Brajen Biswas vs Gitumoni Hazarika And 2 Ors
2022 Latest Caselaw 2814 Gua

                                                                   Page No.# 1/7

GAHC010284802019




                         THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                           Case No. : CRP(IO)/383/2019

          BRAJEN BISWAS
          S/O- LT. JAGABANDHU BISWAS, R/O- W/NO. 10, RAINAPATHAR,
          MORIGAON TOWN, P.O. AND P.S. MORIGAON, ASSAM, PIN- 782105.


          VERSUS

          GITUMONI HAZARIKA AND 2 ORS.
          W/O- LT. CHAMPAK HAZARIKA, R/O- WARD NO. 1, MORIGAON TOWN, P.O.,
          P.S. AND DIST.- MORIGAON, ASSAM, PIN- 782105.

          2:KAUSHIK HAZARIKA
           SO- LT. CHAMPAK HAZARIKA
           R/O- WARD NO. 1
           MORIGAON TOWN
           P.O.
           P.S. AND DIST.- MORIGAON
          ASSAM
           PIN- 782105.

            3:SAJU HAZARIKA (MINOR)
             SO- LT. CHAMPAK HAZARIKA
             NO. 3 IS A MINOR BEING REP. BY HIS MOTHER
             PETITIONER NO. 1
             R/O- WARD NO. 1
             MORIGAON TOWN
             P.O.
             P.S. AND DIST.- MORIGAON
            ASSAM
             PIN- 782105
Advocate for the Petitioner : MR. T ISLAM

Advocate for the Respondent : MR. A CHAMUAH
                                   Page No.# 2/7




Linked Case : CRP(IO)/392/2019

BRAJEN BISWAS
S/O- LT JAGABANDHU BISWAS
R/O- WARD NO. 10
RAINAPATHAR
MORIGAON TOWN
P.O.
P.S. AND DIST- MORIGAON
ASSAM
PIN- 782105


VERSUS

GITUMONI HAZARIKA AND 2 ORS.
W/O- LT CHAMPAK HAZARIKA
R/O- WARD NO.1
MORIGAON TOWN
P.O.
P.S. AND DIST- MORIGAON
ASSAM
PIN- 782105

2:KAUSHIK HAZARIKA
S/O- LT CHAMPAK HAZARIKA
 R/O- WARD NO.1
 MORIGAON TOWN
 P.O.
 P.S. AND DIST- MORIGAON
ASSAM
 PIN- 782105
 3:SAJU HAZARIKA
S/O- LT CHAMPAK HAZARIKA
 BEING MINOR REP. BY HIS MOTHER
THE PETITIONER NO.1
 R/O- WARD NO.1
 MORIGAON TOWN
 P.O.
 P.S. AND DIST- MORIGAON
ASSAM
 PIN- 782105
 ------------

Page No.# 3/7

Advocate for the Petitioner : Mr. T. Islam, Advocate.

Advocate for the Respondents : Mr. A. Chamuah, Advocate.

                                BEFORE
                 HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                      Date of Hearing        : 08.08.2022

                      Date of Judgment       : 08.08.2022

                              JUDGMENT AND ORDER (ORAL)

Heard Mr. Mr. T. Islam, the learned counsel for the petitioner and Mr. A. Chamuah, the learned counsel appearing on behalf of the respondents.

2. Both the petitions under Article 227 of the Constitution of India are taken up together as these two petitions relate to the same suit proceedings.

3. The facts of the instant petitions are that the petitioner herein as plaintiff had filed a suit being T.S. No.41/2018 seeking a declaration that the petitioner is the tenant under the defendants/respondents herein with respect to the suit premises and he is not to be evicted without following the due process of law; for a decree for permanent injunction restraining the defendants from inducting any person or persons in the suit premises other than the plaintiff and also from evicting the plaintiff from the suit premises without due process of law.

4. In the said suit, the suit premises has been described in Schedule-A, which is quoted herein below:-

SCHEDULE A

The shop premise No.-2 from Eastern side of "Swarna Enclave" (name of the new market) (old name was Hazarika Market) situates over Dag No.-2282 of P.P. No.- 99(old) 1977 (New) at Morigaon Revenue Town Kissam under Mouza-Morigaon, Ward No.-1 Morigaon Municipal Board, P.O. & P.S.-Morigaon, Dist.-Morigaon (Assam), Municipality holding No.-1/33(1/245). Bounded by North-land lord, South-main Road Page No.# 4/7

Morigaon, East-Dukur Biswas, West-Critanjali Citass house.

5. Along with the said suit, an injunction application was filed which was registered and numbered as Misc.(J) Case No. 51/2018 seeking a temporary injunction restraining the defendants/ opposite parties, their men and agents from inducting any person or persons in the suit premises other than the plaintiff/petitioner and also from evicting the plaintiff from the suit premises without due process of law during the pendency of the original suit. The respondent Nos.1, 2 & 3, who were the defendants in the suit, filed their written statement as well as their written objection. Amongst others, it was the stand that the suit premises described in Schedule-A to the plaint is no longer in existence as the same has already been demolished, and thereupon, a new construction has already been made. It is the specific stand of the defendants in the written statement and written objection that the plaintiff is presently occupying a room outside the perimeter of the suit land and more particularly, in the land belonging to the Municipal Board of Morigaon. It is on account of the said construction made by the plaintiff, the ingress and egress to the newly constructed building have been affected. The trial court vide an order dated 17.12.2018 granted an injunction in favour of the plaintiff restraining the defendants/ opposite parties from evicting the petitioner from the suit premises during the pendency of the original suit. However, the injunction restraining the opposite parties from inducting any person or persons in the suit premises was not granted in favour of the petitioner. It was further mentioned that the opposite parties were restrained from evicting the petitioner denying his status of tenancy under them until disposal of the original suit.

6. Against the said order dated 17.12.2018, two appeals were preferred. One appeal was preferred by the petitioner which was registered and numbered as Misc. Appeal No.5/2019 and the other appeal was preferred by the respondent Nos.1, 2 & 3 which was registered and numbered as Misc. Appeal No.3/2019. By separate judgments, the First Appellate Court, i.e. the Court of the Civil Judge at Morigaon disposed of both the Page No.# 5/7

appeals. Misc. Appeal No.5/2019 filed by the petitioner was dismissed holding inter- alia that there is no existence of shop No.2 as depicted in Schedule-A after the construction of a new building and as the five rooms already constructed were booked by the different persons, injunction to restrain the respondent/defendant from inducting any person or persons in the suit premises other than the appellant /plaintiff would adversely affect the right of the landlord or respondent/ defendant. Consequently, the First Appellate Court, therefore, dismissed the appeal.

7. In the second appeal, i.e. Misc. Appeal No.3/2019 the First Appellate Court came to a finding that the respondent/plaintiff is occupying a temporary shed constructed over the municipal road in front of the original shop premises. It was further observed that the trial court was not justified in granting the injunction in as much as the basic claim of the plaintiff was on the basis of an amount of Rs.2,00,000/- being deposited as advance. Accordingly, the First Appellate Court, therefore, held inter-alia that though the plaintiff has made a prima-facie case for trial but the plaintiff had failed to show the balance of convenience as well as irreparable loss or injury, if injunction is not granted. Therefore, the order dated 17.12.2018, passed in Misc. (J) Case No.51/2018, was interfered with thereby allowing the appeal.

8. Feeling aggrieved and dissatisfied, the instant two petitions have been filed under Article 227 of the Constitution. CRP(IO) No.383/2019 relates to the dismissal of Misc. Appeal No.5/2019 whereas CRP(IO) No.392/2019 has been filed challenging the order passed in Misc. Appeal No.3/2019.

9. I have heard the learned counsels for the parties and also perused the materials on record. The respondent Nos.1, 2 & 3 herein had filed an additional affidavit on 15.07.2022 thereby admitting that the amount of Rs.2,00,000/- was paid as security deposit by the petitioner and in that regard a room being Room No. 6 has been kept for the petitioner. It was also mentioned that the respondents are still willing to give the Room No.6 to the petitioner on rent at monthly rent of Rs.3,000/- with enhancement for Page No.# 6/7

the first one year and enhancement of 10% from the second year onward. A tentative layout drawing of the building thereof constructed was enclosed as Annexure-A to the additional affidavit wherein it was also indicated where the petitioner is presently in occupation specifically marked as 'A' as well as the Room No.6 reserved for the petitioner provided the petitioner enters into any form of arrangement about payment of monthly rent of Rs.3,000/- for the first year and for enhancement by 10% from the second year onward.

10. Upon perusal of the materials on record, it appears that the specific stand of the petitioner is that the Schedule-A to the plaint still exists wherein the petitioner is still under occupation whereas it is the specific stand of the respondent Nos.1, 2 & 3 that the petitioner is in occupation of a small temporary shed which is situated on the main road, and as such, the question of granting injunction to that effect does not arise.

11. It is also the specific case as could be seen from the respondent Nos.1, 2 & 3 from the additional affidavit that they are agreeable to induct the petitioner as a tenant of Room No.6 at monthly rent of Rs.3,000/- which could be enhanced by 10% from the next year which admittedly the petitioner has refused. Further to that, the learned counsel for the petitioner has failed to show any perversity in the orders passed by the court below in both the appeals. It is, however, the submission of the learned counsel for the petitioner that observation made in the Appellant Court should not affect the petitioner during the course of trial.

12. Taking into consideration that this Court is adjudicating the instant proceedings under Article 227 of the Constitution and the power is circumscribed and the petitioner has been duly offered the Room No.6 to which the petitioner do not agree to take, this Court is not inclined to interfere with the order dated 24.09.2019 passed in both the appeals, i.e. Misc. Appeal No.3/2019 as well as Misc. Appeal No.5/2019 by the Court of the Civil Judge at Morigaon. At a cost of repetition, it is observed that the petitioner herein not been able to show anything which would incline this Court to exercise its Page No.# 7/7

jurisdiction under Article 227 of the Constitution.

13. Before concluding, this Court, however, observes that the observation made in the instant order as well as the order passed by the First Appellate Court, being in relation to the entitlement of the petitioner for injunction, the same shall not prejudice the petitioner at the trial of the suit.

14. With the above observation, the instant petitions stand dismissed. However no cost.

JUDGE

Comparing Assistant