Page No.# 1/7 vs Anita Dey
2023 Latest Caselaw 4770 Gua

Gauhati High Court

Page No.# 1/7 vs Anita Dey on 29 November, 2023

Author: Kalyan Rai Surana

Bench: Kalyan Rai Surana

                                                                   Page No.# 1/7

GAHC010187802023




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

                          Case No. : CRP(IO)/270/2023

         M/S D.S. REALTORS AND 2 ORS
         A PARTNERSHIP FIRM REGISTERED UNDER THE PROVISIONS OF INDIAN
         PARTNERSHIP ACT, 1932, HAVING ITS REGISTERED OFFICE AT A.T. ROAD,
         PANDAV NAGAR, GUWAHATI-781012, P.S. JALUKBARI,DIST.
         KAMRUP(METRO), ASSAM, REPRESENTED BY ITS PARTNERS SRI
         DEBASHISH GHOSE, SON OF SRI SACHINDRA NATH GHOSE AND SRI
         SANJIB BHATTA, SON OF LATE HARENDRA BHATTA.

         2: DEBASHISH GHOSE
          S/O- SRI SACHINDRA NATH GHOSE
          R/O- A.T. ROAD
          PANDAV NAGAR
          GUWAHATI
          P.S. JALUKBARI
          DIST. KAMRUP(M)
         ASSAM
          PIN- 781012.

         3: SANJIB BHATTA
          S/O- LATE HARENDRA BHATTA
          R/O- A.T. ROAD
          PANDAV NAGAR
          GUWAHATI
          P.S. JALUKBARI
          DIST. KAMRUP(M)
         ASSAM
          PIN- 781012

         VERSUS

         ANITA DEY
         W/O- LATE HARU CHANDRA DEY, R/O- QTR NO. 96/B, HILL TOP ROAD, P..S
         JALUKBARI, GUWAHATI, PIN- 781011, KAMRUP(M), ASSAM
                                                                         Page No.# 2/7




Advocate for the Petitioner   : MR G RAHUL

Advocate for the Respondent : MR. S P ROY




                                    BEFORE
                    HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                        ORDER

Date : 29-11-2023

29.11.2023.

Heard Mr. G. Rahul, learned counsel for the petitioners as well as Mr. S.K. Roy, learned counsel for the respondent.

2. By filing this application under Article 227 of the Constitution of India, the petitioners have assailed the appellate Judgment and Order dated 13.07.2023, passed by the learned Additional District Judge No. 3 Kamrup (M), Guwahati in Misc(J) Case No. 97/2021 in Misc(App) No. 93/2021. By the said order, adinterim injunction was allowed by the learned First Appellate Court to restrain the petitioners, theirmen, workmen, agents&associates from doing any construction over the suit land belonging to the respondent and changingthe nature and character of the suit land and also encumbering the suit land in any manner till conclusion of trial of T.S. No. 61/2018, pending before the Court of learned Civil Judge No. 3, Kamrup (M) Guwahati.

3. The petitioners are carrying out land development and construction of apartment/flats on the land of the respondent and other owners of plot of land by virtue of registered agreement dated 19.02.2015. The respondent, with a grievance that the construction has not come up within the agreed time, and on other grounds as stated in the plaint, the petitioners had filed a suit against the Page No.# 3/7

respondent for cancellation of the registered agreement, recovery and possession and permanent injunction which was registered as T.S. No. 61/2018.The said suit is pending for trial before the Court of learned Civil Judge No. 3,Kamrup (M) Guwahati. Along with the suit an injunction application was preferred by the respondent under order XXXIX Rule 1 & 2 read with section 151 CPC which was registered as Misc(J) case No. 135/2018. On refusal of injunction by the learned trial Court, an appeal was preferred which was registered as Misc Appeal No.93/2021. By the impugned order, the learned First Appellate Court had granted injunction. Against the said order this revision petition has been preferred by the petitioners/defendants.

4. The learned counsel for the petitioners has submitted that the learned First Appellate Court had relied on statements made in the memo of appeal which are not pleaded in the plaint or in the injunction application and therefore, the learned First Appellate Court had committed gross jurisdictional error in granting injunction based on facts which are foreign to the pleadings made before the learned trial Court. It is also submitted that there is already a huge delay in the construction of the project and there would be further delay in the completion of the project in view of the injunction. It is submitted that the plot of land of the petitioner in which the proposed construction are coming out is in 6 Blocks which for the sake of convenience has been referred to as Block-A to Block-F. It is his submission that if any portion is incomplete, there would be difficulty in timely completion of the project.

5. The learned counsel for the respondent by referring to the affidavit-in- opposition filed in this matter has submitted that notwithstanding the agreement between the parties, the construction project of the petitioners was not registered with the Real Estate Regulatory Authority(RERA) and he has also Page No.# 4/7

referred to an inspection report dated 01.04.2023 by the RERA authority, GMC and GMDA where the present status of construction as on the date of the report was stated as follows:

Present Status of Construction:

Name of the Total No of Slab to Total No of Slab Total No of Slab Status of other Block be constructed constructed yet to be construction work constructed A 8 6 2 Up to 5th floor completes

C 8 5 3 Up to 4th floor complete

6. Accordingly, it is submitted that the present status of construction is that the project is still incomplete. Reference has been made to the action taken by the RERA authority and facts relating to another plot holder which is not referred to herein because of the same was not being part of pleadings before the learned trial Court.

7. It is submitted that there has been inordinate delay in carrying out the construction of apartment/flats on land of the respondent. Accordingly, the learned counsel for the respondent has justified the order of ad interim injunction granted by the learned First Appellate Court.

8. Therefore, the only point for determination which arise in this revision as to whether the appellate order of injunction is liable to be interfered with in this application filed under Article 227 of the Constitution of India.

9. It is seen that in the written statement filed by the respondent, the subsequent events which have taken place at the instance of RERA have not Page No.# 5/7

been pleaded. Therefore, the Court finds force in the submission made by the learned counsel for the petitioners that the averments made by the respondent before the appellate Court was not a case pleaded before the learned trial Court. In this regard the learned counsel for the petitioners has referred to the case of Kedarnath Agarwal (Dead) & Anr. -vs-Dhanraji Devi (Dead) by LRS. &Anr, (2004) 8SCC 76 and submitted that it was permissible for the learned First Appellate Court to pass its order on the basis of subsequent events.

10. Having regard to the judgment rendered by the Supreme Court of India in Kedarnath Agarwal (supra), it is seen that the concerned suit before the Supreme Court of India was eviction suit based on landlord-tenant relationship. It is well settled that in a case of eviction of a tenant to some extent the subsequent events can be considered. In the said judgment, the Supreme Court of India has discussed several citations. All the cases referred therein relate to the landlord-tenant disputes and the discussion on the case laws was based on the facts that the crucial date for deciding as to the bonafide requirements of the landlord is the date of his application for eviction but subsequent development during post eviction period can be taken into account for judging the bonafide requirement pleaded by the landlord. However, with due regard to the case cited at the bar, the Court is of the considered opinion that same principle would not apply to a regular suit relating to the declaration of right, title, interest, recovery of possession and cancellation of deeds and therefore, recourse must be taken to the provision of Order VI Rule 17 of CPC to bring the subsequent events to be brought on record by way of amending the pleadings. However, this issue relating to taking into cognizance the subsequent events is being distinguished in this order on the basis of suit for eviction of a tenant and suit relating to declaration of right, title and interest and which are considered Page No.# 6/7

under different parameters.

11. Be that as it may, the Court finds that as per deed of agreement dated 19.02.2015,it is envisaged that construction would be within a period of 36 months. We do not intend to deal with the requirements of law as to whether the time is an essence of the contract, which is left open to be decided by the learned trial Court. Nonetheless, as per the inspection report dated 01.04.2023, and from the statement made at the bar by the learned counsel for the petitioners as well as the respondent that the plot of land of the respondent would be relatable to Block B and C as mentioned in the said report and the Court finds that the progress of the construction does not envisages an early completion of the project on the land of the respondent, which is measuring 4 Katha 4.5 Lechas (four and half lechas) covered by Dag No. 531(Old)/342,343, 598(New) of Kheraj Periodic Patta No. 33(Old)/932(New) of Revenue Village Gotanagar.

12. Therefore, the respondent/plaintiff has filed a suit to cancel the agreement dated 19.02.2015, for recovery of possession and permanent injunction. The non-granting of injunction would cause prejudice to the respondent which appears to be comparatively more than the comparative loss that the petitioners would suffer considering the fact that the proposed construction is still incomplete even after lapse of 8 years.

13. In view of the discussion above, this Court finds that it cannot be said that the learned First Appellate Court have committed any jurisdictional error in appreciating the fact that the respondent have a strong prima facie case for trial and that the balance of convenience was in favour of injunction to the respondent, who was not in a position to do anything over a plot of land but to wait at the mercy of the petitioners to have a promised flat. The finding of the Page No.# 7/7

learned First Appellate Court on irreparable loss and injury which the respondent is likely to suffer is also not found to be vitiated by jurisdictional error. Therefore, this Court is not inclined to interfere with the impugned order dated 13.07.2023 passed by the learned Additional District Judge (FTC) Kamrup (M), Guwahati in Misc.(J) Case No. 97/2021 arising out of Misc. Appeal No. 93/2021

14. However, before parting with the records this Court is inclined to observe that the learned First Appellate Court has granted injunction limited to changing of the nature and character of the suit land and also from altering the suit land in any manner. Therefore, this Court is inclined to observe that the said order of injunction shall not preclude the petitioners from carrying out construction in any other part of their project, save and except the land described in the schedule in plaint.

15. Accordingly,this appeal stands dismissed with clarification to the extent of as to the effect of the injunction as indicated above.

16. Parties to bear their own cost.

JUDGE

Comparing Assistant