Harprith Kaur v. P.Punithavathi
IN THE HIGH COURT AT CALCUTTA
[ CIRCUIT BENCH AT PORT BLAIR ] ...
CO/4/2024 Ms. Harprith Kaur ... Petitioner/Plaintiff Vs.
Smti. P. Punithavathi ... Opposite Party/Defendant Mr. K.M.B. Jayapal ... for the Petitioner/Plaintiff Mrs. Anjili Nag ...for the Opposite Party/Defendant February 07, 2024 [M.A.Mobin] Item No.8 This Civil order is at the instance of the Plaintiff and is directed against the judgement and order dated November 28, 2023 passed by the learned District Judge in Misc. Appeal No. 16 of 2023 affirming the Order No.3 dated 13th October, 2023 passed by the learned Civil Judge (Senior Division), Port Blair in Other Suit No. 61 of 2023.
The petitioner filed a suit for declaration of her tenancy right and for permanent injunction restraining the Opposite Party herein from interfering with her possession over the suit premises.
Petitioner claims to be a tenant in respect of a room which has been described in the schedule of the plaint for running a business there from. Alleging that the Opposite Party is threatening to evict her from the suit property forcibly, she filed the instant Suit. In connection with the said Suit the Petitioner filed an application
under Order 39 Rule 1 & 2 of the Code of Civil Procedure praying for an order of temporary injunction restraining Opposite Party from disturbing peaceful enjoyment of the suit premises as well as the business of the Petitioner till the disposal of the suit. The Opposite Party contested the application for temporary injunction by filing a written objection thereto. In the said written objection it has been specifically stated that the lease deed expired on July 20, 2023 and sometimes in the month of August, 2023 the Petitioner agreed to vacate the suit property. It has been further stated in the said written objection that the Petitioner submitted a letter on 02nd September, 2023 stating that she will vacate the suit premises on 08th September, 2023. It is the specific case of the Opposite Party that on 04th September, 2023 the Petitioner voluntarily vacated the premises and the Opposite Party closed the same by fixing planks on the door of the suit premises. The learned Trial Judge rejected the application for temporary injunction by an Order No.3 dated 13th October, 2023.
The Petitioner carried the matter in appeal and the First Appellate Court by a judgment and order dated November 28, 2023 dismissed the said Misc. Appeal. Mr. Jayapal, learned Advocate appearing for the Petitioner submits that the Petitioner is in possession of
the suit property and the machinery and apparatus belonging to the Petitioner are still inside the suit property.
He further submits that alleged undertaking to vacate dated 02nd September, 2023 was obtained under threat and coercion and, therefore, such undertaking cannot be said to be a valid undertaking in the eye of law.
He further submits that since the Petitioner was inducted into the suit property as a tenant and the tenancy of the Petitioner has not been terminated in accordance with the provisions of the relevant statute and also that no decree for eviction has been passed against the Petitioner herein, the Petitioner is still a tenant in respect of the suit premises and therefore she should be allowed to enjoy the tenanted premises. Per contra Mrs. Nag, learned Advocate representing the Opposite Party submits that the Petitioner has vacated the suit property in terms of the undertaking signed on 02nd September, 2023. She submits that the Opposite Party is in possession of the property in question. She further submits that both the Courts below have concurrently held that the petitioner is not in possession of the suit property and therefore this Court in exercise of jurisdiction under Article 227 of the Constitution of India should not interfere with such findings of the learned Courts below. She further submits
that the period of lease has expired in July, 2023 and therefore the Petitioner cannot claim any right to continue as a tenant in respect of the suit premises. Heard learned Advocates for the parties and perused the materials placed.
The learned Trial Judge recorded that the Plaintiff has not filed any document to show that she has paid rent to the Defendant. The learned Trial Judge took note of the undertaking given by the Petitioner to vacate the premises on 04th September, 2023 and observed that it is not the case of the Plaintiff that she has given undertaking under pressure of the Defendant or anybody else.
The learned Trial Judge held that Petitioner/Plaintiff has suppressed the fact of such undertaking in her pleadings. On such grounds the learned Trial Judge rejected application for injunction.
The learned Judge of the Court of Appeal below after taking note of the undertaking dated 02nd September, 2023 and also the argument of the learned Advocate of the Plaintiff/Petitioner herein before the First Appellate Court that due to pressure or threatening from the side of the Defendant she was bound to vacate the suit premises observed that the Petitioner could not produce any prima facie document in support of his
contention that she has to vacate on account of threats being given out to her.
It is not in dispute that the Petitioner was inducted as a tenant in the suit premises as per the lease deed executed by and between the parties. Admittedly the period of the lease deed has already expired. The document executed by the Petitioner on 02.09.023 is an undertaking to vacate the suit premises on a given date as mentioned in the said document.
The Petitioner claims that she was bound to vacate due to pressure or threatening from the side of the Opposite Party. The learned Judges of both the Courts below concurrently found that the Petitioner could not produce any document in support of pressure/threatening from the side of the Opposite Party. This Court is, therefore, of the view that the Petitioner has failed to make out a prima facie case and the balance of convenience and inconvenience is also against the Petitioner. Petitioner also cannot be said to suffer irreparable loss and injury in the facts of this case. This Court, therefore, holds that the learned Judge of the First Appellate Court rightly held that Plaintiff/Petitioner herein is not entitled to any protection in respect of the suit premises.
The issue whether the Petitioner vacated the suit property pursuant to the undertaking dated 02nd
September, 2023 or that he was forcibly evicted from the suit premises as alleged by the Petitioner herein cannot be decided at this stage as adjudication of such issue requires a full-fledged trial on evidence.
The judgments and orders impugned in this Civil Order do not suffer from perversity.
In view thereof, this Court is not inclined to interfere with the judgments and orders passed by the learned Courts below. However, taking note of the fact that the suit for declaration of tenancy right is pending and the Opposite Party claims to be in possession of the suit property, this Court is of the considered view that the suit property should be preserved till the disposal of the suit.
At this stage, it has been submitted by Mrs. Nag, learned Advocate for the Opposite Party that the written statement along with counter claim has already been filed and 10th April, 2024 has been fixed for filing of written statement to the counter claim.
Considering the nature of dispute between the parties, this Court feels that a direction should be passed upon the learned Court below to dispose of the suit expeditiously.
The Opposite Party herein shall be restrained from transferring, alienating and/or changing the nature and character of the property and/or creating third party
interest in the property described in the schedule of the plaint till the end of December, 2024 or until further orders whichever is earlier.
The learned Civil Judge (Senior Division), Port Blair is requested to dispose of the Other Suit No. 61 of 2023 as expeditiously as possible, but preferably by the end of December, 2024 without granting any unnecessary adjournment to either of the parties.
It will be open to the Petitioner herein to pray for appropriate interim order before the learned Court below, if the occasion so arises.
With the above observations and directions CO 4 of 2024 stands disposed of.
It is, however, made clear that the findings recorded herein above are only to support the conclusion in this order and the same shall not prejudice the parties at the time of final hearing of the suit.
Parties to act on a server copy of this order duly collected from the official website of the Hon'ble High Court at Calcutta.
Urgent Photostat certified copy of this order, if applied for, be supplied to the parties, subject to compliance with all requisite formalities.
(Hiranmay Bhattacharyya, J.)