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2019 Supreme(Cal) 200
IN THE HIGH COURT OF CALCUTTA
BIBEK CHAUDHURI, J.
AMITA SARBADHIKARY - Appellant
Versus
BANDANA SHOME & ORS - Respondent
Civil Order No. 359 of 2017
Decided on : 17-01-2019
Advocate Appeared:
Soumya Roy, Adv., Shiba Prasad Mukherjee, Adv., Debleena Mukherjee, Adv.
The key legal principle established in the judgment is that the relief of interlocutory mandatory injunctions are granted to preserve or restore the status quo of the last known contested status which preceded the pending controversy until the final hearing.
Headnote:
Mandatory Injunction - Recovery of Possession - Section 6 of the Specific Relief Act - [Section 6 of the Specific Relief Act] - The court discussed the possession of the opposite parties over the suit premises and the legality of their dispossession. The key legal provisions discussed were related to the conditions precedent to invoke jurisdiction of Section 6 and the principles of granting temporary mandatory injunction in a suit for recovery of possession under Section 6 of the Specific Relief Act.
Fact of the Case:
The suit involved a dispute over the possession of a premises where an X-Ray Clinic was being run. The plaintiffs, legal heirs of the original tenant, filed a suit under Section 6 of the Specific Relief Act for recovery of possession after alleging forceful and illegal dispossession of the premises by the defendant. The defendant contested the allegations and claimed exclusive possession of the premises since 2010.
Finding of the Court:
The court found that the opposite parties were in lawful possession of the suit room as tenants and permitted the running of the X-Ray Clinic by the third opposite party. The dispossession of the opposite parties was deemed illegal and without due process of law. The court held that the impugned order of mandatory injunction was passed within the jurisdiction of the trial judge.
Issues: The main issue was whether the court was justified in passing the order of mandatory injunction in the suit for recovery of possession under Section 6 of the Specific Relief Act.
Ratio Decidendi: The court applied the principles of granting temporary mandatory injunction in a suit for recovery of possession under Section 6 of the Specific Relief Act. It emphasized the need to prevent irreparable or serious injury, the balance of convenience, and the strength of the plaintiff's case for trial.
Final Decision: The instant revision was rejected on contest without any cost.
BIBEK CHAUDHURI, J.
1. An order of ad interim mandatory injunction directing the defendant/petitioner to restore possession of the suit premises to the plaintiffs/opposite parties passed by the learned Judge, 6th Bench of the City Civil Court, Calcutta in Title Suit No.34925 of 2014 on 17th January, 2017 is the subject matter of challenge in the instant revision.
2. For adjudication of the dispute raised in the instant revision, following facts are required to be recorded:-
3. One Dr. Dulal Chandra Shome, since deceased was a tenant in respect of the demised premises situated on the first floor of premises No.49, Lenin Sarani within P.S New Market where he used to run a business under the name and style of 'Shome's X-Ray Clinic'. On or about 13th June, 1985, the said Dr. Dulal Chandra Shome entered into an agreement with one Sudhir Kumar Nandi to continue with the aforesaid business of X-Ray Clinic in the said premises. After the death of Sudhir Kumar Nandi, his son Gobinda Nandi, plaintiff/opposite party No.3 has been running the said business. On the death of Dr. Dulal Chandra Shome, tenancy in respect of the suit room was devolved upon plaintiff/opposite parties No.1 and 2 as his legal heirs and successors. They also permitted plaintiff/opposite party No.3 to run the said business. On being permitted as such, the said Gobinda Nandi obtained licenses from the statutory authorities required for running the business of X-Ray Clinic. It is alleged by the opposite parties that on 9th May, 2014 opposite party No.3 was forcefully and illegally dispossessed from the suit room where he had been running the business of X-Ray Clinic for more than 50 years. He informed the matter to local P.S in writing on 13th May, 2014. It is also alleged that there are machinery in the suit room worth more than Rs.10,00,000/- . As the opposite party No.3 who was running X-Ray Clinic in the suit room with the permission of the lawful tenants, i.e. opposite parties No.1 and 2 and he was dispossessed otherwise by due process of law, they filed a suit under Section 6 of the Specific Relief Act against defendant/petitioner for recovery of possession of the suit room.
4. In the said suit, the petitioners have filed an application under Order 39 Rule 1 and 2 of the CPC read with Section 151 of the CPC praying for an order of mandatory injunction directing the defendant/petitioner to restore possession of the suit room forthwith.
5. The defendant/opposite party filed a written objection against the aforesaid application under Order 39 Rule 1 and 2 of the CPC wherein she denied entire allegations made out against her by the plaintiffs/opposite parties. However, in the written objection the petitioner admitted that her husband B.R. Sarbadhikary, since deceased had inducted Dr. Dulal Chandra Shome as a tenant in respect of the suit premises where he started a business of running X-Ray Clinic. After the death of Dr. Shome, license for running the said business under Clinical Establishment Act, 1950 and other licenses were obtained by the widow and daughter of the said Dr. Shome. They used to run the business with the help of one or more office staff, one of whom was Sudhir Kumar Nandi, since deceased, father of opposite party No.3. After the death of Sudhir Kumar Nandi, the opposite parties No.1 and 2 being house wives and having no experience of running business of medical investigations, had to stop the business completely sometimes in 2010. It is specifically stated by the petitioner in the written objection to the application under Order 39 Rule 1 and 2 of the CPC that since 2010 the suit premises is under exclusive possession of the petitioner. The opposite party No.3 being backed by opposite parties No.1 and 2 tried to take over possession of the suit room sometime in the month of January 2012 which was successfully resisted by the petitioner. It is further stated by the petitioner that during first week of May, 2014, the opposite party No.3 without
