Negus Mercantile Pvt. Ltd vs Shakuntala Jain

Ashis Kumar Chakraborty, J

Mr. Sardar Amjad Ali, Sr. Adv., Ms. Dipanwita Tapaswi, Mr. A. Pyne, advs...for respondent.

The Court : The plaintiff in a suit for declaration and injunction has filed this application seeking for various interim relief against the defendant in respect of the suit property, being a portion of premises no.93, Park Street, Kolkata- 700 016 comprising a piece of land admeasuring about 5 Cottahs 5 Chittacks and 11 sq. ft., together with building, out-house, structures and boundary walls lying thereat (hereinafter referred to as 'the suit property').

It is the case of the petitioner that the members of Ata Family, namely, Mukta Lall Atta, Apurba Kumar Atta, Smt. Bandana Mullick, Smt. Bharati Biswas, Smt. Arpona Atta, Smt. Jayasree Mallick, Smt. Anushree Paul, Smt. Madhabi Atta, Ranjit Kumar Atta, Surajit Kumar Atta, Smt. Ratna Khan, Shanti Lall Atta, Smt. Sipra Saha, Smt. Sikha Chatterjee, Smt. Sipra Atta, Sounak Atta, Smt. Shamoyita Mallick and Saibal Atta (hereinafter referred to as "the original owners)residents of No.139, Shib Gopal Banerjee Lane, Salkia, Malipanchghara, Howrah, were the owners of the entire premises no. 93, Park Street. By a registered deed of lease dated March 13, 1972 the original owners demised the suit property in favour of the defendant/respondent for a period of 20 years commencing from January 1, 1972 and ending on December 31, 1991. Subsequently, by a registered conveyance dated August 11, 2006 the original owners transferred the entire premises no.93, Park Street, including the suit property in favour of the petitioner. The petitioner does not dispute that after the expiry of the lease dated March 13, 1972 the respondent remains in occupation of the suit property. The respondent has also accepted the petitioner to be the owner of the suit property and the same would be evident from the receipts issued by the Rent Controller evidencing deposit of the monthly rent in respect of the suit property by the respondent mentioning the petitioner to be the landlord/owner. In this connection, copies of the receipts issued by the Office of the Rent Controller produced by the respondent before this court for the months October 2018 and January 2019 are kept on record.

The cause of action of the petitioner for filing the present suit against the respondent is alleged to be based on certain construction work sought to be commenced by the respondent at the suit property. According to the petitioner, the respondent is trying to carry on wrongful and illegal construction at the suit property. The petitioner prays for appointment of a Special Officer to visit the suit property, as well as an order of injunction restraining the respondent from carrying out any construction work resulting in structural addition or alteration of the suit premises without any sanctioned plan from Kolkata Municipal Corporation. The petitioner further seeks for an ad interim order of injunction, restraining the respondent from transferring any portion of the suit property in favour of a third party.

A copy of the application has been served upon the respondent. Learned senior counsel appearing for the respondent submitted that the petitioner was all along aware of the leasehold interest of the respondent in respect of the suit property. According to him, the petitioner is well aware that in terms of clause 3(c) of the said deed of lease dated March 13, 1972 the respondent was entitled to sublease the suit property in favour of any third party and she was entitled to sale petroleum products from the suit property by installing underground tanks, delivery pumps, pipes, etc. It is further submitted that when the petitioner company claims to have purchased suit property in the year 2006 but for the last 13 years they have not initiated any proceeding for eviction of the respondent from the suit property. According to the respondent, in exercise of the right to sublease the suit property under clause 3(c) of the said deed of lease dated January 13, 1972 she has already sub-let the suit property in favour of a petroleum company to run the business of petrol pump at the suit property. It is argued for the respondent that from the reliefs claims by the petitioner in the suit as mentioned in paragraph 21 of the application it is evident that the suit is not maintainable.

I have considered the materials on record as well as the argument advanced by the learned counsel appearing for the respective parties. In the present case when the respondent is depositing the monthly rent in respect of the suit property with the Rent Controller in the name of the petitioner, it is evident that the respondent does not dispute the petitioner to be the owner of the suit property.

Although it is the case of the respondent that she is not carrying on any construction of the suit property and the sub-lessee inducted by him is in possession of the suit property even in that event the sub-lessee is nothing but an agent of the respondent. From a bare reading of the said deed of lease dated March 13, 1972, there cannot be any doubt that with the expiry of December 31, 1992 the said lease of the respondent in respect of the suit property has expired and consequently the sub-lessee's interest in the suit property, prima facie, appears to have come to an end.

Even if for the sake of argument the respondent is treated to be a monthly tenant in respect of the suit property by holding order, she does not have any right to transfer the suit property in favour of any third party. Even claiming as a monthly tenant the respondent does not have any right to carry on any construction work to cause any structural addition or alteration of the suit property. The respondent has not explained the reason as to why the suit as framed by the petitioner in not maintainable.

Considering the above facts, I find that the petitioner has made out a prima facie case for obtaining orders of interim protection. When the petitioner alleges construction work is being carried on at the suit property and the respondent tenant says that she is not aware who is carrying on any construction, I find it appropriate to appoint Mr. Ranjan Sinha, Advocate of Bar Library Club (First Floor) as the Special Officer to visit the suit property and file a report before this Court with the present condition of the suit property and if any construction work is likely to commence or has already commenced at the suit property. There shall also be an ad interim order in terms of prayers (c) and (d) of the Notice of Motion, till August 19, 2019 or until further order, whichever is earlier. The application will appear, under the same heading, on August 14, 2019, when the Special Officer shall file his report.

The petitioner shall pay the initial remuneration of the Special Officer assessed at 2500 GMs. The petitioner shall make all arrangements for the visit of the Special Officer at the suit property.

Needless to mention that the Special Officer shall inspect the suit property upon notice to the learned advocate on record of the respondent. The respondent shall not obstruct the Special Officer to carry out the above direction passed by this court.

Let it also be recorded that learned counsel appearing for the petitioner provided the advocate on record of the respondent with a copy of the plaint filed in the suit.