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Indian Cable Company Limited Vs. Smt. Sumitra Chakraborty - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberF.M.A. No. 415 of 1984
Judge
Reported inAIR1985Cal248,1985(1)CHN428,(1985)2CompLJ64(Cal),89CWN559
ActsCode of Civil Procedure (CPC) , 1908 - Order 2, Rule 2 - Order 39, Rules 1 and 2; ;Rent Act
AppellantIndian Cable Company Limited
RespondentSmt. Sumitra Chakraborty
Appellant AdvocateS.K. Kapoor and ;Amiya Narayan Mukherjee, Advs.
Respondent AdvocateNani Coomar Chakraborty and ;Amitava Guha, Advs.
Cases ReferredLachmandass Daswani v. Mrs. Phillis Berry
Excerpt:
- anil k. sen, j. 1. this appeal from an original order is by the plaintiff, the indian cable company limited (hereinafter referred to as the plaintiff company). the order impugned is one dated may 12, 1983, passed by the learned subordinate judge, 3rd court, alipore, thereby refusing a prayer for injunction made by the plaintiff on an application under order 30, rules 1 and 2 read with section 151 of the civil p. c. such an application was filed in title suit no. 206 of 1982 instituted on september 23, 1982. the plaintiff's case as made in the plaint and in the application for injunction is shortly as follows : 2. since july 1, 1970, the plaintiff company had been a monthly tenant under the defendant/respondent in respect of the suit premises which is a first floor flat at premises no......
Judgment:

Anil K. Sen, J.

1. This appeal from an original order is by the plaintiff, the Indian Cable Company Limited (hereinafter referred to as the plaintiff company). The order impugned is one dated May 12, 1983, passed by the learned Subordinate Judge, 3rd Court, Alipore, thereby refusing a prayer for injunction made by the plaintiff on an application under Order 30, Rules 1 and 2 read with Section 151 of the Civil P. C. Such an application was filed in Title Suit No. 206 of 1982 instituted on September 23, 1982. The plaintiff's case as made in the plaint and in the application for injunction is shortly as follows :

2. Since July 1, 1970, the plaintiff company had been a monthly tenant under the defendant/respondent in respect of the suit premises which is a first floor flat at premises No. 510, Jodhpur Park, Calcutta, initially at the monthly rent of Rs. 1,000/- which was increased on the request of the defendant to Rs. 1,184/- with effect from April 1, 1981. The suit property was being used by the plaintiff company for the purpose of providing residential accommodation to its officers and one Sri R. N. Gupta an officer of the plaintiff company was in occupation of the suit premises up to January 31, 1982, when he retired and vacated the suit property on and from February 1, 1982. On February 2, 1982, the plaintiff caused an inventory to be made of the furniture, fixtures and fittings of the plaintiff lying in the said property under the signature of the said Sri R. N. Gupta and the plaintiff's officer Sri G. N. Chatterji. To protect the plaintiff's property, the plaintiff company engaged Messrs. Security Consultants and Deployment Services to provide security guards and such guards were provided on and from February 2, 1982. The defendant was quite aware of those facts, the rent for the months of February and March, 1982, was duly paid and received by the defendant. The defendant, however, after duly receiving the rent for the month of March 1982, in advance started abusing the security guards and preventing them from having ingress and egress to and from the suit property since March 15, 1982, and a complaint to that effect was lodged with the Lake Police Station on March 25, 1982. On March 29, 1982, the plaintiff filed a suit, being Title Suit No. 168 of 1982 in the 3rd court of the learned Munsif at Alipore praying for an injunction restraining the defendant from interfering with the plaintiff's right of ingress and egress to the suit property and for a mandatory injunction for removal of all obstructions to the access of the plaintiffs men and agents to the suit property. On March 30, 1982, on an application for interim injunction, the learned Munsif passed an ad interim order directing maintenance of status quo and the plaintiff preferred an appeal on April 1, 1982. In the appeal, the plaintiff company filed an application for temporary injunction to which an affidavit-in-opposition was filed by the defendant on April 2, 1982, alleging therein for the first time that she had taken possession of the said flat on March 24, 1982. The plaintiff was not aware of the fact that the defendant had surreptitiously taken possession of the suit property, when Title Suit No. 168 of 1982 was filed. Hence, the plaintiff filed the present suit for recovery of possession and for injunction.

3. Having filed such a suit the plaintiff filed an application for injunction for restoration of possession of the suit property on the allegation that the plaintiff having been in lawful possession of the suit property as a monthly tenant and the defendant having obtained the rent for the said property even for the month of March 1982, took the law in her own hands in wrongfuly throwing out the plaintiff in a surreptitious manner and in breach of the plaintiff's statutory protection under the provisions of the West Bengal Premises Tenancy Act. It was claimed that the defendant acted not only wrongfully but also mala fide when she forestalled the suit against her and wrongfully kept the plaintiff out of the suit property in clear anticipation of a legal proceeding against her. Such being the conduct of the defendant it was claimed by the plaintiff that pending the suit the plaintiff company should be restored to possession of the suit property.

4. This application was contested by the defendant landlady. After a broad denial of the allegations made in the application for injunction she made out a case that after receipt of the rent for the month of March 1982, on and from March 15, 1982, she was surprised to notice that some unknown persons were visiting the flat who refused to disclose their identity or whereabouts. They were so doing in collusion with the plaintiff. In that situation the plaintiff's husband on March 23, 1982, lodged a complaint before the learned Additional Chief Judicial Magistrate, Alipore, under Section 448 of the Penal Code and the learned Magistrate forwarded the said complaint to the police for investigation with a direction to draw up an inventory. On March 24, 1982, the police in terms of the said direction visited the suit premises and found the door of the suit flat wide open and nobody was found inside the flat. An inventory was made by the police and the investigating officer handed over possession of the suit flat to the husband of the defendant. The police submitted a report and the learned Magistrate by an order dated March 29, 1982, allowed the defendant to remain in possession of the suit flat thus delivered to her by the police. The defendant on her turn filed a suit, being Title Suit No. 164 of 1982 on March 26, 1982, and therein filed an application for an interim injunction restraining the plaintiff company from dispossessing her through any security consultant service. Three days thereafter, the plaintiff company filed Title Suit No. 168 of 1982 with a prayer for interim injunction made therein and that suit is also pending. According to the defendant, the plaintiff having abandoned the said flat and the defendant having taken lawful possession thereof and she being in such possession on the date of the suit, the plaintiff is not entitled to any order of injunction directing restoration of possession to it.

5. The application for injunction came up for consideration by the learned Subordinate Judge on the pleadings, as aforesaid. Though no oral evidence was adduced, parties relied upon affidavit evidence and they further relied upon various documents filed before the learned Subordinate Judge. The application was, however, dismissed as referred to hereinbefore and it was so dismissed on two-fold grounds. The first ground for refusing the prayer for injunction is that the present suit which is the second suit by the plaintiff company is barred under the provision of Order 2, Rule 2 of the Civil P. C. because the plaintiff could have sought for further remedy now being sought for in the present suit, in the earlier suit still pending in the 3rd Court of the learned Munsif. The second ground on which the learned Subordinate Judge refused the prayer is to the effect that the plaintiff upon its own pleading having been dispossessed on the date of the suit, and in the suit the plaintiff having prayed for recovery of possession, the plaintiff is not entitled to claim an order of injunction for restoration which would mean not only granting the main relief in the suit on an interlocutory injunction but would mean something more than restoration of status quo as on the date of the suit. Reliance was placed on earlier two decisions of this court in the case of Rameswar Lath v. Calcutta Wheat and Seeds Assocation (1936) 40 Cal WN 1201 and Nandan Pictures Ltd. v. Art Pictures Ltd. : AIR1956Cal428 . Feeling aggrieved, the plaintiff has preferred the present appeal.

6. Mr. Kapoor appearing in support of this appeal has strongly contended that both the reasons assigned by the learned Subordinate Judge in dismissing the plaintiff's prayer for injunction are clearly unsustainable. According to Mr. Kapoor, the provision of Order 2, Rule 2 of the Code can be no bar to the present suit because the cause of action pleaded in the two suits are quite different and the learned Subordinate Judge failed to take note of the fact that the 3rd Court of the learned Munsif can have no pecuniary jurisdiction to entertain a suit like the present one on a prayer for restoration of possession and damages on its value. So far as the other reason assigned by the learned Subordinate Judge is concerned, according to Mr. Kapoor, the learned Subordinate Judge entirely misconceived the legal position in thinking that the suit having been filed acknowledging dispossession with a prayer for recovery of possession there is an absolute bar in law for the plaintiff to claim an order of injunction for restoration as an interlocutory relief. Mr. Kapoor next took us through the affidavits and the documents in contending that the defendant having wrongfully dispossessed the plaintiff in a surreptitious manner to forestall legal proceeding against her and such dispossession having been effected in gross violation of the plaintiff company's protection under the West Bengal Premises Tenancy Act, it was a fit case where the court should even on an interlocutory application, direct restoration of possession.

7. All the points thus raised by Mr. Kapoor have been strongly contested by Mr. Chakrabarti appearing on behalf of the defendant landlady. According to Mr. Chakrabarti the learned Subordinate Judge was right in taking the view that in the facts and circumstances the plaintiff company was not entitled to any mandatory injunction on an interlocutory application for restoration of possession when admittedly the plaintiff had been dispossessed long prior to the suit and when such a mandatory injunction was the principal relief in the suit. On the facts again, Mr. Chakrabarti has strongly relied upon the materials on record in contending that the defendant having been put into lawful possession of the suit property on March 24, 1982, the court should not throw her out on an interlocutory application and even before it is finally decided whether she is really guilty of any wrongful act of dispossessing the tenant.

8. I have carefully considered the rival contentions put forward before us. Before I proceed to consider the plaintiff's claim for injunction by way of restoration on its merits, I must clear the two grounds on which according to the learned Subordinate Judge, the plaintiff's prayer must fail in law. In my view, the learned Judge clearly overlooked the provision of Order 2, Rule 2 in taking the view that the present suit filed by the plaintiff company will be barred under such a provision only because the earlier suit filed by the plaintiff company, being Title Suit No. 168 of 1982 is still pending. What this Rule requires is that every suit shall include the whole of the claim arising from one and the same cause of action and not that every suit shall include every claim or every cause of action which the plaintiff may have against the defendant. The plaint in Title Suit No. 168 of 1982 is to be found at page 126 of the informal paper book prepared for our present purposes. It was based upon a cause of action which arose on and before March 15, 1982, and as pleaded in paragraphs 6, 7 and 8 of the plaint. In those paragraphs of that plaint it was clearly pleaded that the plaintiff had been in quiet and peaceful possession of the suit property until March 15, 1982, when the defendant started abusing and harassing the plaintiff's men and agents in the matter of getting access to the suit property. In the plaint of that suit there was no allegation of dispossession from the first floor flat. What was being alleged was that the defendant was wrongfully putting padlocks on the outer door thus making it difficult for the plaintiff's men getting access to the first floor. As a matter of fact the factum of dispossession was not known to the plaintiff until April 2, 1982, when for the first time the defendant disclosed the said fact in their affidavit-in-opposition. That was a simple suit for injunction valued at Rs. 50/-, while the present suit is a suit based on a different cause of action, namely, the dispossession itself which arose only on i March 24, 1982. This being a suit for recovery of possession on declaration of tenancy rights along with damages valued at more than Rs. 33,000/- obviously such a claim could not have been added to the earlier plaint pending in the court of the learned Munsif not having the necessary pecuniary jurisdiction to entertain such a suit. Thus, the cause of action of the two suits being totally different, in my opinion the learned Subordinate Judge was in error in thinking that the present suit is prima facie barred under the provision of Order 2, Rule 2 of the Code and, as such, no interim prayer in support of such a suit can be entertained in law. The first reason assigned by the learned Subordinate -Judge in refusing the prayer for injunction, therefore, is clearly unsustainable.

9. So far as the second reason assigned by the learned Subordinate Judge is concerned, I feel that it is neceessary to clarify the legal position with regard to a prayer for injunction as amde in the present case. The learned Subordinate Judge appears to have taken the view that since recovery of possession is the principal relief claimed in the suit, the plaintiff cannot claim restoration of possession on an interlocutory application because that would mean in a manner decreeing the suit even before its trial. Reliance has been placed upon an earlier decision of this court in the case of Rameswar Lath (1936 (40) Cal WN 1201) (supra). But in my opinion the said decision is no authority for an absolute proposition that no relief on an interlocutory application can be granted under any circumstances which may amount to granting of the main relief prayed for in the suit. Mcnair, J: in the said decision merely pointed out that as a general rule such a relief is not granted in the absence of apparent urgency and injury to the applicant. When I refer to the decision I find that Mcnair, J. did take note of and approve of the principle as enunciated in English cases which acknowledged the existence of a power in a court to give such a relief on an interlocutory application as may also be the substantial prayer in the suit. The learned Judge took pains to consider whether on the facts of the particular case any such ground had been made out for grant of such a relief and observed ; 'There is no statement for pleading as to the injury which would be suffered by the applicant if he does not set the injunction which he now prays for and I am not satisfied that there is any urgency in the matter'. If the bar to the granting of such a relief had been considered to be absolute by the learned Judge, it would not have been necessary for him to go into the question of urgency or the injury to be suffered by the plaintiff. Granting of such a relief was upheld by the court of appeal in the case of Heywood v. B. D. C. Properties Ltd., (1963) 2 All ER 1063 (1067). Reviewing the earlier authority it was observed: 'Those cases, I think, do show that it is only in unusual circumstances that the court ought to take the step of granting substantially the whole relief claimed in the action on an interlocutory application. But they equally show that that is a procedure which, in a proper case, is available. In my judgment, having regard to the admitted fact that the alleged contract registered, was not contract at all this is one of those cases in which it is proper and appropriate to grant by way of an interlocutory application the relief which the Judge has granted'. 'The same view was expressed by the court of appeal in the case of Acrow Limited v. Rex Chain Belt, (1971) 3 All ER 1175, when the appeal court allowed the appeal and granted an interim relief though it took note of the fact that granting such an injunction meant virtually deciding the action and it was observed that: 'that often happens'. Mr. Kapoor has rightly drawn out attention to an unreported Bench decision of this court in the case of Lachmandas Daswani v. Messrs. Philis Berry D Cruz (A. F. O. O. No. 243/72, O. S. decided on May 17, 1974). In this decision, the Division Bench distinguished the decision in (1936) 40 Cal WN 1201 by taking the same view as I have taken in the present case. In my opinion, the principle on the point as it emerges on review of the authorities thereon is that if a court is called upon to grant any relief on any interlocutory application which when granted would mean granting substantially the relief claimed in the suit, the court will be very slow and circumspect in the matter of granting any such prayer. It is indeed true that such a relief should be granted only in exceptional cases. Though exercise of such a discretion should be limited to rare and exceptional cases, still at the same time no court should think, as has been the view taken by the learned Subordinate Judge, that in law there is any absolute bar to the court granting such a relief. In deserving cases, the court should not hesitate to come in aid of a litigant and uphold the cause of justice by granting such a relief. I am, therefore, of the opinion that the learned Subordinate Judge went wrong in reading the decision in (1936) 40 Cal WN 1201 as an authority for a proposition that in law there is an absolute bar to the granting of an interlocutory relief as claimed in the present case and, therefore, not deciding on the merits whether the plaintiff had made out any exceptional case in support of his claim.

10. The learned Subordinate Judge has also relied on an earlier decision of this court in the case of Nandan Pictures Ltd. v. Art Pictures Ltd., : AIR1956Cal428 in holding that when in the suit the plaintiff has acknowledged dispossession, the plaintiff is not entitled to a mandatory injunction for restoration of possession since dispossession was prior to the suit. Though an observation in the said decision if read not in its context is often cited as an authority for such a proposition, we do not think that the learned Judges really intended to lay down any such absolute proposition in the said decision. Since that observation was made having regard to the earlier authorities on the point, it would be just and proper for me to review these authorities. No doubt the observations of Beaman J. of the Bombay High Court in the Bench decision in the case of Rasul Karim v. Pirbhai Ameerbhai, AIR 1914 Bom 42 appear to support such a view when he observed; 'Entertaining the doubt I had, whether in any case the mofussil courts have the power to issue mandatory injunctions on interlocutory applications it appears to me that upon grounds of general expediency the proper course where applications of the kind are made would be rather to expedite the proceedings than to grant an injunction'. But in the Division Bench Shah, J did not agree to such a principle when he in his turn observed : 'I am not sure that the Indian Court have not similar powers under Rule 2, Order 39'. But the facts remains that the observations of Beamen, J did not find approval in subsequent decisions of different High Courts including the Bombay High Court itself. In a subsequent Bench decision in the case of Champsey Bhimji & Co. v. Jamna Flour , Mills, AIR 1914 Bom 195, it was observed by Davan, Acting C. J. as follows: 'Having regard to the very clear wrding of Order 39, Rule 2 and to-- the fact that this court has always exercised the power of remedying an injury or wrong by a mandatory injunction on an interlocutory application, I have no doubt whatever that this court has the power to make a mandatory order on an interlocutory application. If the court had no such power, it would be in the power of a party to cause insufferable inconvenience and grave injury to another during the whole time that would elapse between the commission of the wrongful act and the hearing of the suit filed to remedy the wrong and redress the injury'. The other learned Judge fully endorsed the view of the learned Acting Chief Justice and this latter view has been approved by the Division Bench of the Madras High Court in the case of M. Kandaswami Chetti v. P. Subramania Chetti, AIR 1918 Mad 588. Persuasive reasons given by a learned single Judge in support of the view in the case of Mdlla Surana v. Somulu, : AIR1969AP368 needs careful consideration.

11. English authorities on the point do not support an absolute proposition that the court cannot under any circumstance by an order passed on an interlocutory application, restore any state of things prevailing anterior to the suit. In the case of Thompson v. Park. (1944) 2 All ER 477, the court of appeal granted such an interim order setting aside the decision of Asquith J, in Chambers. There, the plaintiff was the owner of a house into which the defendant whose licence had earlier been withdrawn made forcible entry and the question that was raised was whether in the suit brought subsequent to such wrongful trespass an interim order could be passed for removing the defendant and restoring possession to the plaintiff. In allowing such a prayer it was observed by Goddard C. J. 'The status quo that could be preserved was the status that existed before these illegal and criminal acts on the part of the defendant. It is a strange argument to address to a court of law that we ought to help me defendant who has trespassed and got himself into these premises in the way in which he has done and say that that would be preserving the status quo and that it would be a good reason for not granting an injunction.' In a case much too similar to the case now under consideration by us, namely Luganda v. Service Hotels Ltd. (1969) 2 All ER 692, Lord Denning upheld an interim order directing restoration of possession in the court of appeal. There, the plaintiff was a contractual licencee who enjoyed the protections under the Rent Act of 1965. He was wrongfully dispossessed from the room in a building by the licensor when the licensor in the absence of the plaintiff took over possession of room by changing the lock. On an interlocutory application filed by the plaintiff in the suit brought by him Cross, J, granted him an injunction restoring him to possession of the room. That order being challenged was upheld by the court of appeal. It was observed by Denning, J. 'counsel for the defendants submitted, as the plaintiff was not now in occupation, no mandatory order could be made to put him back. He suggested that such an order would require the constant superintendence of the court which the court would not do. He cited Ryan v. Mutual Tontine Westminster Chambers Association (1893 (1) Ch. 116). I look on the case quite differently. The plaintiff is prima facie entitled by the statute to security of tenure of this room. It was unlawful for the defendant to look him out of it; see Section 30 of the Rent Act, 1965. They were wrong to take the law into their own hands. If the defendants had not changed the lock-- and the plaintiff was still in occupation -- I am sure that the court would have granted an injunction to prevent the defendants from locking him out. They should not be in a better position by wrongfully locking him out. As Lord Uthwatt said in Winter Garden Theatre (London) Ltd. v. Millenium Products Ltd. (1947 (2) All ER 331) 'In a court of equity wrongful acts are no passport to favour', we must see that the law is observed. To do this, we should I think, order that the plaintiff should be restored to his room'. The same principle was reaffirmed under similar circumstances in the case of Warder v. Cooper (1970)1 All ER 1112, and also in the case of Esso Petroleum Ltd. v. King Wood Motors Ltd. (1973) 3 All ER 1057. Recognising the court's power to grant such interim orders in exceptional cases, it was held that the case in which the court might be expected properly to grant a mandatory injunction on an interlocutory application is where the defendant is found to be 'stealing a march' on the plaintiff.

12. Strong reliance has been placed by Mr. Chakrabarti on an observation of Chakrabarti, C. J. in the case of Nandan Pictures Ltd. v. Art Pictures Ltd., : AIR1956Cal428 . The observation so relied on is as follows :-- 'It would appear that if a mandatory injunction is granted at all on an interlocutory application, it is granted only to restore the status quo and not granted to establish a new state of things, differing from the state which existed at the date when the suit was instituted'. This observation though purported to be based on earlier authorities, those authorities just reviewed do not lay down any absolute proposition. Mr. Kapoor had rightly drawn my attention to a subsequent Division Bench decision of this Court in the case of Lachmandas Daswani V. Phillis Berry D. Crus (A. F. O. O. No. 243 of 1972, O. S. disposed of on May 17, 1974). Mitra, J, in explaining the aforesaid observation of Chakrabarti, C.J. observed : 'The observations quoted above do not warrant a proposition that once an injury has been caused by a wrongful act, if a suit is filed after the wrongful act has been completed, no relief by a mandatory injunction can be granted with regard to the wrongful act complained of'. Mr. Kapoor has also drawn my attention to another Division Bench decision of this court in the case of Gobinda Ram Goenka v. Mahamaya Dey (Appeal from Original Order No. 207 of 1979, O. S. disposed of on September 16, 1982) where also the case of Nandan Pictures was distinguished by Chief Justice Ghose in upholding an interlocutory order directing removal of a third party transferee of a share in the dwelling house who had been put into possession thereof on such transfer. In the case of Bhuturia Brothers v. Danwarilal Purusottamdas, (1982) 1 Cal LJ 208, a Division Bench of this Court to which I was a party held that the court is entitled to grant interim orders in mandatory form for restoration of possession anterior to the suit in a case where the defendant has changed the status quo anticipating the suit and forestalling any order that may be passed therein, it was observed: 'In a sense such an order in subslance directs maintenance of status quo as on the date of the suit the defendant having forestalled the suit itself'.

13. Coming back to consider the observations of Chakrabarti, C J. in the case of Nandan Pictures, it has been observed by, me hereinbefore that those observations should be re.ad only in the context. I find that Chakrabarti, C J. himself recognised the power of a court to grant interim orders in mandatory form though in exceptional cases and the learned Chief Justice was careful enough to observe : 'Injunctions are form of equitable relief and they have to be adjusted in aid of equity and justice to the facts of each particular case. No court, therefore, ought to lay down absolute proposition when such are not necessary and forge fetters for itself'. Read in that context it appears clear to me that the later observations of the learned Chief Justice which has been relied on in this case by Mr. Chakrabarti, learned counsel for the respondent must be read merely as illustrative and should not be read as laying down any absolute proposition that in no case a court can grant an interlocutory order directing restoration of status quo ante. When the learned Chief Justice was speaking of 'a new state of things differing from the state which existed at the date when the suit was instituted', he was not really excluding the state of things which should have in law existed on such a date but for the wrongful act of the defendant of altering such a state of things.

14. Review of those decisions, therefore, leads to the conclusion that there is no bar to the courts granting interlocutory relief in mandatory form though in exercising the courts' discretion in this regard the court should act with greatest circumspection. Such a relief can be granted only in rare and exceptional cases and what that rare and exceptional case is must be left to the court to adjudge in the facts and circumstances of each case. I, therefore, now proceed to consider whether the plaintiff in the present case has made out any such exceptional case. It is not in dispute that the plaintiff company had been in peaceful enjoyment of the suit premises as a tenant since July 1, 1970, until the date they were dispossessed on March 24, 1982. It is also not in dispute that the appellant paid the rent for the month of March 1982, in advance by cheque and the defendant landlady encashed the cheque on March 10, 1982. It is obvious, therefore, that on March 24, 1982, when she took over possession of the suit premises she knew it very well that she had no right to do so during the continuance of the tenancy and in breach of the statutory protection under the West Bengal Premises Tenancy Act. Let us consider the manner in which she took over possession. On March 20, 1982, one P. K. Mazumdar filed an application under Section 156(3) of the Criminal P.C. before the Additional Chief Judicial Magistrate, Alipore, complaining that some unknown persons have entered into the flat on the first floor of premises No. 510, Jodhpur Park who were acting in a rowdy manner. It was said that immediate action is required to be taken to throw those unauthorised persons out. The prayer made in this application was as follows : 'In the circumstances it is prayed that Your Honour would be pleased to order C/C Lake P. S. to take immediate action treating this complaint as F. I. R. and also take inventory of the goods in the said flat'. For obvious reasons, this application which was really sponsored by the respondent was drawn up in a vague manner. None was named as an accused in this application, nor was it pointed out that the disputed flat was then being held on a subsisting lease by the plaintiff. The plaintiff was not made party to this application nor any notice thereof was served upon them. An order to the following effect was obtained from the learned Magistrate: 'Officer-in-Charge, Lake Police Station is directed to cause on investigation in the matter under Section 156(3) of the Code of Criminal Procedure treating this petition of complaint as F. I. R. and to prepare inventories if necessary. To 30-4-83 for report'. On March 25, 1982, the Security Consultants lodged an information with the Officer-in-Charge of the Lake Police Station, that the security guard on duty at the disputed flat were not allowed entry by the landlady on March 24, 1982, and even on that date in the morning when Sri S. K. Mookerjee a retired Assistant Commissioner of Police-- an officer of the consultants went there, he was allowed no access to the flat.

15. Even before the returnable date, the landlady caused an application to be filed on March 27, 1982, praying for an order directing the police to submit an interim report and the Magistrate allowed the prayer. On March 29, 1982 one Kali Kumar Das, Sub Inspector of Lake Police Station submitted a report dated March 27, 1982. In this report, it was stated that the occupant of the flat left the flat sometime in the middle of January 1982, locking the flat. Few days after the flat was vacated some unknown persons numbering about 3 or 4 heads occupied the flat when the landlady's husband was out of Calcutta. Their movements were suspicious and they mis-behaved with the caretaker of the house Sri Mazumdar. Even on March 23, 1982, they were seen in the flat, since morning of March, 24, 1982, they were not seen in the flat. The flat was found unlocked and there was none to look after the flat. Sri R. R. Chakrabarti took charge of the flat in the presence of the witnesses. The flat is still in possession of Sri Chakrabarti'. In this report again, there is a reference to the complaint of the Security Consultants dated March 25, 1982 complaining about landlady's obstruction to the security guards and their officer not being allowed to enter the flat. In this report there is reference to posting of security guards to the knowledge of landlady's husband who was examined at the enquiry. Though the report is dated March 27, 1982, the enquiry was stated to have been made on March 24, 1982. This date of enquiry is either erroneous or false because at the enquiry landlady's husband was examined with reference to the complaint of the Security Consultants dated 25-3-82. In this report, the Sub-Inspector of Police acknowledged the fact of putting the landlady's husband into possession of the disputed flat. I have reason to doubt the bona fides of such a report. Firstly there was no direction by the court to put anybody in possession. That apart he was quite aware that a complaint had already come in his hand that the landlady is trying to dispossess the Security Consultants. It was an unworthy act on the part of a police officer in not even examining the said Security Consultants or give them an opportunity to participate in the enquiry before he put the landlady into possession. We feel no hesitation in holding that the police officer was acting hand in hand with the landlady and was a party to illegal dispossession of the lawful tenant. There is no doubt in my mind that the landlady knew well that the flat fell vacant when the plaintiff's officer then in occupation vacated at the end of January 1982, and since then the plaintiff company through the Security Consultants had posted security guards therein. They were actually thrown off on March 24, 1982, and with the help of the Sub-Inspector of Police possession was taken over. When the defendant was feigning that some unknown persons were visting the flat she did it falsely knowing full well the identity of the persons therein posted on behalf of the plaintiff. This appears clear to us from the materials on record.

16. Though the returnable date was fixed by the learned Magistrate on April 30, 1982, on March 27, 1982, an order was obtained for submitting an interim report by March 29, 1982, and such an interim report having been submitted, an order was obtained from the Magistrate to the effect that in the interest of investigation the course of action taken by the I. O making over charge of the flat to R. R. Chakrabarti be continued. I have no manner of doubt in my mind that such ex parte orders were sponsored at the instance of the landlady only to add colour of legal authority to her wrongful act of dispossession. Lack of bona fides in the conduct of the landlady would further be apparent from the fact that even before the above direction was obtained from the Magistrate she filed a suit in the 3rd Court of the learned Munsif at Alipore on March 26, 1982, against the plaintiff for a permanent injunction restraining the defendant of that suit, namely, the present plaintiff from dispossessing her forcibly or otherwise than in due course of law. In this plaint, it was alleged that the tenant's officer left the suit flat two months ago and thereafter unknown persons in collusion with the tenant were moving in and out of the suit flat and she had become very apprehensive since enquiries made from the defendant resulted in no satisfactory reply. In such circumstances, police gave her possession and such possession has to be protected. She, however, failed to obtain an interim order ex parte in this suit.

17. On March 29, 1982, the present plaintiff filed their earlier suit, being Title Suit No. 168 of 1982 referred to hereinbefore. It would appear that the landlady had not only filed a suit on March 26, 1982, but had filed a caveat as against the present plaintiff on March 27, 1982. She knew very well that she was wrongfully dispossessing the plaintiff and, as such, in all these proceedings she was withholding all notices on the admitted tenants, the plaintiff. The appellants were quite unaware at relevant times, that they had actually been dispossessed in such a wrongful manner. Such being the manner in which the plaintiff had been thrown out of the suit property not only in breach of the provisions of the West Bengal Premises Tenancy Act, but also wrongfully and by abuse of process of criminal court at a point of time when the tenancy in their favour was still continuing, I cannot but hold that they are entitled to be restored to possession even on an interlocutory application. All this was done in hot haste in anticipation of a suit likely to be instituted on behalf of the tenant when it is well established on the facts that the respondent started obstructing the security staff from continuing to occupy the fiat put into their possession as an interim measure and that led to the raising of a dispute. In a case like the present one, I am of the opinion that the plaintiff has been able to make out such an exceptional case where the courts have ever felt any hesitation to grant interim relief by way of restoration of possession.

18. In the result, the appeal succeeds. The impugned order being set aside, I allow the plaintiff's application under Order 39 Rules 1 and 2 and grant an interim order of injunction directing restoration of possession of the suit property to the plaintiff. The appeal is allowed to the extent as above. There will be no order as to costs.

19. Since an appeal is disposed of, the application becomes infructuous and is disposed of accordingly.

20. No formal decree need be drawn up in this appeal.

Sudhir Ranjan Roy, J.

21. I am in complete agreement with my learned brother and his interpretation of the law on the subject But in view of the disturbing facts of the case which highlight ominous dimensions in the landlord tenant relationship in this metropolis in the background of acute scarcity of residential and other accommodations, it may not be totally out of place to add a few words.

22. To start with, I have a feeling that the Bench decision of this Court in Nandan Pictures v. Art Pictures, : AIR1956Cal428 which is capable of misinterpretation, coupled with the proverbial law's delay has been to some extent responsible for high handed acts in property matters committed with impunity which may possibly be taken judicial notice of.

23. Coming to the landlord tenant affair, the present case is a pointer as to what is actually happening as well as the shape of things yet to come. Intensely acute housing problem with -- consequential increase in the rate of rent has obviously tempted the house owners or at least a sizeable part of them to get rid of their existing tenants. The legal process being too long and complex and the result uncertain, legal processes are naturally to yield to extra legal ones.

24. Instances may not be rare when a tenant getting back home finds all his earthly belongings down in the streets and the lock changed. Similarly, the other way round, a lawfully ousted tenant forces his entry into the vacant flat and continues to hold on.

25. The genuinely aggrieved party rushes to the court for a quick remedy in the form of mandatory injunction at the interlocutory stage, but only to be shown a passage from the decision in Nandan Picture's case : AIR1956Cal428 (supra) which still holds the field: 'If a mandatory injunction is granted on an interlocutory application it is done only to restore the status quo and not to establish a new state of things, different from that which existed at the date when the suit was instituted.

26. The status quo on the date of the institution of the suit being obviously the possession of the trespasser, the person unlawfully dispossessed is left to his destiny to wait till the final disposal of the suit which may last till eternity. Coming to the decision itself it may be difficult to appreciate what 'restoration of status quo which existed at the date of the filing of the suit' actually means. There is always a cause of action antecedent to the filing of a suit. But does it mean that the suit has to be filed on the very same day in order to get the relief.' This may not very often be possible. But to file the suit even on the next day leaves the plaintiff without any remedy in the form of mandatory injunction on an interlocutory application, if a hypertechnical interpretation be put to the decision. 1 am not inclined to believe that this was actually intended. A person unlawfully dispossessed on a particular day may, if the decision is technically interpreted, be restored to possession even at the interlocutory stage if he can file the suit on that very day but not if it is filed even on the next day. Obviously, there cannot be any justification for this discrimination. Dispossession on the very day and dispossession a day or two earlier hardly makes any difference and to hold that this difference was actually intended would be putting a patently wrong interpretation to the decision.

27. As it has been rightly observed in the later unreported Bench decision of this Court in Lachmandass Daswani v. Mrs. Phillis Berry-(Appeal No. 243 of 1972) that the observations of Chakrabarti, C. J. in Nandan Picture's case 'do not warrant a proposition that once an injury has been caused by a wrongful act, if a suit is filed after the wrongful act is completed, no relief by a mandatory injunction can be granted with regard to the wrongful act complained of'.

28. Mere delay in filing the suit cannot obviously have the effect of putting a premium to wrongful acts so as to allow the wrongdoer to reap the benefit of his act till the suit is finally disposed of. If the status quo has been changed or altered by a wrongful act the Court should not be hesitant to exercise its power to restore the status quo ante even at the interlocutory stage by an order of mandatory injunction simply because the status quo at the date of the filing of the suit is different from what it was before. And that is bound to be different as cause of action for a suit is antecedent to the filing of the suit unless of course the suit is filed on the very day the wrongful act is done.

29. In this connection my learned brother is perfectly correct in observing that this Court in Nandan Picture's case (supra) 'was not really excluding the state of things which should have in law existed on such a date but for the wrongful act of the defendant of altering such a state of things.'

30. Unless this interpretation is put on the decision it is bound to land one in an absurd situation as already discussed, which Chakrabarti, C. J. never intended to create.

31. In the instant case the grossly illegal acts of the defendant landlady were sought to be camouflaged under an ineffective patch of legal colouring which must have been done under legal advice. Unfortunately, these illegal acts were aided and abetted by the police, which again is an ominous trend and should be deprecated in no uncertain language.

32. This is, therefore, a fit case calling for restoration of possession to the plaintiff appellant at the interlocutory stage. To do otherwise would be to allow the defendant to perpetuate the wrong she has committed and to reap the benefit of her illegal acts which law can never permit.


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