AI Structured Summary
Not yet generated for this judgment
Judgment
P.K. Mohanty, J.—The defendants in a suit for injunction and account are the petitioners against the order of injunction passed by the trial
Court restraining them from taking any coersive action and subsequently directing reconnection of electric and water supply to the suit scheduled
properties.
The opposite party, as plaintiff filed a suit in the Court of the Civil Judge (Senior Division), Cuttack for permanent injunction, restraining the
defendants-petitioners from existing her from the quarters she occupied as a teacher and subsequently as a principal of the Stewart School,
Cuttack, without due process of law till her entitlements and retirement dues have been cleared and for accounts with regard to her entitlements
claiming that during a period of 41/2 years intermittently when she remained in charge of principal, she has not been paid a scale admissible to a
principal and as per terms of her appointment, she is entitled to retain the quarter till all her dues are cleared. The defendants-petitioners on the
other hand refute all the allegations and claims and according to them, all her dues have already been settled inasmuch as there is no contact or
understanding whatsoever that she would occupy the premises meant for a working teacher after her retirement even in spite of notice to vacate.
The opposite party has retired as superannuation on 17-4-95 and on her application, she was granted three annual extensions and her last term of
extension having expired from 31-5-98, she has retired with effect from 31-6-98.
The plaintiff in the aforesaid suit filed an application under Order 39, Rules 1 and 2, C. P. C. on 15-10-98 and a copy of the petition was
served on the learned counsel for the defendants-petitioners, who entered caveat. The defendants filed their objection/show cause on 16-10-98. A
petition for ad interim order against the opp. party was filed, but as it appears, copy of the petition was not served on the opposite parties, the
learned Civil Judge (Senior Division) First Court, Cuttack while directing the matter to be put up on 17-10-1998 for hearing, directed the opposite
parties not to take any coercive step for eviction of the petitioner from the suit premises till the next date. On 17-10-1998, the petitioner (opposite
party in the injunction petition), filed an application for time, which was allowed and the matter was directed to be put up on 20-10-1998 for
hearing. The interim order dated 16-10-1998 was directed to be continued till then. On 20-10-1998, both the parties were heard on the Misc.
Case, but the orders were reserved for delivery on 7-10-1998. The previous order dated 16-10-1998 was allowed to be continued till then. On
22-10-1998, an advance petition was filed by the plaintiff-opp. party praying for a direction to the opp. parties to restore electricity and water
supply. The petition was directed to be put up on 23-10-1998. The learned Civil Judge being absent, the matter was put up on 26-10-1998 and
was adjourned to 27-10-1998 for filing of objection. The learned Civil Judge (Senior Division), Cuttack by order dated 27-10-1998, has directed
to restore the electricity and water connection charges to the premises of the petitioner immediately, Hence, the present -Civil Revision.
Sri Bijan Ray, learned Senior Advocate appearing for the petitioners submits that the Revision has been directed against the interim order of
injunction dated 16-10-1998 and 27-10-1998 in the compelling circumstances since the learned Civil Judge reserved the order for more than 20
days and granted ad interim injunction without any tangent reasons whatsoever. It is his submission that the party which seeks an injunction must
establish a prima facie case, a strong case for trial for mandatory injunction, the plaintiff being a mere trespasser having not even a samblence of
right to continue in possession, far less of prima facie case or a strong case for trial, the orders are illegal and liable to be vacated on that count
alone. No interest in the premises has accrued in favour of the plaintiffs and he is no more than a mere trespasser after expiry of the term of her
appointment on 31-5-1998. The occupation after retirement is unauthorised and she is liable to vacate the quarter and in such circumstances, no
order could have been passed. It is his further submission that the suit being frivolous, the plaint ought to have been rejected on a plain reading
thereof, inasmuch as remedy of licencee (trespasser) is only by way of damages, if any, and not by grant of injunction. The premises in question
being allotted to the plaintiff on her appointment as a teacher, she was to voluntarily vacate the quarter on her superannuation as there is dearth of
space for holding the classes and the plaintiff having occupied three rooms unauthorisedly, which are class rooms, the classes are being conducted
under the tree. Sri Ray submits that, the conduct of the plaintiffs'' itself will go to show that she had never claimed to retain the possession till
clearance of her dues, but on the ground of completion of the study of her daughter and the time till she migrates to America, as would be evident
from the letters dated 25-9-1998 and 30-9-1998. There being no prima facie case, nor any balance of convenience or apprehension of irreparable
injury the learned Civil Judge even without any discussion and satisfaction about the condition precedents to grant an interim order, the order for
not taking any coercive action and the mandatory order for reconnection of the electricity and water connection is without jurisdiction.
Sri Ashok Mukherjee, learned Senior Counsel for the plaintiff-opp. party, controverting the contentions raised by the learned counsel for the
petitioners, on the other hand submits that the plaintiff has remained in possession of the house, which was allowed to her during the tenure of her
service and she had right to retain the same till her dues and entitlements are paid and cleared as per the terms of her appointment, It is his
submission that in view of the letter of the management that the plaintiff shall be liable to pay the enhanced rent, she is a tenant and not a Hcencee
after expiry of the term of her appointment. The learned counsel has filed some documents along with an affidavit after closure of hearing with an
endorsement in the affidavit that the learned counsel for the petitioners refuses to receive the same, annexing certain documents. He has referred to
the letter dated 28-10-1998, wherein apart from indicating the inconvenience caused to the school due to continuance of the plaintiff, it has been
indicated that the management has decided to charge rent for rooms at the rate of Rs. 3,000/- per month till vacation thereof. It is his further
submission that the suit is for accounts with regard to the plaintiffs entitlement and in terms of her appointment she having a right to occupy the
quarter till all her dues are cleared, she cannot be forced to vacate the quarter till before payment of her dues.
In view of the rival contention of the learned counsel for the parties the point for consideration is whether, the plaintiff had satisfied the conditions
for grant of an order of injunction. Law is well settled that granting or refusing of a temporary injunction is covered by three well established
principles; (a) whether the petitioners have made out a prima facie case; (b) whether the balance of convenience is in their favour, and (c) whether
the petitioners will suffer irreparable injury if the temporary injunction is not granted. The parties who seek the aid of the Court for injunction must
show that the act complained of is in violation of his right and whether there is a fair and substantial question to be decided between the parties,
and there is a bona fide contention between the parties. If such conditions are available the relief may be granted. It is then the duty of the Court to
consider the materials placed on record in the matter of granting or refusing to grant temporary injunction and considering the documents, such an
order can be passed. Considering a document does not mean the mere reference to the order, but there must be some discussion regarding the
documents before coming to a conclusion.
Sri Ray, learned Senior Counsel for the petitioners has referred to the case of Dorab Cawasji Warden Vs. Coomi Sorab Warden and others, to
contend that the Apex Court has settled the law, the circumstances under which the interlocutory mandatory injunctions are to be granted. In
paragraph 14 of the aforesaid judgment the Apex Court has observed.
The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo at the last non-contested status
which proceeded 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.
In the present case, the learned Civil Judge, has neither mentioned about the materials nor discussed the respective contentions of the parties in his
order dated 16-10-1998 while directing the defendants-petitioners not to take any coercive action in the matter, inasmuch as on the prayer of the
plaintiff, restraining the defendants by order of injunction, the learned Civil Judge could have either allowed the prayer or rejected the same, but
instead a vague order not to take any coercive action has been passed.
The plaintiff-opposite party undisputedly has superannuated from the service under the defendants-petitioners on 46-4-1995. Three annual
extensions granted on her request have expired on 31-5-1998. The quarter/rooms in question were allotted to her on rent-free basis during the
subsistence of her service, necessarily for efficient, discharge of her duties to teach the school children. No document or any letter has been
produced before the trial Court or in the present Revision to indicate that as per the terms of the contract of her appointment the plaintiff was to
remain in occupation even after her retirement/superannuation/term is over till her claims are cleared. The specific case of the plaintiff as per the
plaint averments in paragraph 5 is that ""the understanding was that"" such difference of salary and other allowances payable to the plaintiff would be
computed before her superannuation and the entire amount would be paid to her in lump sum on superannuation. In paragraph 8, it is stated ""that
the institution is bound to clear all the dues of the plaintiff before she is called upon to vacate the accommodation provided to her as a condition of
her employment."" In paragraph 13 of the plaint it is averred that the plaintiff''s occupation of the official quarter is inter-linked with her lawful
entitlement. Her licence to occupy the official quarter cannot be revoked till her all dues are paid which is a condition of her service."" Not a scrap
of paper has ever been filed before the trial Court nor in this Court to show that such was the condition of her service. Interestingly, the learned
Civil Judge while granting the order dated 16-10-1998, not to take any coercive action has neither discussed about the materials or even claim and
contentions of the parties, but while posting the matter to 27-10-1998 for hearing he has passed the interim order without giving any reason
therefor. Law is well settled that before passing any interlocutory order, the Court must apply its mind to the facts add circumstances of the case
and the materials placed before it for consideration and in all fairness, the Court has to consider and pass a reasoned order as to why the order of
injunction should be granted. On a reading of the order dated 16-10-1998, I do not find any cogent reason whatsoever for grant of such an order.
Similarly, the order dated 27-10-1998, while issuing a mandatory order of injunction, the learned Civil Judge has not kept in view the requirements
and pre-conditions for issue of an ad interim order of injunction mandatory in nature. The plaintiff having not placed any: materials to show that she
was allowed to retain the quarter even after her term of extended appointment was over inasmuch as the management having issued notice dated
1-7-1998, two months after the demission of the office by the plaintiff on 1-7-1998 allowing further time of two months and her prayer for
retention of the quarter on the plea that, she intends to migrate to America in April, 1999 and as such, she may be allowed to continue to occupy
the quarter having been rejected on 24-8-1998 and in view of the notice dated 25-9-1998 requiring the plaintiff to vacate the quarter in question,
the possession of the plaintiff becomes unauthorised and his possession is of a trespasser. The Apex Court in D.H. Maniar and Others Vs. Waman
Laxman Kudav, held that a person continuing his possession of the premises after termination, withdrawal and revocation of licence continues to
occupy as a trespasser or as a person who has no semblance of any right to continue in occupation of the premises and such person by no stretch
of imagination can be termed as a licencee. In Goura Mohan Giri and Another Vs. Union of India (UOI) and Others, a Division Bench of this
Court, while interpreting a case under the Public Premises (Eviction of Unauthorised Occupants'') Act, 1971, have found that after the retirement
from service and after occupying during the grace period, the occupation is unauthorised and the occupant can be termed as an unauthorised
occupant, In that view of the matter, the plaintiff-opp. party''s possession of the quarter being unauthorised and no agreement or contract of service
in favour of her occupation having been brought on record, she has no right whatsoever to continue in possession thereof. Wordless to say that an
employee who was allotted with an accommodation for rendering efficient service on his/her retirement has to vacate the same for the convenience
and smooth functioning of the employer''s institution. The institution in question is a school and the possession is in respect of some rooms inside the
premises of the school and according to the learned counsel for the petitioners, because of dearth of and non-availability of the rooms, some
classes are being held under the tree, Be that as it may, the sole contention of the learned counsel for the plaintiff-opp, party being that the
occupation is in terms of condition of her service, wherein it has been stipulated that she will be entitled to retain the quarter till all her dues are paid
and no document or correspondence having been placed on record to show that any such terms was incorporated in the condition of her service,
she has no semblance of right to continue occupying the rooms in question. Thus, I do not find a prima facie case in favour of the plaintiff-opp.
party much less to say about a debatable or argueable point for consideration in the trial as to her right to continue in the quarter, inasmuch as the
main claim of the plaintiff for accounts in respect of her entitlements, cannot be linked with her occupation. That apart, in a petition for injunction
the Court has to consider the prayer keeping in view the provision of Order 39, Rule I, C.P.C. An ad interim order can be passed to prevent
injury to the plaintiff in relation to any property in dispute in the suit. Thus, the order must be in respect of property in dispute. The subject-matter
of dispute in the suit is not the premises but her entitlements:
The next point for consideration is, as to whether the balance of convenience tills in favour of the plaintiff to ask for the retention of the quarters.
The campus admittedly meant for a working teacher and the plaintiff was allowed such occupation to discharge her duties efficiently and
conveniently as a teacher. Undisputedly, she has ceased to be a teacher/principal, as the case, since 31 -5-1998, she has no right to continue in
possession until her claims in the suit are settled, It may be reiterated that the suit is for computing her settlements as a teacher-in-charge of
principal and for some time as principal, which has been quantified, at Rs. 5,00,000/-, the matter has to be decided in the suit and her entitlements
are to be determined on the basis of materials available on record. The amounts are to be computed and she may be entitled to the amount with
interest as claimed, but that would not clothe her with the right to continue in occupation of the quarter in question, the suit may continue for quite
sometime. Since remedy of a licence if at all or trespasser can also be quantified in terms of damage, no irreparable injury can said to be caused
even one does not continue to occupy the premises, inasmuch as reasonable time has been afforded to her to vacate the same.
It is contended by Sri Mukherjee, the learned Senior Advocate, that the petitioners having violated the order of injunction in disconnecting the
water and electricity supply, the plaintiff has filed a petition before the trial Judge under Order 39 Rule 2-A, CPC inasmuch as during the
subsistence of the interim order, not to take any coercive steps the petitioners having disconnected the lines, it was in the interest of justice, the
mandatory injunction called for. Sri Ray, the learned Senior Advocate on the other hand submits that no order has been violated by the petitioners
inasmuch as in absence of a prima facie case. However, the violation if any of the order for which the suit is pending before the trial Court has to
be dealt with in its proper prospective, on which I am not required to delve into. Suffice it to say that the Court before passing any order for ad
interim order mandatory in nature has also to be satisfied that the condition precedent to pass such order exists and on consideration and with
reasons. Having held that there is no prima facie case in favour of passing the impugned order, the contentions are to be rejected.
In that view of the matter, the order of ad interim injunction not to take any coercive action dated 16-10-1998 and the subsequent mandatory
injunction directing re-connection of the electricity and water supply, cannot be sustained in law and has to be vacated. However, it is clear that the
allegations of the plaintiff-opp. party with regard to violation of the order of ad interim injunction during the subsistence of the interim order and the
claim of the defendants-petitioners that it has not been violated, is to be considered on its own merit by the trial Court on which I express no
opinion whatsoever nor the observations made herein shall influence the learned trial court while considering the matter or in respect of the main
suit.
The Civil Revision is thus allowed and the impugned orders are set aside.