Tripura High Court

Sri Subhash Chakraborty vs Smt. Sandhya Deb on 16 August, 2024

                   HIGH COURT OF TRIPURA
                         AGARTALA
                     RFA No.13 of 2024
Sri Subhash Chakraborty,
S/O. Sri. Nimai Chakraborty,
Resident of South Badharghat,
Charipara, P.O. & P.S.- A.D. Nagar,
District- West Tripura.
                             ....The Plaintiff Appellants(s)
                           Versus
1. Smt. Sandhya Deb,
W/O. Lt. Rakhal Chandra Deb,
2. Sri Amiya Deb,
S/O. Lt. Rakhal Chandra Deb,
Both residents of H.G.B. Road,
Agartala, P.S.- West Agartala,
Near Battala Market,
Dist.- West Tripura,
Pin-799001.
3. Smt. Soma Deb (Saha)
W/O. Sri. Tapan Saha
Resident of Town Pratapgarh,
Agartala, P.S.- East Agartala,
District- West Tripura,
Pin- 799004.
                        ....The Defendant Respondent(s)

For Appellant(s)       :   Mr. D. Deb, Adv,
For Respondent(s)      :   None.
Date of Hearing        :   12.08.2024
Date of delivery of
Judgment and Order :       16.08.2024
Whether fit for
Reporting           :      YES

        HON'BLE MR. JUSTICE BISWAJIT PALIT

                      Judgment & Order

This is an appeal challenging the judgment and

part decree dated 02.02.2024 and 08.02.2024 respectively

delivered by Learned Civil Judge, Senior Division, Court No.2,

West Tripura, Agartala in connection with case No.T.S.62 of

2022.

02. Heard Learned Counsel, Mr. D. Deb for the

appellant-plaintiff. None appeared on behalf of the

respondent-defendants inspite of receipt of notice.

03. Before coming to the conclusion of this appeal, let

us discuss the subject matter of the dispute filed by the

appellant as plaintiff before the Learned Trial Court. The

appellant-plaintiff filed the suit before the Learned Trial Court

for declaration, perpetual injunction and also for recovery of

the amount of loss suffered by the plaintiff and for

mandatory injunction.

04. The genesis of the case of the plaintiff-appellant

before the Learned Trial Court was that the plaintiff-appellant

is the owner of the hotel Anjana in 3rd floor and a part of the

4th floor of the multi-storied building situated at H.G.B Road

near Battala Bazar. The appellant-plaintiff constructed the

said multi-storied building including the 3rd floor and the 4th

floor in pursuance of a Developer Agreement entered with

the respondent-defendants. After completion of construction

of the said building on the land of the respondent-

defendants, as per agreement, three rooms on the ground

floor were distributed to the developer, i.e. the plaintiff

herein by following the terms and conditions of the developer

agreement dated 25.07.2013. The said multi-storied

construction was constructed on the land of the defendants

situated at Mouja-Agartala, Sheet No.-6 under Revenue

Circle-Sadar, Tehsil-Agartala, West Tripura, under Touji

No.2468, Khatian No.495 under Old C.S. Plot No.4653/P,

4654/P, 4653, 4654 and 4655/P corresponding to Hal C.S.

Plot No.256, 257 and 328 for land measuring 0.048 acre. It

was the further case of the appellant-plaintiff that the

defendants in addition to the developer agreement had to

make some payment of Rs.63,00,000/- (sixty three lakhs

only) for the purpose of initial work demolition of the old

structures and building, cutting of the trenches, obtaining

Municipal Permission for construction, payment of taxes etc.

The construction work was done by obtaining loan, but

unfortunately, the defendants on the assurance of payment

of said amount to the plaintiff-developer failed to make such

payment even after completion of the construction of the

said multi-storied building. Only an old room in the ground

floor of the multi-storied building could not be reconstructed

which was under the occupation of a tenant namely, Sri

Ratan Debnath of Bardowali, Agartala on monthly basis for

which said room could not be demolished. It was further

asserted that as the respondent-defendants failed to make

payment of Rs.63,00,000/- to the appellant-plaintiff, so, it

was decided and settled that two rooms covering the rent in

the ground floor of the said building to be transferred/sold by

the respondent-defendants to the developer plaintiff. For

that a registered agreement for sale of two rooms in the

ground floor was executed between the plaintiff and the

defendants on 26.11.2018, which was registered before the

Sub-Registrar, Sadar, vide no.I-6828. Later on, on

08.02.2019 another agreement was made without any

registration between the appellant-plaintiff and the

respondent-defendants being continuation of the earlier

agreement before the Notary Public.

It was further asserted by the appellant-plaintiff

that as said Ratan Debnath did not vacate the room after

being requested by the defendants. So, an eviction case was

filed under RCC Act against said Ratan Debnath by the

defendants before the Rent Control Court bearing case

No.RCC 07 of 2014, with the supervision and financial

assistance given by the appellant-plaintiff. It was the further

case of the appellant that as the defendants failed to comply

with the terms and condition of the Agreement for the Sale

of two rooms in the ground floor to the plaintiff, so, the

appellant-plaintiff filed a civil suit vide No.T.S.102 of 2021 in

the Court of Learned Civil Judge (Sr. Div.), Court No.1, West

Tripura, Agartala for specific performance of contract against

the defendants for getting the sale deed registered and for

taking possession of the said two rooms in the ground floor

of the said multi-storied building, as per Agreement of Sale.

The said Civil Suit filed is still pending for adjudication. It

was also the case of the appellant ithat the defendants after

institution of the said Civil Suit No.T.S.102 of 2021 have

become more vindictive to cause harm and harassment to

the plaintiff and started disturbing the plaintiff in different

manners like disturbances in running the hotel business in

the rooms of 3rd floor and a part of 4th floor of the said multi-

storied building as the appellant-plaintiff has got lease

agreement for ten years with option for further extension of

period. The defendants have been creating obstruction to the

boarders, staff and manager of the plaintiff's hotel by

unnecessary disgraceful comments since long. Even the

defendants did not abstain from making such disturbance

after several objections and requests of the plaintiffs.

On 13.03.2022 at about 10.30 to 11.00 p.m., the

defendant Nos.1 and 2 in presence of manager, staff and

other customers of Hotel Anjana locked the door of room

No.2 of 3rd floor of the said multi-storied hotel, which was

taken by the appellant-plaintiff from the defendants with few

other rooms, under the Monthly Lease Agreement.

The subject matter of the instant suit was the

Room No.2 situated at 3rd floor of multi-storied building of

hotel Anjana which is located at H.G.B. Road, Agartala. It

was further contented by the appellant-plaintiff that the

defendant No.1, being influenced by other defendants, has

been disturbing the plaintiff, the staff and the boarders of

hotel Anjana, even after giving the 3rd floor (including suit

premises i.e. Room No.2) and part of the 4th floor to the

plaintiff for ten years on lease. It was further asserted that

after receipt of notice in connection with case No.T.S.102 of

2021, the respondent-defendants have become more violent

and just to take revenge they have forcefully locked the

Room No.2 of 3rd floor of the said hotel.

It was also submitted that the manager and other

staff and the boarders, after hearing hot altercation between

the manager of the said hotel and the defendant No.1

appeared and resisted the defendant No.1 from locking the

door of Room No.2 but that was in vain.

Thereafter, on the same night, the manager

informed the matter to the Battala outpost but no action was

taken. The appellant-plaintiff further submitted that due to

disturbance caused by the respondent-defendants, he

suffered a lot in normal and regular use of the stair case of

the said multi-storied hotel and also suffered loss for the

illegal act of locking the door of the Room No.2 of the 3 rd

floor of Hotel Anjana. Hence, the appellant-plaintiff filed the

suit seeking the following reliefs:

"(i) decree for declaration that the plaintiff has right and interest over the suit premises i.e. the Room no.2 of 3rd floor of Hotel Anjana as per the registered monthly Lease Agreement entered with the

defendants dated 17.04.2015 vide No.I- 323;

(ii) decree for recovery of the amount of Rs.5,00,000/- (rupees five lakhs only) with interest @6% per annum since date of locking the door till the realization from the defendant for the loss caused due to illegal locking of the suit premises;

(iii) decree for permanent injunction restraining the defendants and their agents from disturbing the peaceful use of the staircase of the Hotel and possession of the rooms of the 3rd floor and part of 4th floor of Hotel Anjana by the plaintiff and his staffs in and

(iv) decree for mandatory injunction directing the defendants to open the door by unlocking the Room No.2 of the 3rd floor of Hotel Anjana."

05. In obedience to the notice issued the respondent-

defendants although appeared but did not contest the suit

for which the suit proceeded ex-parte against the

respondent-defendants. Thereafter, to substantiate the case

the appellant-plaintiff adduced four witnesses including the

appellant himself and relied upon some documents which

were marked as Exhibit-1 to Exhibit-3:

APPENDIX OF EVIDENCE

(A) Plaintiff's Exhibits :-

1. Exbt.1 - computerized Khatian No.495 of Mouja- Agartala Sheet No.6;

2. Exbt. 2 (As a whole) - Original Lease Deed b/n I-3231 dated 17.04.2015; And

3. Exhibit-3 (As a whole) - Certified copy of Order dated 29.01.2022 passed in connection with CM (Injunction) 66 of 2021 arising out of TS 102 of 2021.

(B) Plaintiff's witnesses :-

1. P.W. 1:- Sri Subhash Chakraborty ;

2. P.W. 2:- Sri Prabir Chandra Saha ;

3. P.W. 3:- Sri Suman Ghosh Chowdhury and

4. P.W. 4:- Sri Ajit Deb.

(D) Defendant's witness :- Nil.

(E) Court's Exhibits :- Nil.

(F) Court's witness :- Nil.

06. As the case proceeded exparte, so, to determine

the suit Learned Trial Court below determined the following

points for decision of the suit:

"(i) Whether the suit is maintainable in its present form and nature?

(ii) Whether the suit has been instituted with a valid cause of action?

(iii) Whether the plaintiff has any right and interest over the suit premise i.e. Room no. 2 of Hotel Anjana?

(iv) Whether the plaintiff is entitled to get a decree for recovery of possession and permanent injunction restraining the defendants from disturbing the peaceful use of the staircase of the Hotel and peaceful possession of the rooms of the 3rd floor and part of 4th floor of Hotel Anjana?

(v) Whether the plaintiff is entitled to get the decree for recovery of the amount of Rs.5,00,000/- (rupees five lakhs only) with interest @6% per annum since date of locking till the realization from the defendants?"

07. Finally on conclusion of trial, the Learned Court

below partly decreed the suit. For the sake of convenience, I

would like to refer herein below the relevant portion of the

judgment and order of the Learned Trial Court which runs as

follows:

"Hence, in the light of the afore-mentioned discussion, the suit filed by the plaintiff is hereby partly decreed in his favour against the defendants.

The right and interest of the plaintiff over the suit premises is hereby declared as a lessee w.e.f 15.06.2016 to 14.06.2026 as per the terms and conditions of the lease. The defendant is hereby directed to hand over possession Room no. 2 of 3rd floor of Hotel Anjana to the plaintiff after unlocking it within 45 days from the date of decree. The defendants are also hereby restrained from disturbing the peaceful use of the

staircase and peaceful possession of the plaintiff in respect of Room no.2 and other rooms of the 3rd floor and part of 4th floor of Hotel Anjana till the expiry of leasehold period i.e. till 14.06.2026. Prepare the decree accordingly and put up for signatures within 14 days from today. The suit is thus disposed off accordingly without contest."

08. At the time of hearing of argument, Learned

Counsel for the appellant submitted that although the

Learned Trial Court below partly decreed the suit but the

Learned Trial Court below did not consider the damages

sustained by the appellant for illegally shut down the Room

No.2 of 3rd floor of the suit premise.

09. Learned Counsel submitted that Exhibit-2 was

executed for a period of ten years and there was breach of

condition by the respondents in compliance of the said terms

and conditions of the Lease Agreement. But inspite of that

the respondent-defendants without any authority caused

disturbance to the appellant-plaintiff in running the business

of hotel and illegally locked the door of the Room No.2 for

which he was sustaining loss at the rate of Rs.15,00/- per

day.

Accordingly to the Learned Counsel for the

appellant, although the Learned Trial Court below granted

other reliefs but failed to appreciate the evidence on record

regarding allowing of damages sustained by the appellant

due to illegal locking of the Room No.2, so, Learned Counsel

finally urged for allowing this appeal and to grant decree for

recovery of compensation of amount of loss and sufferings

which the Learned Trial Court failed to consider at the time

of granting part decree in favour of the appellant.

Learned Counsel further submitted that in the

prayer portion of the plaint, specific averment was made

regarding sustaining of loss at the rate of Rs.15,00/- per

day.

10. The Learned Court below in determining point

No.5 came to the observation that no actual loss could be

proved by the plaintiff, so, no relief was granted. It appears

that before the Learned Trial Court, required Court fees was

deposited by the appellant before filing of the suit. The

contesting respondent-defendants inspite of receipt of

summons although appeared but did not contest the suit

either by filing WS or by adducing oral/documentary

evidence on record.

11. The appellant as PW-1, in his examination-in-chief

in affidavit asserted the said facts in para No.11. Similarly,

PW-2 Prabir Chandra Saha in his examination-in-chief in

affidavit supported the said fact that the Room No.2 of 3 rd

floor was locked by the respondent-defendants. Similarly,

PW-3 Suman Ghosh Choudhury also supported the said

version. PW-4 Sri Ajit Deb also in his examination-in-chief in

affidavit supported the version of the appellant-plaintiff

regarding cause of action and for causing damage. From the

evidence on record, it appears that the respondent-

defendants violated the terms and conditions of the Lease

Agreement, i.e. the Exhibit-2 and accordingly, after hearing

the appellant as plaintiff and also after considering the

evidence on record, Learned Trial Court below partly decreed

the suit in favour of the appellant-plaintiff but refused to

grant decree in respect of damages.

12. In course of hearing of argument, Learned

Counsel for the appellant although submitted that the

appellant-plaintiff sought relief in the plaint for damages, but

that was not considered by the Learned Trial Court. But on

perusal of the evidence on record, it appears that the

appellant-plaintiff before the Learned Trial Court failed to

give any proper account of the damage, sustained by the

appellants due to wrongful act of the respondent-defendants

and as such Learned Court below could not grant the said

relief in favour of the appellant-plaintiff. The suit was filed for

injunction and also for damages.

13. It is the settled position of law that in a suit for

injunction the plaintiff also may claim relief for damages. To

determine the issue, assistance of ChatGPT is taken with the

following query:

ChatGPT In a suit for injunction whether the plaintiff is entitled to get a decree for damages?

:-In a suit for an injunction, the plaintiff can indeed seek a decree for damages in addition to the injunction, but this depends on the specific circumstances of the case and the relief sought in the plaint.

Key Points:

Combination of Remedies: In many legal systems, particularly under common law, a plaintiff may combine multiple remedies in a single lawsuit. For instance, the plaintiff may ask for both an injunction (to prevent ongoing or future harm) and damages (to compensate for harm already suffered). Injunction: An injunction is an equitable remedy that requires the defendant to do or refrain from doing a specific act. It is primarily preventive in nature. Damages: Damages, on the other hand, are a legal remedy that aims to compensate the plaintiff for loss or injury suffered due to the defendant's actions.

Pleading Both Remedies: The plaintiff must specifically plead for damages in addition to the injunction in the plaint. If the plaintiff only seeks an injunction and does not plead for damages, the court may not grant damages unless the plaint is amended.

Discretion of the Court: The grant of both an injunction and damages is at the discretion of the court. The court will assess whether both remedies are appropriate based on the evidence and circumstances.

Separate Proceedings: If damages are not sought in the injunction suit, the plaintiff might need to file a separate suit for damages, depending on the jurisdiction and the specific legal procedures.

From the said observation of ChatGPT, it also

appears that in a suit for injunction, the plaintiff also may

seek decree for damages subject to specific circumstances of

the case.

14. Here in the given case, it is the admitted position

that the appellant-plaintiff before the Learned Trial Court in

addition to the prayer for injunction also sought relief for

damages but could not give any specific account for the

damages sustained by him, just only mentioned the amount

sought for without adducing any specific oral/documentary

evidence on record.

15. Situated thus, in my considered view the matter

needs to be remanded back to the Learned Trial Court with a

direction to the appellant-plaintiff to adduce evidence in

respect of damages mentioned by him to enable the Learned

Trial Court below to give a specific finding on this point.

16. In the result, the appeal filed by the appellant-

plaintiff is hereby allowed. The suit is remanded back to the

Learned Trial Court with a direction to the appellant-plaintiff

to adduce fresh oral/documentary evidence on record, if any,

in support of his claim for damages claimed in the suit to

enable the Court to give a specific finding on this point. The

plaintiff-appellant is further directed to appear before the

Learned Trial Court on 27.08.2024. The Learned Trial Court

shall make endeavour to dispose of the suit within a period

of three (03) months from the date of receipt of a copy of

this judgment after affording the appellant an opportunity to

adduce evidence.

17. Since, there was no other separate prayers

challenging the judgment and part decree granted by the

Learned Trial Court by judgment dated 02.02.2024 and

decree dated 08.02.2024, so, the same is hereby upheld and

accordingly, it is affirmed. With these observations, the

appeal is disposed of.

Prepare decree accordingly.

Send down the LCRs along with copy of the

judgment for immediate compliance.

Pending application(s), if any, also stands

disposed of.




                                                                            JUDGE




MOUMITA         Digitally signed by
                MOUMITA DATTA

DATTA           Date: 2024.08.17 16:57:00
                +05'30'
Purnita