Satyajit Patra @ Satya Patra And ... vs Babu Patra
2023 Latest Caselaw 3716 Cal

June 8, 2023 Sl. No.10 Court No.19 s.biswas CO 1677 of 2023

Satyajit Patra @ Satya Patra and another vs.

Babu Patra

Mr. Dhananjay Banerjee Mr. Surojit Basu Ms. Ranu Mandal Ms. Oindrila Ghosh ... for the petitioners Mr. Sukanta Das ... for the opposite party

The revisional application is directed against an

order passed by the learned District Judge, Paschim

Medinipur in Misc. Appeal No.21 of 2023. By the

said order, the learned lower appellate court upheld

the order of mandatory injunction passed by the

learned Civil Judge (Junior Division), 3rd Court,

Paschim Medinipur in Title Suit No.34 of 2017.

The petitioners are aggrieved because the

learned appellate court failed to appreciate the

factum of possession of the petitioners in the suit

property and also the fact that an earlier application

for restoration of possession was disposed of without

any mandatory directions. The learned advocate for

the petitioners submits that the subsequent order

would be barred by the principles of res judicata.

The fact of the case in brief is that the plaintiff

filed a suit for declaration, injunction and

alternatively recovery of possession, in the court of

learned Civil Judge (Junior Division), 3rd Court,

Paschim Medinipur. Upon contested hearing, the

application for temporary injunction was disposed of

by restraining and prohibiting the defendants/

petitioners from interfering with the peaceful

possession of the plaintiff in respect of the suit

property, till the disposal of the suit. The defendants

neither preferred any appeal from the said order, nor

did the defendants file an application under Order

39 Rule 4 of the Code of Civil Procedure for variation,

vacation or modification of the order of temporary

injunction.

On or about August 19, 2022, the defendants

trespassed into the property and forcefully

dispossessed the plaintiff and their aged parents

from the suit property.

The plaintiff filed an application seeking

restoration of possession for the first time on

September 8, 2022. Thereafter, the plaintiff again

filed another application for restoration of possession

on January 16, 2023. In the said application, the

plaintiff had categorically mentioned the factum of

his dispossession along with his aged parents. It was

stated that the plaintiff and his parents were living

in a makeshift arrangement. The father of the

plaintiff was 70 years old and the mother was about

65 years and partially paralysed after suffering a

cerebral attack. That the makeshift arrangement

was a tarpaulin shed structure. A police report had

been called for by the learned trial judge.

The defendants denied such allegation and

submitted that they had been in possession of the

property in question for the last 20 years and the

defendants furnished certain documents in support

of their case.

On contested hearing, the learned trial judge

allowed the application for restoration of possession

and directed the Officer-in-Charge, Debra Police

Station to assist the plaintiff in getting back

possession. The learned trial court held that once

there was an order of restraint by way of temporary

injunction dated January 3, 2019 and an order of

implementation of the same through police help

dated October 7, 2021, the parties against whom the

order had been passed, should comply with the

same. In order to maintain sanctity of an order of the

court, proper orders could be passed. If a party was

allowed to disobey the order, as was in the present

case, the same would amount to abuse of the

process of court and the civil court would be

rendered powerless if no steps were taken to check

the atrocities of the defendants which were

committed in violation of the order of injunction.

Considering the fact that the plaintiff had

sufficient documents to show his possession and

further considering the fact that the parents of the

plaintiff were old and ailing and could not live in a

makeshift tarpaulin shed, the court held that if the

atrocities of the defendants were not checked, then it

would cause irreparable loss and injury to party

dispossessed and result in miscarriage of justice.

Such order dated February 1, 2023 was

challenged by the petitioners/defendants in Misc.

Appeal No.21 of 2023. The appeal was heard by the

learned District Judge, Paschim Medinipur and the

order of the learned Trial Judge was upheld.

The learned lower appellate court framed the

following issues:

(i) Whether the learned Trial Court has erred

in allowing the petition for mandatory

injunction with a direction to restore

possession.

(ii) Whether the learned Trial Court should

have gone slow in granting the order of

mandatory injunction against the

defendants.

(iii) Whether the impugned order was required

to be interfered with, by the appellate

court

The learned lower appellate court discussed the

fact in details and arrived at a conclusion that the

learned trial court was justified in passing an order

of mandatory injunction, thereby, directing the

defendants to restore possession to the plaintiff and

the parents with a direction upon the police

authorities to aid the plaintiff in such process of

restoration of possession.

The points which heavily weighed upon the

learned lower appellate court were as follows:

a) Order 39 Rules 1 and 2 of the Code of Civil

Procedure empowered the learned trial judge

to grant a temporary injunction to restrain a

party from disturbing the peaceful

possession of the plaintiff in the suit

property and accordingly the trial court

restrained the defendants from disturbing

the possession of the plaintiff in respect of

the suit property;

b) Section 94(e) of the Code of Civil Procedure

empowered the court to pass interlocutory

orders from time to time which would be

just, proper and convenient;

c) There was no, prima facie, confusion with

regard to the fact that the defendants did not

have any right, title and interest in the

property;

d) The learned trial judge had, prima facie,

found possession of the plaintiff to be in

possession. The title of the plaintiff was on

the basis of a deed of gift executed by the

parents in favour of the plaintiff. The record

of rights were also in the name of the

plaintiff;

e) The order of injunction was neither

challenged by way of an appeal nor did the

defendants file an application under Order

39 Rule 4 of the Code of Civil Procedure for

variation, vacation and modification of the

said order;

f) On August 18, 2022, the plaintiff along with

his aged and ailing parents were

dispossessed and the police report supported

such contention. It was in consonance with

public policy that an order of injunction

must be obeyed by the parties or else the

same would amount to miscarriage of justice

and the courts would be rendered powerless.

With regard to possession of the defendants in

respect of the suit property, the learned lower

appellate court observed as follows:

a) The trade registration certificate dated

February 11, 2023, receipts of trade licence fee dated

September 16, 2019, February 3, 2021 and July 5,

2021, did not mention the address of the suit

property.

b) Form No.-II of the panchayat dated

October 17, 2019 and the tax receipt dated August

14, 2022, June 27, 2021, February 3, 2021 and

August 30, 2019, did not have any description of the

suit property.

c) The meter reading card did not contain the

address of the suit property.

d) The documents which were submitted by

the defendants in proof of his possession were either

created or obtained after the date of dispossession.

Most of the documents were bereft of any specific

address of the suit property.

e) The police report also indicated that the

defendants had refused to comply with the order of

the learned Civil Court, despite efforts having been

made by the police authorities. Whereas, the

documents filed by the plaintiff indicated that the

plaintiff had been gifted the property by his parents.

The record of rights also indicated that the plaintiff

was in possession. The earlier application for

restoration of possession before the learned trial

court had not been disposed of on merits.

Referring to the decision of Hon'ble Apex Court,

in the case of Tanusree Basu and ors. v. Ishani

Prasad Basu and ors. reported in AUR 2008 SC

1909 the learned appellate court held that a party to

a suit could not take law in his hands during the

pendency of the suit and thereby dispossess a co-

sharer or any other person in possession. If such

situation occurs either in violation of an order of

injunction or otherwise, the court indisputably

would have the jurisdiction to restore the parties

back to the same position.

In the matter of Manash Kumar Maji and ors

and Suman Maji and another reported in 2019 (1)

ICC 829, it was held that the court had every

authority to invoke its inherent jurisdiction under

Section 151 of the Code of Civil Procedure to ensure

compliance and adherence to its orders.

Referring to the decision of Sujit Pal v. Prabir

Kumar Sun and ors. reported in AIR 1986

Calcutta 220 the learned appellate court held that

the inherent power of the court to restore the

possession to a party who was dispossessed during

the pendency of the suit by another party, was in

addition to the provision of Order 39 Rule 2A of the

C.P.C.

Having considered the above aspects and the

orders impugned, this court does not find any reason

to interfere with the same. The power of a revisional

court is limited. The revisional court can only

interfere when an order is either perverse or suffers

from lack of jurisdiction.

According to this court, an order is perverse on

the following grounds:

a) if such order has been passed contrary to the

evidence;

b) if such order has been passed contrary to

law;

c) if the order has been passed without

considering the material facts.

In this case, the learned lower appellate court

entered into the factual aspects and also discussed

the law. The learned lower appellate court had

factually found that the police report supported the

version of the plaintiff. That the police report

indicated that the plaintiff was living with his aged

and ailing parents in a makeshift tarpaulin shed

near the roadside shop. That the order of injunction

clearly restrained the defendants from interfering

with the possession of the plaintiff in respect of the

suit property. The defendants did not take any

recourse to the remedies under the law by

challenging such order of injunction. The factum of

dispossession was also mentioned in the police

report. The documents which were produced by the

defendants in support of their possession, were

examined and it was found that there was no

evidence in support of such contention of the

defendants.

The learned trial court had rightly invoked the

inherent power under Section 151 of the Code of

Civil Procedure to do substantial justice by restoring

the possession to the plaintiff and his parents,

failure of which would amount to miscarriage of

justice and the sanctity of the order of the court

would be completely negated and destroyed.

In the matter of Bansidhar Sharma v. State

of Rajasthan reported in (2019) 19 SCC 701, the

Hon'ble Apex Court held as follows:-

"18. In the present facts and circumstances, the respondents have not committed any error in taking decision to call upon the appellant for handing over possession of the subject property at least after the special leave petition filed at the instance of the appellant came to be dismissed under order dated 17-5-2018 and in sequel thereto, there was no other remedy left with the respondents than to file an application under Section 151 CPC before the High Court for restoration of possession of the subject property.

19. After we have heard the parties, find no error being committed by the High Court in passing of the order dated 21-8-2019 directing the appellant to hand over possession of the subject property in question which was handed over to the appellant under the interim orders passed by the High Court pending SB Civil First Appeal No. 86 of 1979 which finally came to be dismissed vide judgment dated 20-4-2018."

In the matter of Sushil Kumar Dey Biswas v.

Anil Kumar Dey Biswas reported in (2015) 3 SCC

461, the Hon'ble Apex Court held as follows:-

"6. In the application filed under Section 151 CPC, the appellants have alleged as under:

"... in June 2011. ... they were forcefully dispossessed from the shop room of the Schedule B property without due process of law ... the matter was informed for the first time to the local MP who requested the local police to look into the matter, but instead to make an enquiry the plaintiff again dispossessed the defendants from the possession of the first floor room by chopping off the steps of the wooden staircase that leads to the first floor room. The rooms on the first floor and the shop room in the ground floor are in absolute occupation of Defendant 2 and Defendant 1 was in possession of the other room on the ground floor from where he was forcefully dispossessed in the year 2005...."

7. The courts below dismissed the application filed under Section 151 CPC mainly on the ground that for the alleged dispossession of the appellants from the suit property in June 2011, the application was filed only on 4-1-2012. According to the appellant-defendants, the respondent-plaintiff is a very influential person and since the appellants were threatened by the men of the respondent, they could not immediately lodge the complaint. We are not inclined to go into the merits of the rival contentions.

8. Admittedly, the suit was filed for ejectment indicating thereby that at the time of filing the suit in the year 2004, the defendants were in possession of the entire suit B schedule property. Application for restoration of possession of the room on the first floor and the shop room on the ground floor was negatived by the courts below merely on the ground of delay. Without going into the merits of rival contentions of both the parties in order to meet the ends of justice, in our view, possession of the first floor along with staircase and the shop room on the ground floor should be restored to the appellant-defendants. Delay in filing the application for restoration of possession cannot be the reason for declining relief.

9. Insofar as another room on the ground floor on the western side, as seen from the averments in the application as extracted above, even according to the appellants they were evicted in the year 2005. For a long time, the defendants have neither raised any objection nor filed any application in the court at the relevant time

regarding the said room in the ground floor. The respondent-plaintiff contends that the defendants have voluntarily vacated the premises and the defendants have purchased a flat at Nadanagore, Belghoria and have left the suit property at their own will. Having regard to the rival contentions, in our view, so far as the restoration of room on the western side of the ground floor is concerned, the same can be decided along with the suit.

10. In the result, the impugned order of the High Court is set aside and the appeal is allowed. The respondent-plaintiff is directed to restore the staircase and the possession of one room, one bath and privy on the first floor and shop room on the ground floor to the appellant- defendants within a period of six weeks from the date of receipt of copy of this order. On failure to restore the possession, the appellant- defendants are at liberty to approach the trial court which shall pass appropriate order for ensuring compliance with the direction of this Court. Insofar as one room on the western side of ground floor, the same shall be decided along with the suit. We have not expressed any opinion on the merits of the rival contentions of the parties. The trial court shall expedite the trial of Title Suit No. 196 of 2004 and dispose of the same at an early date. Stay of further proceedings of the suit granted vide this Court order dated 30-9-2013, stands vacated."

Under such circumstances, the revisional court

must not interfere with the order of the learned lower

appellate court.

The revisional application is dismissed.

All the parties are directed to act on the basis of

the server copy of the order.

(Shampa Sarkar, J.)