Anjalee Bhattacharjee vs Sunanda Deb & Anr.

Heard Mr. K. Paul, learned counsel for the petitioner.

This is an application under Article 227 of the Constitution of India assailing the impugned order dated 10.06.2020 passed in F.A.O. No. 1 (H) 2020 arising out of Misc. Case No. 3 (H) 2020 and Title Suit No. 5 (H) 2020 by the Court of the learned Additional District Judge, Shillong.

The brief facts of the case are that the petitioner as plaintiff had filed a suit for declaration and mandatory injunction along with an application for an ad interim injunction praying for orders to direct the defendants/opposite parties to remove the garbage/debris/construction materials blocking the ingress/egress to the suit premises and to allow the petitioner/plaintiff to enter the suit premises under her occupation without any hindrance. The learned Trial Court vide order dated 29.05.2020 rejected the prayer for grant of ad interim injunction. Being aggrieved thereby the petitioner/plaintiff filed an appeal being F.A.O. No. 1 (H) 2020 before the Court of the Additional District Judge, Shillong. The learned first Appellate Court then fixed the matter on 17.06.2020 for hearing.

Mr. K. Paul, learned counsel for the petitioner submits that the petitioner is a tenant under the respondents which is not disputed and that the said suit premises, is being used as a godown/storage to store materials of the petitioner in the course of her business of selling stationery items. Learned counsel submits that the petitioner has been in possession, in use and occupation of the suit premises since 1967 without any let or hindrance, but surprisingly on 19.05.2020 when the employees went to open the godown it was discovered that the ingress/egress to the godown was completely blocked causing great inconvenience to operate her business, inasmuch as, the petitioner could neither enter the suit premises nor take out any of her stocks to carry on her business, thereby causing huge loss to her. He submits that an FIR was also lodged on 19.05.2020 before the Sadar Police Station but as there was no action forthcoming, and apprehending forceful eviction from the suit premises without following due process of law, the petitioner then filed the Title Suit.

Learned counsel submits the learned Trial Court while hearing the matter rejected the prayer of the petitioner by order dated 29.05.2020 holding that that there is no urgency in spite coming to a finding that the petitioner is a tenant of the opposite parties. Learned counsel submits being aggrieved thereby filed an appeal before the Lower Appellate Court which however did not appreciate the urgency and ordered for issuance of notice and for filing of show cause in hearing on 17.06.2020. It is contended that the Lower Appellate Court failed to appreciate the fact that the petitioner had a fit case for grant of interim relief, and the non-consideration thereof has caused serious prejudice and that the Lower Appellate Court had totally failed to see the urgency in the matter which concerns ingress/egress to the suit premises to enable the petitioner to run her business smoothly.

Learned counsel submits that having no other recourse and considering the urgency of the matter is therefore compelled to come before this Court by way of this application under Article 227 of the Constitution of India. He therefore prays that in the interim, for consideration of the limited prayer of the petitioner to direct the respondents to remove the garbage/debris/construction materials which is blocking the ingress/egress to the suit premises.

Having heard and considered the submissions advanced by the learned counsel for the petitioner, it is seen that the limited issue is only regarding the obstruction caused to the entry to the suit premises of the petitioner for which the petitioner claims has adversely affected her business. A perusal of the orders of both the Trial Court and Lower Appellate Court show that the Courts below while considering the prayers for interim relief were not satisfied as to the urgency of the prayers so made. The Lower Appellate Court vide order dated 10.06.2020 had fixed 17.06.2020 for report, show cause and hearing. It is noted that no final order has been passed by the Lower Appellate Court in the appeal which is pending but it is not understood as to how a show cause has been called for in an appeal. It has been submitted that the matter has since been re-fixed on 24.06.2020 for hearing.

Under Article 227 of the Constitution of India the powers of this Court in Revisional jurisdiction are to be exercised sparingly and that too only when there is a flagrant abuse of power, and a mere wrong decision is not a ground for invoking such powers under this Article. In the present case the petitioner has approached the Courts in view of the stated urgency and the loss that was being caused, in this period of limited functioning of the Courts due to the pandemic situation. The plea of urgency had been accepted and the matters listed and taken up by the Trial Court and Lower Appellate Court, which however in spite of the urgency have observed otherwise.

Taking into account the facts and circumstances at hand, without further discussion, or issuance of notice to the respondents, this matter is disposed of with the limited direction that the Lower Appellate Court take up the matter expeditiously, taking into account the prevailing limited function of the Courts and the prevailing lockdown situation and pass effective orders thereon on the next date fixed without any further delay.

Disposed of accordingly, no order as to costs.