men and agents from disturbing the possession of the appellant In respect of the A' Schedule property only. The prayer of the appellant for Injunction In respect of 'B' Schedule property has, however, been refused.
5. It appears from the application for temporary Injunction filed by the appellant that the appellant annexed with the said application, rent receipts granted by the respond, fits, the rent control challan showing deposit of rent for the month of August 1996, a General Diary lodged before the local Police Station complaining obstruction by the respondent's men and agent in the user of bath and privy and an affidavit affirmed by one Styam Sundar Seal, a son of the previous landlord of the appellant, stating that the husband of the appellant was a tenant and his men and employees regularly need the bath and privy as part of tenancy. In the application under Order 39 Rule 4 of the Code of Civil Procedure filed by the respondents, the respondent annex
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