Rajasthan Fertilizers & Chemical ... vs M/S. Bengal Industrial ...
2022 Latest Caselaw 5298 Cal

11.08.2022
Court No.32
 rpan/09
                              FMAT 148 of 2022
                                      +
                           IA No.: CAN 1 of 2022
                                     and
                            IA No.: CAN 2 of 2022
               Rajasthan Fertilizers & Chemical Corporation Ltd.
                                  - Versus -
                 M/s. Bengal Industrial Corporation & Another

                    Mr. Sabyasachi Choudhury,
                    Ms. Urmila Chakraborty,
                    Mr. Amit Meharia,
                    Ms. Paramita Banerjee,
                    Ms. Subika Paul
                                   ... for the Appellant.
                    Mr. Siddhartha Banerjee,
                    Mr. Soumya Ray,
                    Mr. Suman Banerjee,
                    Ms. Jyoti Rauth,
                    Ms. Amrita Chakraborty
                              ... for the Respondent no.1.

In Re.: CAN No. 2 of 2022

The present appeal has been filed challenging the

judgment and order dated 23rd November, 2021 passed by

the learned Judge, VII-Bench, City Civil Court at

Calcutta.

In connection with the present appeal an

application for condonation of delay, being IA No.: CAN

No. 2 of 2022, and an application for stay, being IA No.:

CAN No. 1 of 2022, has been filed by the appellant.

Upon hearing Mr. Choudhury, learned advocate,

representing the appellant and Mr. Banerjee, learned

advocate, appearing for the respondent no.1, we are

satisfied with the explanation given in the application for

condonation of delay and accordingly, condone the delay

in filing the present appeal and allow the application for

condonation of delay.

The application for condonation of delay, being I.A.

No. CAN 2 of 2022, is, accordingly, disposed of.

As Mr. Banerjee, learned advocate, has entered

appearance on behalf of the respondent no.1, service of

notice of appeal upon the said respondent is dispensed

with.

The appeal has been filed challenging an

interlocutory order passed in connection with a suit for

declaration of tenancy right and other consequential

reliefs filed by the respondent no.1 against the appellant

herein who is the defendant no.1 in such proceedings.

Considering the nature of challenge in the present appeal,

we proceed to hear out the appeal. By consent of the

parties, the appeal is taken up for final hearing.

Mr. Choudhury, learned advocate appearing for the

appellant/defendant no.1 submits that the respondent

no.1 herein has instituted a suit, being Title Suit No.552

of 2020 before the learned 7th Bench, City Civil Court at

Calcutta inter alia praying for a declaration that the

plaintiff is a monthly tenant in respect of the eastern side

first floor of premises no.19, R. N. Mukherjee Road, Police

Station: Hare Street, Kolkata - 700 0001 having actual

measurement of 1980.64 sq. ft., as described in the

schedule of the plaint. In connection with the aforesaid

suit, an application under order XXXIX Rules (1) and (2)

of the Code of Civil Procedure was filed. On an appeal

preferred from a refusal to pass an ex parte ad-interim

order, this Hon'ble Court by an order dated 26 th August,

2020 passed in FMAT 358 of 2020 was inter alia pleased

to observe that the plaintiff shall not be evicted from the

suit property or their possession interfered with, save by

the authority of law. The aforesaid appeal was disposed of

with a direction to expedite hearing of the injunction

application.

The injunction application has, however, been

finally disposed of by order no. 24 dated 23rd November,

2021. The aforesaid order is impugned in the present

appeal.

It appears that by the order impugned, the

injunction application, filed by the plaintiff in Title Suit

no.552 of 2020 (respondent no.1 herein), has been

disposed of inter alia by recording that 'The defendants

are restrained from interfering with the possession of the

plaintiff in respect of the Suit premises till disposal of the

suit.'

Mr. Choudhury submits that the appellant has

already filed a suit, being C. S. No. 26 of 2021 before this

Hon'ble High Court at Calcutta inter alia praying for a

decree for recovery of physical and vacant possession in

respect of ALL THAT one office block measuring 2400 sq.

ft. more or less on the 1st floor at the eastern building

premises no.19, R. N. Mukherjee Road, lying and situated

within the ambit of Hare Street police station, Kolkata -

700001. He submits that an application under Chapter

XIII A of the Original Side Rules has been filed, the

respondent no.1 herein is taking shelter of the aforesaid

order, impugned in this appeal, to resist the suit and/or

any decree for recovery of possession that may be passed.

The impugned order seriously affects and

prejudices the eviction proceedings, the same may lead to

unnecessary conflict of judicial opinion and the order

does not provide for any reasons.

Mr. Banerjee, learned advocate appearing for the

respondent no.1 submits that the respondent no.1 has

already filed an opposition to the application under

Chapter XIII A filed by Mr. Choudhury's client. He further

submits that there is no illegality in the order passed by

the learned court below which is impugned in the present

appeal. He argues that this order cannot stand in the

way of Mr. Choudhury's client obtaining any decree in its

favour, if otherwise Mr. Choudhury's client is entitled to,

in law.

Heard the learned advocates appearing for the

respective parties and considered the pleadings on record

including the impugned order. We find, that the appeal

being FMAT 358 of 2020 was disposed of by the order

dated 26th August, 2020. We find that by the aforesaid

order this Hon'ble Court while admitting an appeal

against the refusal to pass an ex parte ad-interim order

observed "that the appellant/plaintiff shall not be evicted

from the suit property or their possession interfered with

save by authority of Law." The appeal was disposed of

directing the learned court below to expedite hearing of

the injunction application.

The learned VII-Bench, City Civil Court at Calcutta

has since by the order impugned disposed of the

injunction application. Even after noting and discussing

the said order passed by the Hon'ble High Court in FMAT

No. 358 of 202, in the order impugned the Learned Judge

appears to have omitted the rider to the effect "that the

appellant/plaintiff shall not be evicted from the suit

property or their possession interfered with save by

authority of Law."

We are of the opinion that no blanket order of

injunction can be passed restraining a party form being

evicted. Accordingly, we modify the order passed learned

VII-Bench, City Civil Court at Calcutta and direct that the

order impugned shall be read to mean and include that

the plaintiff/respondent no.1 herein shall not be evicted

from the suit property or their possession interfered with

save by authority of law.

Since affidavit has not been called for, the

allegations made in the stay application shall be deemed

to have been denied.

Since no other points have been raised by the

parties, no further order needs to be passed in the

present appeal.

The appeal, being FMAT 148 of 2022 and the stay

application, being IA No.: CAN 1 of 2022 are disposed of.

Urgent photostat certified copy of this order, if

applied for, be supplied to the parties, upon compliance of

all requisite formalities.

(Raja Basu Chowdhury, J.) (Tapabrata Chakraborty, J.)