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IN THE HIGH COURT OF CALCUTTA
Ashoke Kumar Dasadhikari, J.
Gopal Chandra Ghosh - Petitioner
Versus
Sri Tinkari Ray - Opposite Party
C.O. No. 909 of 2014
Decided on : 16-10-2015
SECTION 151 OF CPC - TENANT'S POSSESSION - WRONGFUL EVICTION - RESTORATION OF POSSESSION - INJUNCTION - WEST BENGAL PREMISES TENANCY ACT - ARTICLE 300A OF THE CONSTITUTION OF INDIA - ABUSE OF PROCESS OF LAW - INTERIM ORDER STATUS QUO - PADLOCK REMOVAL FROM GATE - FREE INGRESS AND EGRESS TO TENANTED PORTION - EVICTION NOTICE - RENT RECEIPT - ELECTRIC BILLS - SPECIAL OFFICER'S REPORT - INTERIM ORDER EXTENSION - APPEALABILITY - MAINTAINABILITY OF REVISIONAL APPLICATION - JURISDICTION OF COURT - ILLEGAL DISPOSSESSION - MANDATORY INJUNCTION - VIOLATION OF TENANT'S RIGHTS - DUE PROCESS OF LAW - UNAUTHORIZED PURPOSE - ADMINISTRATIVE ORDER - JUDICIAL MAGISTRATE'S EX PARTE ORDER - SHOW-CAUSE NOTICE - EXECUTIVE MAGISTRATE'S POWER - COLLUSION WITH DECREE-HOLDER - GOT UP REPORT - PREMISES TENANCY ACT - RENT ACT - GROSS ABUSE OF PROCESS OF LAW - VIOLATION OF COURT ORDER - RESTORATION OF POSSESSION - STAY OF OPERATION.
Fact of the Case:
The petitioner, a tenant in respect of two rooms on the ground floor of premises No. 21/D, Principal Khudiram Bose Road, Kolkata-700006, filed a suit alleging that the defendant/opposite party, after purchasing the suit property, put a padlock on the front gate of the common passage, which is meant for ingress and egress of the plaintiff. The plaintiff made a prayer that the situation warranting an order of temporary injunction with an ad-interim rule pending disposal of the injunction application restraining the defendant and his men and agents from in any way trying to put padlock or any other resistance on the gate of the common passage which is meant for ingress and egress of the plaintiff from and to his tenanted portion in the manner whatsoever. The learned trial court passed an order of interim injunction against the defendant directing the defendant to maintain status quo in respect of egress and ingress to the suit premises from the main gate till 2nd July, 2012. The petitioner/plaintiff was directed to comply with the provision under Order 39, Rule 3 of the Code of Civil Procedure. The interim order was continued from time to time and remained valid till 12th February, 2014. During the pendency of the suit and continuation of the ad-interim order of injunction passed by the learned Trial Court the plaintiff found that the defendant/opposite party after coming to know about the interim order, soon after the service of notice the defendant put padlock on the gate of the common passage and as a result, the plaintiff has been compelled to stay outside the suit property. Under the aforesaid circumstances the plaintiff made a prayer for passing an order directing the defendant to remove the padlock from the gate of common passage so that the plaintiff may get free ingress and egress to the suit property from the main road. The copy of the application was served by the petitioner upon the defendant/present landlord. The defendant/opposite party submitted his written objection to the application filed by the plaintiff under Section 151 of the Code of Civil Procedure. The learned Court below heard the matter and rejected the application filed on the reason that interim order was passed directing the defendant to maintain status quo in respect of ingress and egress to the suit premises from the main gate. Thereafter on which date the defendant put padlock in the common passage has not been mentioned by the plaintiff in the present application. The plaintiff did not approach the local police station along with instant order of injunction for the aforesaid purpose and ultimately it was held that interim order of injunction as passed by the Court is sufficient for the purpose of which the instant application has been filed under Section 151 of the Code of Civil Procedure by the plaintiff and further held that the common passage has not been mentioned by the plaintiff in the present application, which is devoid of merit. Therefore, the learned Court below is not inclined to allow the same. As such the application was considered and rejected without cost and the interim order of injunction was extended till 12th February, 2014.
Finding of the Court:
1. The order impugned passed by the learned Court below so far it relates to rejection of application under Section 151 of the Code of Civil Procedure is concerned is set aside and the revisional application is allowed. 2. The defendant is directed to restore back possession to the petitioner/tenant and also allow the petitioner to have his free ingress and egress to the suit premises until disposal of the suit or until a decree of eviction is passed and executed by a competent court of law.
Issues: 1. Whether the order impugned passed by the learned Court below so far it relates to rejection of application under Section 151 of the Code of Civil Procedure is lawful and valid? 2. Whether this Court in the peculiar facts and circumstances can pass an order upon the defendant/opposite party to deliver back possession to the tenant removing two padlocks from two suit rooms and also direct the defendant/opposite party to allow the petitioner to have free access through common entrance gate of the premises in question?
Ratio Decidendi: 1. The Court has the jurisdiction to restore back possession in a situation where the tenant/petitioner is unlawfully dispossessed by a noble method adopted by the landlord/opposite party without following due process of law. 2. The action taken by the opposite party/landlord is illegal and contrary to the provisions of Rent Act. He did all mischief which amount to gross abuse of process of law and also violative of the order passed by the learned Civil Court. Therefore, it would be the duty of the Court to restore back possession to render justice and to set right grievous wrong.
Final Decision: The order impugned passed by the learned Court below so far it relates to rejection of application under Section 151 of the Code of Civil Procedure is concerned is set aside and the revisional application is allowed. The defendant is directed to restore back possession to the petitioner/tenant and also allow the petitioner to have his free ingress and egress to the suit premises until disposal of the suit or until a decree of eviction is passed and executed by a competent court of law.
Ashoke Kumar Dasadhikari, J.
Order impugned dated 13th January, 2014 passed by the learned Judge, Second Bench, City Civil Court at Calcutta in Title Suit No.824 of 2012 rejecting the application filed by the petitioner under Section 151 of the Code of Civil Procedure praying for an order directing the defendant/opposite party to remove the padlock or any other resistance from the gate of the common passage so that the petitioner/plaintiff/tenant may get free access to the suit property from main road forthwith, failing which direction may be given to the officer-in-charge, Burtolla police station to remove the same and to give free access to the plaintiff for ingress and egress to the suit property from the main road.
2. The brief facts, which have come out from the pleadings and materials available on record, reveal that the plaintiff is a tenant in respect of two bed rooms, one varandah, common bath and privy along with free ingress and egress through the door on the eastern side of the varandah together with other facilities and amenities attached thereto are on the ground floor at premises No.21/D, Principal Khudiram Bose Road, Calcutta-700006, police station Burtolla. The suit premises was originally belonged to one Ila Dey. The petitioner/plaintiff/tenant was inducted by her in respect of the suit premises at a monthly rent of Rs.80/- payable according to the English calender month. The rate of rent has been increased subsequently time to time and enhanced to Rs.1,000/- per month. The plaintiff paid rent to Ila Dey upto March, 2011 and rent receipts were granted in favour of the plaintiff. Thereafter rent from April to July, 2011 was paid for which no rent receipt was granted. Subsequently, plaintiff came to know that Ila Dey sold away the property to the defendant i.e. the opposite party. The plaintiff could not deposit rent before the Rent Controller. However, rent was paid to the defendant/opposite party who gave assurance to give pucca rent receipt but ultimately did not give the same and always received rent issuing kancha receipt. Subsequently, defendant asked the plaintiff to return the kancha receipts with further assurance that he would grant pucca rent receipts for the current month as well as for the month of May to June, 2011. Plaintiff on good faith handed over the said kancha receipts to the defendant but the defendant did not return kancha receipts nor granted pucca receipts for the past and for current month.
3. Suddenly, the defendant put a padlock on the front gate of the common passage, which is for ingress and egress of the plaintiff and the plaintiff reported the matter to the local police station and also to the local people. Thereafter the defendant/opposite party opened the padlock from the common gate on the common passage. After the incident the petitioner filed the instant suit being title suit No.824 of 2012 narrating all these facts. The plaintiff made a prayer that the situation warranting an order of temporary injunction with an ad interim rule pending disposal of the injunction application restraining the defendant and his men and agents from in any way trying to put padlock or any other resistance on the gate of the common passage which is meant for ingress and egress of the plaintiff from and to his tenanted portion in the manner whatsoever. In the plaint, petitioner/plaintiff stated that cause of action of the instant suit arose on 26th May, 2012. After filing the suit the plaintiff moved an application under Order 39 rules 1 and 2 and prayed for an ex parte order of injunction and the learned trial court on hearing the petitioner being satisfied about the plaintiff’s status as a tenant under the previous landlady Ila Dey and thereafter under the defendant Tinkari Roy, who purchased the suit property and being satisfied that the present purchaser being the opposite party is trying to put padlock on the main gate of the entrance of the plaintiff found that the plaintiff has huge
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