Decided on July 06,1995

Tracks Trade Private Limited Appellant
Samir Sobhan Sanyal And Others Respondents


B.M. Mitra, J. - (1.)The instant revisional application is directed against Order No. 126 dated 9-2-1995 passed by the 2nd Court of the learned Assistant District Judge at Alipore in Misc. Case No. 29 of 1993. The said misc. case arises out of a proceeding on an application under Order 21, Rule 99,100 and 101 read with Sec. 151 of the Code of Civil Procedure. The admitted position is that the plaintiff opposite party No. 1 is a retired employee of proforma defendant/opposite party No. 10 being India Foils Limited. The said opposite party No. 1 was provided with an accommodation in the suit premises as a licence by the proforma defendant/opposite party No. 10 as an amenity attached to his services. In the original petition leading to the initiation of the misc. case, the said opposite party No. 1 has also asserted that he came into possession of the said premises as Chief Executive of proforma defendant/opposite party No. 10 India Foils Limited and he subsequently rose up to the position of the president of the said company. The said opposite party No. 1 has further asserted that he was let into possession into possession of the suit premises pursuant to an agreement entered into between the said opposite party and the company, as a result of which he was provided with an accommodation and it was further mentioned therein that the same would be allowed to be enjoyed by him till he was offered an alternative accommodation. The suit property which is being occupied by the plaintiff/opposite party No. 1 in his capacity as licence of the tenant inducted in the suit premises but the said opposite party continued to remain in possession even after his retirement from service and/or exit from the company. In respect of the suit property, there was a suit filed in the 2nd Court of Assistant District Judge at Alipore being Title Suit No. 136 of 1986 for specific performance of an agreement against the predecessor-in-interest of the opposite party Nos. 7,8 and 9 since deceased. The said suit was decreed on contest sometime on 18-11-1991. The decree in question was put into execution in Title Execution Case No. 4 of 1992 before the same Court and a writ of delivery of possession was ultimately issued. It was averred in the revisional application that execution was completed with the help of the bailiff and possession was delivered in favour of the nominees who are figuring as opposite party Nos. 3 to 6 in this proceeding. Simultaneously with delivery of possession it is averred in the revisional petition that an Indenture of Lease was entered into between the parties and the revisionist petitioner was inducted as a lessee of the suit premises at a monthly charge of Rs. 10,000.00 payable according to the English Calendar month.
(2.)That in the parent petition leading to the initiation of the connected misc. case, it was specific case made out by the petitioner in the said misc. case that he was provided with residential accommodation as a benefit attached to his services. The Court by way of elicitation of enquiry came to know from Mr. M. L. Bhattacharya, the learned Advocate of the plaintiff/opposite party No. 1 that he would be prepared to pay rent to the proforma opposite party No. 10. The Court was bill perplexed to take note of the readiness of the plaintiff/ opposite party No. 1 to pay the rent payable by India Foils Limited to the landlord which could not be reconciled with the stand taken by the said opposite party that his lien of occupation on the premises is continuing. After the decree passed in the aforesaid suit for specific performance was executed, the said opposite party No. 1 filed the instant misc. case. The said defendant/opposite party No. 1 appears to have been attempted to be dispossessed from the suit premises in execution of the earlier suit as referred to above for specific performance where the plaintiff/opposite party No. 1 was not figuring as a party. After the suit for specific performance was decreed, the proforma defendant/opposite party No. 10 came to an understanding with the then landlords of the premises and they recognised the said landlords as lawful landlords of 16, Mayfair Road, Calcutta under whom the proforma defendant/ opposite party No. 10 was figuring as a tenant. The said company has accepted not only the relationship of the parties as landlord and tenant and they wanted to extricate themselves from the course of marathon process of manifold offshoots of litigation's. Accordingly, the said company surrendered their tenancy in favour of the then landlords which would be appearing from the letter dated 8-10-1993 addressed by the Secretary of the company which is marked as annexure 'D' to the original revision petition. The same appears to be followed by adoption of resolution passed by the Board of Directors of India Foils Limited at their meeting held on 10-12-1993 where the company took the definite stand that it had not sublet or underlet or assign any right of the tenancy to anybody. The company also noted the factum of surrender of the tenancy in favour of the landlords and it also recorded that the company's possession was recovered by the owners apart from the resolution regarding the factum of surrender. It is also further mentioned therein that no employee of the company, past or present, has any right, title or interest in the said premises. In terms of the communication made by the company on 8-10-1993, the said company has not only abandoned its claim in respect of the property in question but also wanted itself to be exonerated from the liability of payments of rent since possession was parted with in favour of the owners. In the backdrop of the same in the petition for misc. case arising under Order 21, Rules 99, 100 and 101, prayers were made therein for declaration of the right and interest of the said defendant/opposite party No. 1 vis-a-vis the right of the India Foils Limited and entitlement of the said opposite party to be in occupation of possession of the same suit premises and restoration of possession forthwith. The nature of the original misc. case, according to Mr. Bachwat, the learned Counsel appearing on behalf of the said defendant/ opposite party No. 1, is to be taken as a proceeding under Order 21, Rule 99 of the Code of Civil Procedure. Mr. Bachwat, the learned Counsel, has further elaborated his contention by saying that Rule 99 of Order 21 of the Code of Civil Procedure gives right to any person other than the judgment debtor if he is is possessed from the immovable property. in this context, a reference may be made to a salient piece of the argument advanced by Mr S. P. Roy Chowdhury, the learned Advocate appearing on behalf of the petitioner, that Rule 99 of Order 21 is required to be read further in terms of the provision when dispossession will take place by the holder of a decree for possession of such property. According to Mr. Roy Chowdhury, such question will be required to be determined in accordance with Rule 101 of Order 21 as aforesaid but the applicant in misc. case must assert against the act of the decree holder seeking adjudication. According to Mr. Roy Chowdhury, the prayer in the misc. case as couched would indicate that in a proceeding under Rule 99 of Order 21, a relief in prayed for declaration of the right in interest of the petitioner not only vis-a-vis he decree holder or the owner of the property but also adjudication of the right of the India Foils Limited. India Foils Limited who is in actual constructive possession has not come forward in the misc. case. The said defendant/ opposite party No. 1 has never asserted his independent right nor he has put forward a claim as a trespassers to the property but he has all along been trying to take refuge under the umbrella of the protection of the original tenant India Foils Limited wherein he is living as a licence. This, according to Mr. Roy Chowdhury, is not a case set up by a third party by way of assertion of independent right or right of hostility of lawful claim but as a licence of a person in the eye of law being in actual physical possession. According to Mr. Roy Chowdhury, the same does not come within the purview of Order 21, Rule 99 and as such the said question namely which has been espoused for determination of rights of India Foils Limited do not come within the ambit of all questions as contemplated under Rule 101 ofOrder 21 of the Code of Civil Procedure. The defendant/opposite party No. 1 ought to have asked for determination of a question relating to his independent right, title or interest in the property only vis-a-vis the decree holder but not vis-a-vis India Foils Limited. Mr. Roy Chowdhury is right to elaborate the submissions of Dr. Manotosh Mukherjee by contending with force that the proceeding itself in the nature of initiation of a misc. case is misconceived.
(3.)In the backdrop of the same series of applications are being filed by the petitioner and all the petitions are for interim relief of restoration of possession. The learned Judge by the impugned order refuses to consider the said successive petitions for restoration of possession in the suit property till the disposal of the matter namely the misc. case and has further ordered rejection of the said petition on contest. Dr. Manotosh Mukherjee, the learned Counsel appearing on behalf of the petitioner, has assailed the said order as for not being backed up by proper reason and further grievances were made before this Court that the order impugned bespeaks of complete non application of mind on the part of the adjudicating authority. Dr. Mukherjee has referred to in this context and has relied upon the case of Vasuja Viswanath Saraf Vs. New Education Institute, reported in AiR 1986 Supreme Court 2105 and it has been quoted by Dr. Mukherjee that when there is statutory provision for appeal to the higher Court in the hierarchy of Courts in order to enable the superior Court or the Appellate Court to know or to be apprised of the reasons which impel the Court to pass the order in question, the recording of reasons in disposing of those applications is a mandatory requirement to be fulfilled in consonance with the principle of natural Justice, it is no answer at all to this legal proposition that for the purpose of expeditious disposal of cases a laconic order like dismissed or rejected will be made without passing a reasoned order or a speaking order. Dr. Mukherjee has further contended that there is intrinsic inconsistency between the impugned order and the order passed on an earlier occasion being Order No. 57 dated 17-1-1994. Non disposal of the said petitions in succession in accordance with law on merits is likely to make them in fructuous. The said petitions have been kept pending in the file of the Court from the end of 1993 onwards. A further reference was made to Order No. 52 dated 201-12-1993 passed by the Trial Court wherefrom it appears that a special Officer was appointed at the material point of time at a tentative remuneration of Rs. 5,001.00 for the time being and the said special Officer was further authorised to appoint a clerk to help him. While disposing of the petition under Order 39 Rules 1 and 2 of the Code of Civil Procedure, the Trial Court has allowed continuation of posting of police in the suit premises till 27-1 -1994 which would be borne by the defendant/opposite party No. 1. This Court has been apprised that the order of police posting by the Court is continuing even as on this date, as a result of which huge accumulations of dues on account of police help was there to the tune of more than Rs. 8 lacs, this Court has been further apprised that now in order to reduce the load of financial liability, lessor number of police personnel are posted at the site, as a result of which there is a recurring liability of payments on account of police cost at the rate of Rs. 1,400.00 per day. An apprehension has been expressed on behalf of the petitioner that it may escalate into a staggering figure and that may encumber the property. It has been pointed out that insistence was made for disposal of successive petitions for recovery of possession in the pendency of the misc. case so that the property in question may not be burdened with onerous liability. It has been contended by Dr. Mukherjee that on a speculative misc. case which is doubtful as to whether the same can be maintained, property should not have been allowed to be encumbered. However, Sri Mihir Lal Bhattacharjee, the learned Advocate appearing on behalf of the defendant/opposite party No. 1 has submitted in this context that the application for considering the apportionment and fixation of financial liability on account of police help is under consideration before the Trial Court and there is no knowing as to how the liability will be affixed on the respective parties. Mr. Bhattacharjee also tried to make disparate submission that it may be possible in the event if it is held that posting of police is necessary in the suit property to prevent breach of peace then it ought to have been the liability of the State. In a proceeding under the relevant provision of the Code of Criminal Procedure, such orders can be passed only on apprehension of disturbance of public tranquillity. But here, in this case, in a civil adjudication arising out of a private property, police posting was necessary and if it could not be directed to be borne by the State then property would likely be encumbered. The defendant/opposite party No. 1, in the considered opinion of this Court for ends of Justice, should not be allowed to pursue merely with speculative litigation by encumbering the suit property with huge liability of encumbrance over the same in terms of financial commitment. Mr. Bhattacharjee, on behalf of his client, did not agree to put any substantial portion of amount in Court by way of security deposit so that the escalating financial liability on account of police cost can be taken care of. This Court while considering a revisional application and being alive to the entire scope of the present amended provisions of Sec. 115 of the Code of Civil Procedure is of the view that for ends of Justice and to prevent irreparable harm or prejudice to the suit property, the same should not be allowed to be clouded by uncertainty of financial commitment. The learned Judge of the Court below seems to have missed the vital aspect of the matter on this count and the said oversight has resulted in material irregularity in exercise of jurisdiction because of non disposal of pending petitions for restoration of possession in accordance with law during the pendency of the misc. case. The said non appreciation of an important facet of the controversy may eat into the very vitals of the foundation of the order impugned and the same may appear to be tinctured with irregularity in exercise of jurisdiction resulting in material failure of Justice. On the said consideration alone, the impugned order is liable to be interfered with as this Court is in agreement with Dr. Mukherjee's submission that the order under challenge speaks of complete non application of mind on the part of the learned Judge. Interim order is always in the aid of the final order in a pending lis but here refusal to consider the question of feasibility of passing interim order may not only affect the final order in the pending list but it may expose the property covered in the suit to the risk of irreparable damage which may not be retrieved.

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