V. Ravi v. Miss K Neha
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] PRESENT: THE HON'BLE JUSTICE MADHURESH PRASAD CO/51/2024 V. RAVI ... REVISIONIST VS.
Ms. K. NEHA ... OPPOSITE PARTY For the revisionist : Mr. KMB Jayapal For the opposite party : Mr. R. N. Prasad Mr. Sarela Ratnam Heard on : January 10, 2025 Judgment on : January 16, 2025 MADHURESH PRASAD, J.
1.
The present revisionist was the defendant in the suit filed by the present opposite party claiming to be a tenant in the suit premise comprising of shop room/s. The plaintiff in the suit sought a decree for protection against illegal eviction by the defendant with respect to the shop room as well as a decree of permanent injunction restraining the defendant from disturbing the plaintiff's possession over the suit property.
2.
Having regard to the pleadings in the plaint, the learned counsel for the revisionist submits that the fact of plaintiff being dispossessed/evicted, prior to institution of the suit is an undeniable situation. It is submitted that there was thus no occasion for the Trial Court to grant the relief of interlocutory mandatory injunction for restoring the possession of the plaintiff. He submits that such relief is to be granted only when the plaintiff has a strong case of a standard higher than a prima facie case, normally required for a prohibitory injunction. 3.
The other two requirements for grant of interim orders being to prevent irreparable injury and considering the balance of convenience and inconvenience are also required to be seen. In the present case, it is an admitted position that the plaintiff was evicted/dispossessed prior to institution of suit. Therefore no relief of interlocutory mandatory injunction could have been granted to the plaintiff. The learned counsel has placed reliance on celebrated decision of the Apex Court in the case of Dorab Cawasji Warden vs. Coomi Sorab Warden and others reported in (1990) 2 SCC 117, and a more recent decision of the Apex Court in the case of Samir Narain Bhojwani vs. Aurora Properties and Investments and another reported in (2018) 17 SCC 203. 4.
Learned counsel for the opposite party on the other hand submits that the present revisional application is barred by principle of res judicata as contained in the Section 11 of the Code of Civil Procedure. Earlier revisional application bearing CO/46/2024, for the same relief
filed by the present revisionist was dismissed by this Court and therefore the second revisional application would not be maintainable. He submits that as a consequence of the forcible eviction of the plaintiff, the plaintiff was having to suffer immensely on account of loss sustained in the business which was being carried on in the suit premises. There is huge financial stake of the plaintiff in the suit which is likely to be jeopardized and therefore the Trail Court has rightly granted the relief of interlocutory mandatory injunction.
5.
Considering the rival submissions, this Court proceeded to peruse the pleading of the plaintiff before the trial court. A bare reading of the paragraph 23 to paragraph 29 and paragraph 32 of the plaint reveals that the plaintiff alleged that on the midnight of 25.10.2024 the defendant with his men and agents broke open the lock of the shop room and threw away the sewing machine, table, fabric and dress materials lying in the shop room for business purpose. She came to know about this fact on 26.10.2024, when she lodged an FIR at Aberdeen Police Station, in this regard. This Court is informed that FIR was numbered as Aberdeen PS Case No. 180 of 2024, for the offences under Section 324/4 and 331/14 of the Bharatiya Nyaya Sanhita, 2023 (in short BNS, 2023). The plaintiff on going to the suit premises found that a new lock was put on the shop room. She further alleged that when she went to the shop room, she was not allowed to open the lock. On 26.10.2024 itself it is alleged that the defendant and his family member assaulted the plaintiff
which led to lodging of a second FIR bearing Aberdeen PS Case No. 0181 of 2024 which was lodged on 27.10.2024 at 05.30 PM under section 115(2), 3(5), 351(3), 352 and 374 of the BNS, 2023. 6.
The fact of the plaintiff illegal dispossession from the suit premises is thus explicit from bare reading of the plaint. In paragraph 32 of the plaint also the plaintiff has stated that defendant had forcibly broken open the lock of the shop room and after throwing out articles from the shop had put his padlock on the shop room premises on 25.10.2024 itself. This Court therefore finds that from the averments made in the plaint, it is obvious that the plaintiff was alleging her forcible dispossession from the suit premises, even before filling of the suit. 7.
The records further reveals that the plaintiff/opposite party had thus filed an application under Order 39 Rule 1 & 2 of the Code of Civil Procedure on 28.10.2024 seeking an ad interim order directing the defendant not to create any third party interest in the suit premises comprising of the shop room, and to pass an order of injunction restraining the defendant from creating third party interest till the disposal of the suit. This application under Order 39 Rule 1 & 2 of the Code, however, was not pressed; and on 29.10.2024 the application was filed for grant of temporary mandatory injunction, which has been allowed by the trial court on 30.10.2024.
8.
The petitioner assailed the order granting temporary mandatory injunction by filing a revision application before this Court, which was
numbered as CO/46/2024 and dismissed by a Coordinate Bench on 12.11.2024 as the revision was filed in respect of an appealable order. The present revisionist was thus granted liberty to prefer an appeal against the order dated 30.10.2024 whereby and whereunder the Trial Court granted the relief of temporary mandatory injunction to the opposite party.
9.
The order dated 30.10.2024 has thus been assailed by filing an appeal before the learned District Judge in Misc. Appeal No. 24 of 2024. The learned District Judge vide order dated 19.11.2024 has dismissed the appeal filed by the present revisionist.
10.
Thus the petitioner is before this Court in the present revision application assailing the orders passed in Misc. Appeal No. 24 of 2024 and Title Suit No. 82 of 2024.
11.
From a plain reading of the plaint filed by the opposite party it is the admitted case of the plaintiff that prior to filing of the suit she had been forcibly dispossessed of her tenancy rights by the defendant/revisionist (landlord). The plaintiff had thus sought interim prohibitory injunction by filing an application which was not pressed. These facts are not in dispute.
12.
Learned counsel for the defendant, however submits that since the revision earlier filed by the present revisionist bearing CO/46/2024 has been dismissed, the present second revision application is barred by res judicata.
13.
Such submission of the respondent is unacceptable. The earlier revision was filed assailing the order of temporary mandatory injunction dated 30.10.2024, which was an appellable order. The Coordinate Bench of this Court had thus dismissed the same allowing the present revisionist liberty to assail the order passed by the trial court in appeal. 14.
Such liberty was granted to the revisionist by the order dated 12.11.2024 passed in the earlier revision proceeding, wherein the plaintiff/opposite party was represented and appearing. The order has not been challenged by the plaintiff/opposite party. The liberty allowed to the present revisionist in the order dated 12.11.2024 passed in CO/46/2024 therefore has attained finality, and is binding inter partes. 15.
After dismissal of the earlier revision against the trail court's order the present revisionist, availing the liberty granted by the order dated 12.11.2024 passed in CO/46/2024 has assailed the order of temporary mandatory injunction by filing an appeal before the learned District Judge. The same was numbered as Misc. Appeal No. 24 of 2024. The Court of learned District Judge has dismissed the same by an order dated 19.11.2024.
16.
From the above facts it is clear that this Court has not considered the merits of the earlier revision and there is no decision on earlier revision application filed by the present revisionist, determining the issue between the parties. The earlier revision was dismissed with liberty to the petitioner to avail remedies in accordance with law, which he has availed.
17.
This Court therefore finds no force and substance in the submission of the learned counsel for the plaintiff/respondent that since he had earlier filed CO/46/2024, the present revision application would be barred by principle of res judicata under Section 11 of the Code of Civil Procedure.
18.
This Court therefore, proceeded to consider the submission of the parties on merit. The fact of dispossession prior to filing of the suit being not in dispute, an issue which arises for consideration is whether the plaintiff was forcibly disposed from her tenancy, or not. 19.
Upon bare perusal of decision of the Apex Court in the case of Samir Narain Bhojwani (supra), this Court find that the same was delivered considering paragraph 16 of the earlier decision of the Apex Court in the case of Dorab Cawasji Warden (supra), wherein the Apex Court laid down general guideline for granting temporary mandatory injunction in the following terms.
"24. That apart, the learned Single Judge as well as the Division Bench have committed fundamental error in applying the principle of moulding of relief which could at best be resorted to at the time of consideration of final relief in the main suit and not at an interlocutory stage. The nature of order passed against the appellant is undeniably a mandatory order at an interlocutory stage. There is marked distinction between moulding of relief and granting mandatory relief at an interlocutory stage. As regards the latter, that can be granted only to restore the status quo and not to establish a new set of things differing from the state which existed at the date when the suit was instituted. This Court in Dorab Cawasji Warden V. Coomi Sorab Warden and Others, has had occasion to consider the circumstances warranting grant of interlocutory mandatory injunction. In paragraphs 16 & 17, after analysing the legal precedents on the point as noticed in paragraphs 11-15, the Court went on to observe as follows:
16. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are:
(1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.
(2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.
(3) The balance of convenience is in favour of the one seeking such relief.
17. Being essentially an equitable relief the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the court to be exercised in the light of the facts and circumstances in each case. Though the above guidelines are neither exhaustive nor complete or absolute rules, and there may be exceptional circumstances needing action, applying them as prerequisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion."
(emphasis supplied) 20.
Thus, by now it is settled law that the relief of temporary mandatory injunction may be granted to preserve, or restore status quo of the last non-contested status which preceded the controversy pending in the suit until the final hearing. In the present case the plaintiff claimed forcible dispossession from the suit property, even prior to filing
of the suit. The last non-contested status even as per the plaint was that the plaintiff was dispossessed from the suit premises prior to filing of the suit, thus there existed no uncontested possession of the suit premises either preceding the filing of the suit, or at the time of filing of the suit, which could have been preserved, or restored. 21.
As per the above noted two decisions of the Apex Court, the law is well settled that the relief of temporary mandatory injunction is an equitable relief. The Apex Court has stated the law that such relief may be granted in a suit where the plaintiff makes out a strong case of a standard higher than a prima facie case for grant of relief of temporary mandatory injunction. The guidelines laid down by the Apex Court as per the above noted two decisions have been stated to be not exhaustive or complete but the Apex Court has held that guideline laid down in the decision in the case of Dorab Cawasji Warden (supra) are to be applied for grant or refusal based on a sound exercise of judicial discretion. 22.
This court finds that in the facts and circumstances of the present case, since plaintiff was already dispossessed of the suit premises prior to filing of the suit, there was no occasion to grant the relief of temporary mandatory injunction to the plaintiff. Thus, this court finds that in the present case, the guidelines laid down by the Apex Court for grant of temporary mandatory injunction in the reports referred above have not been observed by the two Courts. The grant of relief of temporary mandatory injunction in the present case and it's affirmation by the
appellate court of learned District Judge in the present case amount to establishing a new state of things differing from the state which existed at the date when the suit was instituted. The orders therefore are in violation of the law regarding grant of temporary mandatory injunction and is causing grave injustice to the revisionist. This Court therefore finds that in granting the relief of temporary mandatory injunction the trial court has overstepped the limits of its jurisdiction.
The appellate court on the other hand has failed to exercise it's jurisdiction to set aside the order granting temporary mandatory injunction and has the occasioned a failure of justice requiring interference by the court exercising jurisdiction under Article 227 of the Constitution of India as per law laid down by the Apex Court in this regard in the case of Shiv Shakti Cooperative Housing Society, Nagpur vs. Swaraj Developers and others reported in (2003) 6 SCC 659 and Radhey Shyam and another vs. Chhabi Nath and others reported in (2015) 5 SCC 423, wherein a Bench of three Hon'ble Judges of the Supreme Court was considering the correctness of the law laid down earlier in the case of the Surya Dev Rai vs.
Ram Chander Rai reported in 2003 (6) SCC 675 that an order of a Civil Court was amenable to writ jurisdiction under the Article 226 of the Constitution of India. While considering the issue, the Hon'ble Apex Court has considered many earlier judgments regarding the scope of jurisdiction under the Article 226 of the Constitution of India.
writ jurisdiction under Article 226 of the Constitution of India. The Apex Court has also taken into consideration and held that the scope of jurisdiction under the Article 227 of the Constitution of India is distinct from that under Article 226. In paragraph 26 of the said judgment, the Apex Court has clearly held that " ..... we make it clear that though despite the curtailment of the revisional jurisdiction under section 115 of CPC by Act 46 of 1999, jurisdiction of the High Court under Article 227 remains unaffected. ...".
23.
The order dated 19.11.2024 passed by the learned District Judge in Misc. Appeal No. 24 of 2024 as well as order dated 30.10.2024 passed by the trial court in Other Suit No. 82 of 2024 are thus found to be unsustainable and are hereby set aside.
24.
The revision application stands allowed. Pending application, if any, stands disposed of.
( Madhuresh Prasad, J. )