M/s. Dutta Lahiri and Company vs Smt. Ratna Sur

The present challenge is against the refusal of mandatory injunction by the trial court in a proceeding under Section 6 of the Specific Relief Act, 1963.

The petitioner, by relying primarily on a licence agreement and a notice to quit served by the opposite party, argues that the petitioner was undisputedly

in possession of the suit premises when it was dispossessed by the opposite party. The trial judge, while refusing such injunction, proceeded only on

the basis that grant of such mandatory injunction at such a stage, would amount to decreeing the suit itself. Such observation was made, despite the

trial court having specifically found that, on the basis of the petition, supported by an affidavit, it clearly appeared that the plaintiff had a prima facie

case to face the trial and that the balance of convenience and inconvenience tilted in favour of the plaintiff.

It is submitted on behalf of the opposite party that only if a sufficiently strong prima facie case was made out, on a pedestal much higher than that

made out by the petitioner, the trial court could have granted mandatory injunction during pendency of the suit, more so, since the opposite party had

got no opportunity at the juncture when the impugned order was passed, to controvert the allegations in the mandatory injunction application, since the

matter was at the ad interim stage. It is further submitted by learned counsel for the opposite party that a perusal of the impugned order would show

that there was no infirmity in the order inasmuch as the grant of ad interim mandatory injunction at such a premature stage would tantamount to

decreeing the suit itself, without hearing the opposite party on merits.

Learned counsel for the petitioner places reliance on several payments, which are apparently reflected from the bank statements of the petitioner,

which, according to learned counsel, were payments of rent to the opposite party. Such an inference, however, is opposed by the learned counsel for

the opposite party on the ground that those were unilateral transfers of money without any knowledge of the opposite party.

It appears from a previous Division Bench judgement of this Court, passed in this matter, that there was some doubt as to whether the

plaintiff/petitioner had claimed to be still in possession of the suit property at the juncture, when the mandatory injunction application was moved, for

which purpose a Special Officer was appointed by this Court. The said Special Officer submitted a report, which apparently showed that no

possession or belongings of the petitioner were there at the suit premises, which prompted the Division Bench to observe that the suit premises would

be under lock and key and the key would be kept with the Special Officer. The possession of the suit premises is with the Special Officer till date,

since there has not been any alteration to such position.

It appears that the present opposite party had filed a vacating application, being C.A.N. 11897 of 2017. It is submitted that the petitioner did not get a

copy of such application. In view of disposal of the revisional application itself, the said application, and all other pending applications in connection

with the present revision, become academic and, needless to say, it would be deemed that the petitioner does not admit any of the averments made in

the said vacating application.

In the circumstances, it is seen, as was also observed by the court below, that the petitioner had raised prima facie presumption as to its occupation of

the suit premises at the juncture when it lost possession. There is, however, controversy between the parties as to the mode in which such possession

was lost by the petitioner. The petitioner says that it was ousted by the opposite party; whereas the opposite party claims that the petitioner left of its

own volition. In the event such controversy is gone into on merits in the present revision, the same might have a bearing on the disposal of the suit,

although the finding would be tentative for the purpose of this injunction application. This is because the finding of prima facie case, even if arrived at

while taking up the injunction application, in the absence of change of circumstances, might be construed as binding in some cases even at the trial.

For the ends of justice, it would be appropriate if the suit itself, which is of a summary nature, is directed to be disposed of within a limited period and

the opposite party, who has not yet filed her written objection to the mandatory injunction application and/or written statement in the suit, ought to be

given an opportunity to do so.

Accordingly, C.O. No. 3589 of 2017 along with C.A.N. 6561 of 2016 and C.A.N. 6563 of 2016 are disposed of without interfering with the impugned

order, by directing the trial court to dispose of the mandatory injunction application along with the suit itself within four months from the date of

communication of this order to the court below. The opposite party will file her written objection to the mandatory injunction application as well as

written statement in the suit within a fortnight from date in the court below.

It is made clear that the key to the suit premises will remain with the Special Officer already appointed by this Court previously, subject to any

direction, which would be passed on the Special Officer in that regard at the time of final disposal of the suit by the court below. It is further made

clear that the time frame stipulated above for disposal of the suit, is peremptory and the court below will make all endeavour to strictly adhere to the

same. Parties are directed to communicate this order to the Special Officer at the earliest. There will be no order as to costs. Urgent certified website

copies of this order, if applied for, be made available to the parties upon compliance of all requisite formalities.