Mr. Rameswar Bhattacharya vs Mr. Debjit Mukherjee

Supplementary affidavit filed on behalf of the petitioner, pursuant to leave granted earlier by this court, is taken on record. The grievance of the petitioner is that the appellate court below acted without jurisdiction in reversing the mandatory injunction order granted by the trial court without adverting to the reasons given by the trial court and/or holding as to why the trial court erred in law on in fact in passing such order.

Mr. Rameswar Bhattacharya, learned senior advocate appearing on behalf of the petitioner, submits that the plaintiff/petitioner, who is also a trustee of the concerned trust, was granted tenancy in respect of the suit room by the trust, but, subsequently, was sought to be ousted by putting a lock on the door of the suit room in the year 2013. It is submitted that it will be apparent from the documents produced in the court below that the petitioner has

been consistently paying rent in the form of ‘pranami’ for residence in such accommodation.

Moreover, it was admitted in the written objection of the defendants/opposite parties to the mandatory injunction application, that the lock was affixed by the defendants, thereby restricting entry of the petitioner. It is, thus, submitted that the impugned order of the appellate court could not stand the scrutiny of revision. A further contention raised by the petitioner is that the finding of the appellate court regarding the balance of convenience and inconvenience which, apparently, proceeded on the premise that the opposite parties would be inconvenienced since they would be compelled to file an eviction suit afterwards, which was considered of a higher gravity than that of the petitioner in remaining outside the suit room. As such, the

observation, it is submitted, was absurd and ought to be set aside.

Mr. Debjit Mukherjee, learned advocate appearing on behalf of the opposite parties, argues, while contradicting the aforesaid arguments, that the appellate court was justified in passing the impugned order, which was well reasoned. It is further submitted that the appellate court categorically found that the purported rent receipts were granted by the uncle of the petitioner and, as such, those were collusive and could not amount to rent receipts worth the name. This apart, it is submitted that the suit is already on the peremptory hearing board and, as such, at this juncture, no mandatory injunction ought to be granted in the matter.

A perusal of the materials on record shows that, although certain rent receipts were produced by the petitioner in the court below, the appellate court cast a reasonable doubt as to the veracity of such receipts, which finding could not be said to be patently perverse. Undoubtedly, all the points decided by the appellate court and the trial court would be kept open for hearing at the trial of the suit. However, the plaintiff/petitioner could not be said to have made out a prima facie case of tenancy of the standard demanded to justify the grant of temporary mandatory injunction.

The best case of the petitioner could have been the admission of the opposite parties in their written objection to the mandatory injunction application,

to the effect that a lock was put on the suit room, ousting the petitioner therefrom. Yet, the date of such admitted dispossession as disclosed on the said objection was sometime in the year 2004. Even if such admission is taken against the opposite parties, the interregnum of nine years for which the petitioner waited even as per such admission, could not justify the grant of temporary mandatory injunction during the pendency of the lis.

As such, although the finding of the appellate court was undoubtedly absurd as to the balance of convenience and inconvenience, the appellate

court’s order does not deserve interference on the ground of absence of a strong prima facie case to justify mandatory injunction. Regarding the

argument that the appellate court did not advert specifically to the findings of the trial court while reversing them, it is seen that all the nooks and corners of the matter were visited by the appellate court while rendering its judgment and, in the process, the considerations of the trial court were taken due care of, albeit without specifically spelling out such consideration. Hence, the impugned order of the appellate court does not deserve interference on such technical ground either.

Accordingly, the revisional application bearing C.O. 2703 of 2018 is dismissed on contest. However, it is made clear that the merits of the contentions of both the parties have been gone into only incidentally for the purpose of deciding the injunction application and the connected appeal. The trial court would be free to decide all questions involved in the suit independently without being influenced by any of the observations made herein or in the orders passed by the courts below at the time of trial.

Since the suit bearing Title Suit No. 301 of 2013 pending before the Civil Judge (Junior Division), First Court at Chinsurah, Hooghly, is already at the peremptory hearing stage, the trial judge is requested to dispose of the same as expeditiously as possible, preferably within March 31, 2019, without granting any unnecessary adjournment to either of the parties. There will be no order as to costs.