ASHIM KUMAR BANERJEE.J - (1.) PREMISES no. 46, Park Street, Calcutta is comprised of one bigha of land having two storeyed building having a built up area of four thousand five hundred square feet as claimed by Mr. Roy Chowdhury appearing for Sheila Guha. Armenian Church was the owner of the said premises in question, now under the control and management of Official Trustee, West Bengal. In 1962, the Official Trustee executed a Deed of Lease in favour of one Dr. Mohini Mohan Ghosh for a period of twenty-one years. Dr. Ghosh was granted permission to sublet part of the premises for residential purpose with a rider that he would be obliged to occupy and reside in the said premises retaining major portion of it. The said lease executed on October 4, 1962 was renewed for a further term on the same terms and conditions. The renewed lease expired on February 6, 1985. Mr. Ghosh however, continued in possession. Official Trustee permitted him to retain possession as a monthly tenant on the same terms and conditions as contained in the Deed of Lease. The Official Trustee created the tenancy vide letter dated February 14, 1994, that gave an unfettered right so to say to the Ghoses to stay in the said premises by exploiting a substantial portion of it for commercial gain by subletting. Mr. Roychowdhury however, claimed that he was to bear all statutory outgoing and cost of maintenance of the said property and he used to spend a lac of rupees per month. On that score, we do not find any definite proof. On November 3, 1995, Dr. Mohini Mohan Ghosh died intestate leaving him surviving two daughters and two sons and widow Ava Rani Ghosh, the eldest one was Sheila Guha. The present controversy would relate to a sub-tenant Mohanhal, who came to reside in flat no.4 of the said premises as a sub-tenant under Mohini Mohan in 1968. On December 17, 1984 Mohanlal died leaving him surviving his widow and sons including Rahul and Rajeev Maheshwari, the appellants in A.P.O. No.32 of 2012, A.P.O. No.33 of 2012 and A.P.O. No. 77 of 2012.
(2.) DISPUTE arose when Rahul bypassed Sheila and others and contacted the Official Trustee directly as also the Church. On August 19, 1999 Rahul and Others (hereinafter referred to as Maheshwari Group) entered into an agreement for development of the said property subject to the approval of Official Trustee. Under the agreement, Maheswaries were to take all steps for clearing of hindrances that might come up in the way of development of the property including making suitable arrangement with the occupants, if possible, by getting vacant possession from them. Wardens of the Armenian Church filed an application being G.A. No.3565 of 2000, inter alia, for obtaining permission of this Court with regard to development of the said property in terms of the agreement referred to above and a corresponding direction upon the Official Trustee to execute the said agreement on behalf of the Church. The petitioners did not press the said application. On November 27, 2003 one of us (Ashim Kumar Banerjee,J.) sitting singly, dismissed the same for default. On November 18, 2004 Maheshwari Group applied for intervention in the said application being G.A. No.356 of 2000 presumably without knowing that the same had already been dismissed for default. The learned Single Judge allowed the said application without knowing that the G.A. No.356 of 2000 had already been dismissed. Vide letter dated August 12, 2005, the advocates for the Church Wardens extended their support to Maheshwaris by indicating that they would have no objection if the Maheswaries would take steps for obtaining vacant and peaceful possession of the property in view of the delay in receiving permission from the Court. Maheshwaris claimed that after being permitted to intervene in the application for permission and after being permitted by the Wardens to take steps for getting the property vacated they entered into an agreement with Sheila Guha where Sheila agreed to vacate the premises on a consideration written therein. She also received a part consideration. The agreement was reduced to writing through a letter dated July 15, 2006 that Sheila signed as a mark of acceptance. Sheila however, denied her signature. Her other relations also disowned the agreement and contended that Sheila had no business to enter into such agreement on their behalf. Sheila's agreement sought to be recorded in the letter dated July 15, 2006 contained an arbitration clause. We are told, the arbitrator already entered upon reference. Sheila's counsel however, disputed such aspect and contended that they would be taking appropriate steps for revocation of the authority of the arbitrator on the ground that there was no agreement at all. Sheila's relations also disowned the arbitrator as they were admittedly not parties to the agreement. In this backdrop, Maheshwaris approached the learned Single Judge by filing an application under Section 9 of the Arbitration and Conciliation Act 1996 and obtained an ex parte order of injunction as well as appointment of receiver in respect of flat no.3 that became vacant in the mean time. The learned Single Judge passed the said ad interim order on September 14, 2006 making it returnable on a subsequent date. The receiver visited the said premises and submitted a report. The learned Judge passed further ex parte order directing the receiver to remain in symbolic position. The learned Judge ultimately heard the matter and dismissed the same vide judgment and order dated November 29, 2011. G.A. No. 3821 of 2007 was filed by Sheila for discharge of receiver that was dismissed for default and, subsequently, restored. G.A. No.758 of 2010 was filed by Ela, sister of Sheila seeking leave to intervene and C.C. No.3 of 2008 was an application for contempt complaining violation of ex parte orders dated September 14 and 25, 2006. All the pending applications were heard analogously and disposed of by the learned Judge vide judgment and order impugned herein.
(3.) THE analysis of the judgment and order of the learned Single Judge would reveal as follows :- i) Parties to the agreement dated August 19, 1999 could do nothing about the matters covered thereby. ii) If Maheshwaris did not have present right in respect of the property notwithstanding their assertion of the purported agreement that Sheila Guha alleged to have executed, the rights of the heirs of the original tenant at the premises can scarcely be affected. iii) Church or his wardens were not interested to act upon the agreement of 1999 even if the agreement between Maheshwari and Sheila given credence it would not help Maheshwari to act in furtherance of the agreement of 1999. iv) The Court disbelieved the Maheshwari's argument on joint tenancy represented by Sheila to bind the other tenants. v) Trust properties cannot be dealt with by trustees with even the remotest motive of personal gain. The best terms may generally come upon bids being invited. vi) The Wardens here showed extraordinary enthusiasm in entering into a private deal with private persons and expecting the official trustee to rubber stamp it. vii) There was no merit in the application made under Section 9. His Lordship disposed of all the pending applications. While doing so, His Lordship directed as follows :- "One or more flats at premises No.46 Park Street to which the joint tenants are entitled remain vacant. It is not inconceivable that the vacant flat or flats may be subject by the joint tenants against a substantial initial payment. Judicial notice must be taken of the fact that possession is made over by tenants in prime commercial locations to sub-tenants against hefty initial payments, more often than not in cash. Since the property belongs to a trust which earns a measly amount of less than Rs.3000/- per month for an asset that should fetch it lakhs of rupees a month, it would be injudicious to allow the joint tenants to enjoy such bonanza with the church or its relevant trust being left in the lurch. Sheila Guha, who is one of the joint tenants and actually in occupation of the vacant flat or flats, has volunteered to take prior permission of the Official Trustee before creating any subtenancy in respect of any portion of the premises in occupation of the joint tenants. Accordingly, in keeping with the ethos of Section 25 of the 1913 Act, the joint tenants are permitted to create any sub-tenancy in favour of any other in respect of any portion of premises No.46 Park Street under their occupation, but only after obtaining the previous sanction of the Official Trustee. The Official Trustee should not unreasonably withhold the permission if the initial premium for creation of any sub-tenancy appears to be reasonable to the Official Trustee and the joint tenants offer three-fourths of such amount to the trust. Such order may not be seen to have detracted from any rights of the trust qua the joint tenants in any manner whatsoever." According to Mr. Utpal Bose, learned Judge made observations that would foreclose the rights and privileges the appellants had under the agreement of 1999. The learned Judge's observations also prejudiced his rights and contentions under the agreement with Sheila pending consideration before the arbitrator. Mr. Bose further contended that the scope of the application made under Section 9 was for interim protection during pendency of the arbitration. The learned Judge could not have issued direction with regard to creation of further tenancy in respect of vacant flat. Mr. Bose also contended that the comments made on the agreement of 1999 was beyond jurisdiction. He further contended that the learned Judge failed to appreciate, further creation of third party right in respect of any of the portions by Sheila, would cause prejudice to the lis pending before the arbitrator. He lastly contended that the appellant moved His Lordship along with the application under Section 9. Sheila did not make any prayer at all for permission to sublet. Giving directions for subletting was thus beyond jurisdiction and in any event would interfere with the 1999 agreement. On merits, Mr. Bose contended that His Lordship failed to appreciate the scheme of 1989 as well as the letter of the Church dated August 12, 2005 extending support to the appellant through their lawyer. He prayed for setting aside of the order of the learned single Judge and an order of status quo restraining Sheila from dealing with and/or disposing of any part of the property.;