CALCUTTA HIGH COURT
Ashoke Kumar Dasadhikari, J.
Mohammed Alam —Petitioner
versus
Jamshed Alam —Opp.Party
C.O. No.1502 of 2013
Decided on 15.7.2015

IMPORTANT POINT
No prejudice should be suffered by plaintiff/petitioner in case interim order not granted in his favour, no urgency since already 22 years passed without interim order.

Headnote:Civil Procedure Code, 1908 — Order XXXIX, Rules 1 & 2 read with Section 151 — Transfer of Property Act, 1882 — Section 54 — Specific Relief Act, 1963 — Section 14(3)(c) & 34 — Temporary injunction — Basic requirement for granting interim order of injunction or temporary order of injunction depends on — Whether plaintiff made out prima facie case in his favour — Whether balance of convenience or inconvenience in favour of plaintiff — Whether plaintiff would suffer any irreparable loss or prejudice in case no interim order granted and urgency. [Para 49]

       (ii) Civil Procedure Code, 1908 — Order XXXIX, Rules 1 & 2 read with Section 151 — Transfer of Property Act, 1882 — Section 54 — Specific Relief Act, 1963 — Section 14(3)(c) & 34 — Temporary Injunction — While considering prima facie case if made out by plaintiff/petitioner one has to look into facts of case and of course to take note of arguability of issues raised — But definitely Court at first blush required to look at what case plaintiff made out in plaint and petition. [Para 49]

       (iii) Civil Procedure Code, 1908 — Order XXXIX, Rules 1 & 2 read with Section 151 — Transfer of Property Act, 1882 — Section 54 — Specific Relief Act, 1963 — Section 14(3)(c) & 34 — Temporary Injunction — Allegations of violation of terms and conditions of agreement entered into 1st October, 1993 — Construction period fixed for two years from date of agreement — Plaintiff/petitioner allowed ten more years to enjoy benefit of rents to be realised by him from tenants of multi-storied building to be constructed — Plaintiff in plaint could not disclose material fact or could give any explanation what steps he taken during eleven years period for obtaining sanctioned plan — Only allegation made that he made request to Chairman, Borough Committee but that refused — HELD — That not at all sufficient explanation on part of plaintiff who himself agreed to construct premises within two years — Plaintiff filed suit in 2004 after eleven years of agreement with allegation that he in possession but fact remains that possession remaining with defendants/opposite parties — It revealed that defendants/opposite parties already obtained sanctioned plan and they already started construction — As per Special Officer report defendants/opposite parties in possession over suit property — Therefore claim and contention of plaintiff that he in possession not correct — Defendants/opposite parties who admittedly in possession and started construction upon obtaining sanctioned plan being owners under no circumstances could be prevented or restrained to carry out with their construction work. [Para 49]

       (iv) Civil Procedure Code, 1908 — Order XXXIX, Rules 1 & 2 read with Section 151 — Transfer of Property Act, 1882 — Section 54 — Specific Relief Act, 1963 — Section 14(3)(c) & 34 — Temporary Injunction — Both Courts below found that claim and contention of petitioner to effect that he realizing rent not correct and nothing on record to show that any rent ever realised — HELD — Statement made by plaintiff/petitioner in this regard not correct. [Para 50]

       (v) Transfer of Property Act, 1882 — Section 54 — Specific Relief Act, 1963 — Section 14(3)(c) & 34 — Civil Procedure Code, 1908 — Order XXXIX, Rules 1 & 2 read with Section 151 —Temporary Injunction — Admitted position that plaintiff/petitioner could not get his plan sanctioned within two years within which construction to be completed — Till today no sanctioned plan — Petitioner not in possession of suit property — Plaintiff/petitioner filed instant suit in 2009 after about eleven years — Plaintiff/petitioner failed to enjoy interim order for about last twenty-two years — Plaintiff/petitioner could not substantiate his averments made in plaint or petition in his favour before both courts below — HELD — No doubt in mind of this Court that plaintiff/petitioner failed to make out prima facie case in his favour — So far balance of convenience and inconvenience concerned — Defendants/opposite parties in progress of development work after obtaining sanctioned plan and plaintiff practically did nothing in regard to development — Balance of convenience and inconvenience in favour of defendants/opposite parties — However plaintiff/petitioner who not in possession instituted instant suit for declaration and consequential injunction — But he did not make any prayer for specific performance or damages. [Para 50]

       Result: Revision dismissed