Susheel Dixit v. M/S Barefoot Resorts And Leisures Ltd. And ANR

IN THE HIGH COURT AT CALCUTTA

CIVIL REVISION JURISDICTION [CIRCUIT BENCH AT PORT BLAIR ] ...

CO/30/2022 Shri Susheel Dixit ... Petitioner Vs.

M/S Barefoot Resorts & Leisures Ltd.

and another ... Respondents Mr. Gopala Binnu Kumar ...for the Petitioner Mrs. Anjili Nag ...for the Respondents December 21, 2022 [AKB] Item No.3 Order dated 06.09.2022 passed by the learned Civil Judge Senior Division, Port Blair, South Andaman District recording the order of rejection of the application dated 10.08.2022 has been challenged in this revisional application under Article 227 of the Constitution. The petitioner/plaintiff purchase the suit property in the year and that property was given to respondent/defendant No. 1 by a Registered Lease Deed dated 01.09.2004 for the purpose of running a resort thereon for a period of 10 years subject to renewal. The period of lease expired on 30.08.2014 and thereafter lease was not renewed and respondent/ defendant No.1 became tenant by sufferance. Petitioner/plaintiff filed a suit for eviction and recovery of possession against the respondent/defendant No.1 along with the application under order 39 Rule 1 and 2 Code of Civil Procedure for restraining the respondent/defendant No.1 from carrying

any commercial activities in the suit property. The said application under Order 39 Rule 1 and 2 Code of Civil Procedure was refused by the learned Civil Judge Senior Division in terms of right of the tenant by sufference. Thereafter petitioner/ plaintiff files an application under Section 151 if Code of Civil Procedure with a view to restrain the respondent/defendant No.1 from carrying a new construction by raising RCC pillars on the land in question.

Learned Civil Judge, Senior Division again refused that application under Section 151 of Code of Civil Procedure on the ground that the respondent/defendant No. 1 was in possession of the property and he has every right to possess the same as per his own choice but, in lawful manner. Learned Civil Judge Senior Division also recorded the reasons that the application under Section 151 Code of Civil Procedure did not disclose new cause of action and without local inspection by the commissioner, photographs could not establish a prima facie case of new construction. Accordingly, learned Civil Judge, Senior Division, Port Blair, rejected the application by the impugned order.

Mr.

Gopala Binnu Kumar, learned advocate appearing on behalf the petitioner/plaintiff has assailed the impugned order by submitting that the learned Judge refused the application under Section 151 Code of Civil Procedure only on the ground of earlier rejection of two

application under Order 39 Rule 1 and 2 Code of Civil Procedure as well as petition under Section 151 Code of Civil Procedure. Mr. Gopala Binnu Kumar has further submitted that the respondent/defendant No.1 has became tenant at sufferance after the expiry of the period of lease under Section 111 of the Transfer of Property Act and therefore, the respondent/defendant No. 1 has no right to make any new construction over the land in question. Accordingly, Mr. Gopala Binnu Kumar has sought for an order for setting aside the order dated 06.09.2022 passed by the learned Civil Judge Senior Division, Port Blair.

Per Contra, Mrs. Anjili Nag, learned advocate appearing on behalf of the respondent/ defendant No. 1 has raised a point of maintainability of the application under Article 227 of the Constitution of India. Mrs. Nag has contended that the application under Section 151 of Code of Civil Procedure was filed with a prayer for injunction restraining the respondent/defendant No. 1 from carrying new construction. Mrs. Nag has further contended that albeit the prayer was made under caption of Section 151 of Code of Civil Procedure but, it was an application under Order 39 Rule 1 and 2 of the Code of Civil Procedure. In that case, according to Mrs. Nag, the impugned order is not revisable rather appealable under 43, Rule 1 (r) of the Code of Civil Procedure. In support of her contention she relied on a case of Virudhunagar Hindu Nadargal Dharma

Paribalana Sabai & others vs. Tuticorin Educational Society and others reported in 2019 (9) SCC 538 wherein the Hon'ble Apex Court took a view that the provision of Article 227 of the Constitution of India cannot be applicable in the cases where alternative remedy for the appeal is available before the Civil Court in terms of the order 43, Rule 1 (r) of the Code of Civil Procedure.

Mrs. Nag also relied on a case of Sumanta Niyogi and another vs. Sadhamasram Seva Sarmsad and other reported in 2009 (74) AIC 946 wherein Single Bench of Hon'ble High Court at Calcutta also opined that when an order impugned was appealable the jurisdiction under Article 227 of the Constitution of India cannot be exercised. Hon'ble Court came across the prayer for injunction within the meaning of Order 39 of the Code of Civil Procedure. Mrs. Nag further relied on a case of Gauri Kar vs Debabrata Muniyan and others reported in 2020 (1) ICC 606 wherein Single Bench of Hon'ble High Court at Calcutta dealt with an application under Article 227 of the Constitution of India against an order under Section 151 of the Code of Civil Procedure with a prayer for injunction within the meaning of Order 39 Rule 1 and 2 of the Code of Civil Procedure. Hon'ble Court dismissed the revisional application being not maintainable relying on the ratio of a case of Ravi Maharia vs. Reliance Petroleum Limited and Others reported in 2000 (1) CHN 439.

Keeping in mind the ratio of Virudhunagar Hindu Nadargal Dharma Paribalana Sabai (supra), Gauri Kar (supra) and Sumanta Niyogi (supra) I find that the order on an application under Section 151 of the Code of Civil Procedure with a prayer for injunction is not at all revisable order rather appealable in terms of Order 43 Rule 1 (r) of the Code of Civil Procedure.

Here in this revisional application petitioner/plaintiff challenged the order on an application under Section 151 of the Code of Civil Procedure with a prayer for restraining the respondent/defendant No. 1 for the alleged construction. Meaning thereby, petitioner/ plaintiff actually prayed for injunction restraining the respondent/defendant No. 1 from raising any construction squarely within the meaning of Order 39 Rule 1 and 2 of the Code of Civil Procedure. If that be the position, the impugned order is not revisable but appealable in terms of Order 43 Rule 1 (r) of Code of Civil Procedure.

From that point of view, I am unable to allow instant revision application. Accordingly the instant revision application being CO/30/2022 stands dismissed with a liberty to challenge in the right way.

Let a copy of this order be communicated to the learned Civil Judge Senior Division, Port Blair, for information.

(Bibhas Ranjan De, J.)