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Judgment
Bhaskar Bhattacharya, J.—This revisional application u/s 115 of the CPC is at the instance of Defendant No. 7 in a suit for declaration and injunction and is directed against Order No. 3 dated November 11, 1997 passed by the learned District Judge, Howrah in Misc. Appeal No. 243 of 1997 thereby directing the parties to maintain status quoin respect of the suit property till December 12, 1997 which was subsequently extended from time to time but ultimately was vacated in view of stay order granted by this Court while entertaining the instant revisional application on February 18, 1998.
The opposite party No. 1 as Plaintiff filed a suit being Title Suit No. 195 of 1997 before the learned Civil Judge, Junior Division, 3rd Court, Howrah thereby praying for the following reliefs:
i) a decree of declaration to the effect that the Plaintiff is a premises tenant in respect of the suit property in schedule below and he is entitled to occupy the suit property;
ii) a decree of declaration to the effect that the Defendants have get no right to evict the Plaintiff from the suit property without any due process of law;
iii) a decree of declaration to the effect that the Defendants have got no right to disturb and/or interfere with the peaceful possession of the Plaintiff over the suit property in schedule below;
iv) a decree of declaration to the effect that the decree dated August 29, 1997 passed by the learned 2nd Court of the Civil Judge, Senior Division, Howrah in Title Suit No. 92 of 1982 is vitiated by fraud and collusion and the same is not binding upon the Plaintiff with a further declaration for setting aside the same.
v) a decree of declaration to the effect that the decree dated August 29, 1997 passed by the learned 2nd Court o the Civil Judge, Senior Division, Howrah in Title Suit No. 92 of 1982 is not liable at the same has been obtained by collusion and also by practising fraud upon the learned Court.
vi) a decree of permanent injunction restraining the Defendant and their men and agents from disturbing and/or interfering with the peaceful possession of the Plaintiff over the suit property and also restraining them from creating any sort of disturbance and obstruction in the matter of peaceful running of the business over the suit property in schedule below in any manner whatsoever.
vii) a decree of permanent injunction restraining the Defendant No. 7 from executing the decree dated August 29, 1997 passed in Title Suit No. 92 of 1982 by the learned 2nd Court of the Civil Judge, Junior Division at Howrah which has been obtained in collusion and by practising fraud;
viii) all cost of the suit;
ix) any other relief/reliefs which the Plaintiff may be found entitled to both in law and in equity.
In the said suit, heirs of one Gabinda Chandra Pal were made Defendant Nos. 1 to 5, one Santosh Kumar Datta was made defenant No. 6, the present Petitioner was made Defendant No. 7 and the State of West Bengal was made proforma Defendant.
The case made out by the opposite party No. 1 in the said suit was, inter alia, as follows;
a) The suit property was thika tenanted structure owned by Gobinda Chandra Pal upon a land owned by Santosh Kumar Datta, the Defendant No. 6 and such thika tenancy started from 1955 and was continuing.
b) There was an agreement for sale of the superior landlord''s interest in favour of Gobinda Chandra Pal by Defendant No. 6 on December 5, 1975 on receipt of Rs. 3,000.00 and such agreement was registered in the office of the Sub-Registrar, Howrah. The said Defendant No. 6 received a further sum of Rs. 3,000.00 at the rate of Rs. 1,000.00 each on three occasions on November 20, 1978, November 12, 1979 and February 6, 1981 respectively. In the meantime, Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981, which restricted the transfer of thika tenanted property having come into force, the superior interest of Defendant No. 6 vested in State of West Bengal and as such Gobinda Chandra Pal became direct tenant under the State of West Bengal.
c) After the promulgation of the aforesaid Act, the Defendant No. 7 on December 8, 1982 filed a suit against Defendant No. 6 for specific performance of contract being Title Suit No. 92 of 1982 in the 2nd Court of Subordinate Judge, Howrah by suppressing the fact that the property was a thika tenanted property. In the said suit Gobinda Chandra Pal was made proforma Defendant and no relief was claimed against proforma Defendant.
d) The said Gobinda Chandra Pal, however, after entering appearance in the suit filed written statement thereby disputing the allegation of the Defendant No. 6 herein and claimed thika tenancy right. During the pendency of the said suit, the opposite party No. 1 was inducted as a premises tenant by Gobinda Chandra Pal in respect of the structure. Pending the hearing of the said suit Gobinda Chandra Pal having died, the Defendant Nos. 1 to 5 herein along with the widow of Gobinda Chandra Pal, since deceased, were substituted but curiously enough, the heirs of Gobinda Chandra Pal along with Defendant No. 6 herein colluded with the Defendant No. 7 and the plea that the disputed property was a thika tenanted land was given a go by and decree for specific performance of contract was passed.
e) The said decree was a fraudulent decree and not binding upon the Plaintiff/opposite party No. 1 as in view of promulgation of Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 the Defendant No. 6 could not transfer his interest over the property. Hence the suit.
After filing the aforesaid suit, the opposite party No. 1 filed an application for temporary injunction thereby praying for an order of temporary injunction restraining the opposite party No. 7 from disturbing the possession of the opposite party No. 1 in respect of the suit property by virtue of the said fraudulent decree passed in Title Suit No. 92 of 1982.
The learned trial Judge issued notices upon the Defendants therein to show cause why the prayer of the opposite party No. 1 should not be granted but refused to grant any ad interim order of injunction.
Being dissatisfied with the refusal of ad interim order of injunction, the opposite party No. 1 preferred a Misc. Appeal before the learned District Judge being Misc. Appeal No. 243 of 1997 and immediately after the admission of the said appeal, prayed for a fresh order of temporary injunction before the learned District Judge.
By Order No. 3 dated November 11, 1997 which is the subject matter of instant revisional application the learned District Judge found prima facie case in favour of the opposite party No. 1 and after considering the balance of convenience and inconvenience, directed the parties to maintain status quo till December 12, 1997 after issuing notices upon the Respondents therein.
It appears from the record that on December 12, 1997, the said order was extended till next date viz. February 17, 1998 and on February 17, 1998 the learned appellate court below further extended the initial interim order dated November 11, 1997 till April 27, 1998.
In the meantime on February 18, 1998 the Defendant No. 7 moved the instant revisional application before a learned Judge of this Court, who issued notices upon the opposite parties to show cause why the order impugned should not be set aside and at the same time stayed the operation of the order dated ''November 11, 1997 as extended from time to time'' until further orders.
After hearing Mr. Mukherjee in support of this application and Mr. Roychowdhury appearing on behalf of the opposite party No. 1 and after going through the materials on record including the plaint of the instant suit as well as the plaint and the final judgment and decree of the earlier suit for specific performance of contract which were placed before this Court, I find that there is no illegality or material irregularity in the order impugned herein justifying interference u/s 115 of the Code of Civil Procedure.
It may be mentioned here that although the learned District Judge while issuing ad interim order of status quo in the said Misc. Appeal issued notice upon the present Petitioner as well as other Respondents to showcause why there should not be an order of injunction during the pendency of the appeal, instead of showing any cause, the Respondent No. 7 therein has straightway preferred the instant revisional application before this Court. It is now settled law that if any ad interim order of injunction or an order of status quo is granted by a Court after issuing notice upon the other party, such an aggrieved person has threefold remedies available. Firstly, it can file showcause pointing out that the order of injunction should not be passed. Secondly, it can file application for vacating the ad interim order if such an order was obtained by suppressing of material fact or such order should not have been passed in view of its defence. The said party can also straightway go to the higher forum provided it can satisfy the higher court that even if the statements made in the body of the application for injunction are true, such party is not entitled to get an order of ad interim injunction. In the instant case, the Petitioner has taken the third path by filing revisional application without showing any cause.
In my opinion, if the statements, made by the opposite party No. 1 are true, in that event, the possession of the opposite party No. 1 cannot be disturbed by virtue of a decree for specific performance of contract obtained by the opposite party No. 7. After from that, from the averment made in the plaint of the instant suit, I find that a strong prima facie case has been made out and as such, in my opinion, the learned District Judge after admission of the said appeal rightly passed the order of status quo otherwise the appeal would have become infructuous if in the meantime the opposite party No. 1 was dispossessed from the property.
It is now settled position of law that a revisional court should not interfere with the discretionary order passed by the learned Court below after application of the appropriate principle of law simply because from the self-same material another view is possible. As mentioned earlier, in the instant case the learned District Judge found prima facie case in favour of the opposite party No. 1 and the balance of convenience and inconvenience and the question of irreperable loss and injury were also taken into consideration while granting order of status quo. Therefore, there was no illegality in the order impugned herein.
The revisional application is therefore devoid of any merit and is dismissed.
Re.: Application for vacating interim order dated February 18, 1998 passed by Justice Tewari being C.A.N. No. 4270 of 1998.
In view of the fact that I have already disposed of the main revisional application by dismissing the same, this application which was pending from June 1, 1998 has become infructuous and is disposed of accordingly.
Re.: Application for necessary order of restoration of possession being C.A.N. No. 9298 of 1999.
As mentioned earlier, while entertaining this revisional application Tewari, J. on February 18, 1998 stayed the operation of the order dated November 11, 1997 ''as extended from time to time'' until further orders. It appears from the record of the learned Court of appeal below that when the order of Justice Tewari was communicated to the learned District Judge, in view of such order he refused to extend the aforesaid interim order-of status quo any further and at the same time stayed the operation of the order of status quo earlier granted by him. Thus, in view of absence of any status quo order, the Petitioner herein filed an application before the learned executing Court for execution of the decree for specific performance of contract obtained by him and in the said execution case not only prayed for execution of a sale deed but also for delivery of possession of the disputed property although the court did not pass such decree and ultimately got possession of the said property in execution of such decree on July 28, 1999 when the application for vacating interim order dated February 18, 1998 being C.A.N. No. 4270 of 1998 was pending. In this application as well as in the other application being C.A.N. No. 4270 of 1998 the opposite party No. 1 has alleged that although he lodged a caveat in the matter and an endorsement to that effect was also given by the officer concerned, the learned advocate for the Petitioner did not serve the copy of the revisional application upon the learned advocate for the caveator before moving the application before Justice Tewari nor did he draw the attention of the Court that a caveat has been lodged and thus obtained the interim order dated February 18, 1998 by practising fraud upon Court. According to the opposite party No. 1/applicant, the said interim order ought to have been recalled being in violation of the Caveat Rule framed by this Court and to that effect an application for recalling being C.A.N. No. 4270 of 1998 was also pending.
Mr. Mukherjee, the learned advocate appearing on behalf of the Petitioner submits that his junior did not notice the endorsement given by the department and as such at the time of moving the application, attention of the court was not drawn to the fact that the caveat has been lodged. Mr. Mukherjee, however, tried to justify the passing of the stay order on the allegation that although no notice was given, since the matter was appearing in the list, it should be construed to be a notice, notwithstanding the fact that the copy of the application was not served upon the learned advocate for the caveator. Mr. Mukherjee submits that in this case even if the court finds that the order was obtained in violation of the Caveat Rule no order of restoration should be passed because his client obtained possession of the property not in view of stay order granted by Justice Tewari but by virtue of subsequent order vacating status quo by the learned District Judge.
After hearing the learned advocate for the parties I find that in view of the Division Bench decision of this Court in the case of Sukumar Roy and Another Vs. Pratul Kumar Roy, , the said order was improperly taken and the court should have immediately withdrawn such order once attention of the court was drawn such order. In this connection Mr. Mukherjee has relied upon an unreported Division Bench decision dated January 24, 1994, I find from the said decision that a revisional application was moved against an order which was passed in ignorance of a caveat lodged by the Petitioner therein. Subsequently, the learned trial Judge heard the parties afresh and modified the initial order and directed both the parties to maintain status quo. Under the aforesaid circumstances, the Division Bench did not interfere with the said order with a direction to dispose of the injunction application positively by a date.
Therefore, the said decision is of no avail to the Petitioner herein.
Similarly, I do not find any foce in the contention of Mr. Mukherjee that his client did not get possession by virtue of stay order granted by Justice Tewari but the same was obtained subsequently when the learned District Judge refused to grant further order of status quo. As indicated earlier, Justice Tewari did not merely pass an order of stay of operation of the order dated November 11, 1997 but passed the following order:
the operation of the impugned order dated November 11, 1997, as extended from time to time, shall remain stayed until further orders.
The learned District Judge, it appears from the order-sheet, refused to grant further order of status quo in view of such order passed by Justice Tewari. Therefore, the order of status quo was vacated in view of the interim order granted by Justice Tewari.
I, however, find that ultimately the revisional application having been dismissed, it is the duty of the Court to undo the wrong that has been done to the opposite party No. 1 for staying the operation of the order impugned apart from other reason. AIR 1997 993 (SC) .
Moreover, it was not only the duty of the Petitioner to point out to the court that a caveat has been lodged, there was also mistake on the part of the court in ignoring the certificate of caveat given by the department. Therefore, in view of the Division Bench decision in the case of Sukumar v. Pratul Supra, the stay order ought to have been recalled much earlier when the application for vacating interim order was pending from June 1, 1998.
Over and above, after going through the plaint and the decree of the earlier suit for specific performance of contract I find that although prayer for recovery of possession was prayed as alternative to the prayer for confirmation of possession but ultimately in the decree, recovery of possession was not granted. The court only passed a decree for confirmation of possession. It is beyond my comprehension how and the learned Executing Court could allow the prayer of recovery of possession when such decree was not granted. If some prayer is made, in the plaint but that is not specifically granted, according to law, it should be presumed that such prayer has been refused. Therefore, the learned executing court also could not give relief of recovery of possession.
Mr. Mukherjee further placed before me the following decisions for the purpose of resisting this application as well as the main revisional application;
1) Sati Rani Sen (Smt) Vs. Indian Standard Casting Co. and Another,
2) Mahadeo Savlaram Shelke and Others Vs. Puna Municipal Corporation and Another,
3) Budhia Swain and Others Vs. Gopinath Deb and Others,
4) Sm. Dhiraj Bala Karia Vs. Jethia Estate Pvt. Ltd.,
5) Babu Lal Vs. Hazari Lal Kishori Lal and Others,
6) State Bank of Saurastra v. Chittaranja R. Raja AIR 1980 S.C. 1258 para. 23
7) Rup Chand Gupta Vs. Raghuvanshi Private Limited and Another,
8) Pandurang Dhoni Chougule Vs. Maruti Hari Jadhav,
In the case of Sati Rani Sen (Smt) Vs. Indian Standard Casting Co. and Another, the Apex Court in the fact and circumstances of the said case appointed the Appellant as Receiver to hold possession even though it was found that the Respondent was dispossessed illegally. Mr. Mukherjee prayed before this Court for appointing his client as receiver and for passing a direction upon the Petitioner to handover possession to the opposite party No. 1 if his suit succeeds. In the case before Apex Court, Appellant was undisputedly an owner and the Respondent''s right was yet to be adjudicated. But in the instant case, the Petitioner can claim title by virtue of the decree provided the property was not a thika tenanted property. Moreover, to allow the Petitioner to retain possession means this Court will virtually allow a wrong door to take advantage of his own wrong. Moreover, the Apex Court in that case pointed out that normally court should order restoration in this type of cases but that case was a special one. In this case, I do not find any special feature in favour of the Petitioner so as to adopt the course taken in Sati Rani''s case Supra.
In the case of Mahadeo v. Pune Municipal Corporation Supra, the Apex Court held that the injunction should be granted against lawful owner at the instance of a trespasser. Therefore, the principles laid down therein has no application to the fact of the present case where a tenant of an alleged thika tenant is disputing the authority of the owner of the land to transfer the property, after vesting of the superior landlord''s interest.
The case of Budhia Swain Supra in my opinion, has no application to the fact of the present case. In the said case, the Supreme Court pointed out the circumstances under which a court may recall its order and fraud or collusion between the parties and mistake on the part of courts were held to be the instances when a court can recall its order.
Sm. Dhiraj Bala v. Jethia Estate Supra is an authority holding that a suit for specific performance of contract with a prayer or putting the Plaintiff into possession, does not come u/s 7(v) of the West Bengal Court Fees Act. The said decision therefore does not support the contention that on executing court can deliver possession even though prayer for recovery of possession was not granted by decree.
In Babu Lal v. Hazari Lal Supra the High Court modified the decree for specific performance of contract by incorporating the prayer for recovery of possession. It was held that such amendment was permissible. In the present case, however, the Petitioner prayed for recovery of possession in the plaint as alternative relief but the same was not granted and instead a decree for confirmation of possession was given. In such a case the Petitioner cannot get recovery of possession so long the decree is not amended. Therefore, Babulal''s case is of no avail to the Petitioner.
In State Bank of Sourastra Supra, the question was which court could grant restitution in the event the decree is reversed in appeal. Therefore, the said question is not relevant in the present case.
In R.C. Gupta Supra the Supreme Court held that a sub-lessee cannot challenge a decree passed against the lessee as collusive because such decree is binding upon him. But the said principle cannot have any application the case in hand where the Plaintiff has alleged collusion in the sense that fact of thika tenancy has been suppressed in order to avoid vesting thereby prejudicing the right of the Plaintiff who is a bharatia under the thika tenant.
Pandurang D. Chougule Supra rather goes against the Petitioner. The Apex Court in that case reminded the narrow scope of Section 115 of the Code and held that even erroneous decision on a question of law reached by court below which has no relation to the question of jurisdiction of that court cannot be corrected in a Civil revisional application.
Therefore, the aforesaid decisions have no application to the facts of the present case.
I, therefore, allow this application by directing the Petitioner to handover possession of the disputed property in favour of the opposite party No. 1 within a fortnight from date.
The revisional application is dismissed and this application is thus allowed with costs which I assess at 200 Gms.