Arun Kumar Dutta, J.
1. This revisional application by the defendant-petitioner (hereinafter referred to as defendant) under Section 115 of the Code of Civil Procedure (hereinafter referred to as 'Code') is directed against the order dated September, 1995 passed by the learned Munsif, 3rd court at Alipore, in Misc. Case No. 24 of 1994 before him for the reasons stated therein.
2. The facts, as are relevant for the present purpose, may shortly be set out as follows:
The opposite party-plaintiff (hereinafter referred to as 'Plaintiff) had filed the relevant suit before the court below for eviction of the Defendant from the suit premises on the grounds made out therein.-The plaintiff had obtained an ex parte decree therein on 19-8-92 and had obtained possession of the suit premises in execution of the decree on 20-3-93. The relevant Misc. Case was filed by the defendant before the court below on 19-4-93 for setting aside the ex parte decree on the plea that the summons in the relevant suit had not been served upon him. Even though the Misc. case was filed on 19.4.93, no other step had been taken by the defendant in the relevant Misc. case till 2-9-95 when he had filed an application under order 39, Rules 1 and 2, read with Section 151 of the Code praying for temporary injunction restraining the plaintiff from demolishing the suit premises and making any construction thereon, along-with a prayer for interim injunction in terms thereof for the reasons stated therein. Despite the filing of the said application the defendant had subsequently filed another application under Section 151 of the Code on September 21, 1995 praying for issue of interim injunction in the manner sought for in the first application filed on 2.9.95.
3. The learned Munsif had rejected the aforesaid relevant second application for issue of interim injunction filed by the defendant under Section 151 of the Code on 21.9.95 by passing the impugned order dated 22.9.95 for the reasons recorded therein.
4. Being aggrieved by the Order so passed by the learned Munsif, the defendant has moved this court in revision. It now needs to be considered whether the said Order passed by the court below is required to be interfered with by this court in revision, as sought for by the defendant.
5. Upon hearing the submissions of the learned Advocates for both sides at length and perusal of the materials on record as also the impugned order passed by the court below it clearly seems to me that there is no ground whatsoever for interfering with the impugned order passed by the court below for the following reasons, amongst others:--
i) The learned Munsif appears to have recorded the reasons for rejecting the relevant second application filed by the defendant for issue of interim injunction under Section 151 of the Code. In view of the said order, such as it is, it does not appear to me that he had exercised the jurisdiction not vested in him by law or had acted in the exercise of his jurisdiction illegally or with material irregularity in passing the said order, as he did.
ii) As already indicated above, the defendant had filed the first application for temporary injunction on 2-9-95. He had also prayed for issue of interim injunction therein for the reasons stated therein. But despite the filing of the said application he subsequently had filed the second application under Section 151 of the Code on 21.9.95 praying for issue of interim injunction in the manner sought for in the first application filed on 2.9.95. He did not bother to move the first application before the Court on 22.9.95 when he could very well move his second application before the Court on the same very day, to be rejected by the latter. The second application for issue of interim injunction under Section 151 of the Code could not clearly be held to be maintainable when a similar prayer for issue of interim injunction had already been made by him in the first application filed by him on 2.09.95 which was still pending before the Court, and not moved by the defendant. There could conceivably have been no ground for filing and moving the aforesaid Section application, the way the defendant did. That apart, it would oddly appear from paragraph-9 of the defendant's second application that he had stated therein that he was filing the second application as he could not move the first application filed on 2.9.95 in the absence of the Court But it would pretty clearly appear from the certified copies of the order sheet filed by the learned Advocate for the plaintiff during the hearing that the learned Munsif had very much attended the court on 2.9.95 and had as well passed an order on that very day in the relevant Misc. Case filed by the defendant. The statement of the defendant in paragraph-9 of his second application that the first application could not be moved on 2-9-95 in the absence of the court clearly appears to be incorrect, if not false. Injunction being an equitable relief a person seeking equity must come with clean hands. But the defendant having filed and moved the second application on the aforesaid incorrect/false statement cannot be deemed to have come before the court with clean hands, and was not thus entitled to any equitable relief by way of injunction, as sought for by the second application.
iii) As already indicated above, the plaintiff had obtained ex parte decree in the relevant suit on 19.08.92 and had obtained possession of the suit premises in execution of the decree on 20-03-93. Even though the defendant had filed the relevant Misc. Case before the court below on 19-04-93 for setting aside the ex parte decree no step whatsoever had been taken by him for about two years for issue of injunction till the filing of his first application for temporary injunction before the court below on 2-09-95 when the demolition work in the suit premises had already been carried out, which is stated to have been completed by the middle of September 1995. The plaintiff appears to have waited for a reasonable period after obtaining possession of the suit premises in execution of the decree. The first application for temporary injunction filed by the defendant was already delayed and the second application under Section 151 of the Code filed by him on 21.9.95 was all the more delayed. Delay defeats equity. The defendant is thus not entitled to any equitable relief by way of injunction, as sought for. The demolition work having further already been completed there could neither be any order restraining the plaintiffs from carrying on the demolition work in the suit premises, as sought for.
iv) The suit premises having already been demolished, in the facts and circumstances indicated above, the balance of convenience and inconvenience does not clearly seem to weigh in favour of the defendant for issue of interim order of injunction, as prayed for by him by his second application. The plaintiff is stated to have entered into agreement with a Promoter for constructing flats on the land in question where the suit premises stood. If the interim injunction sought for by the defendant is allowed the plaintiff would not be in a position to carry on construction of flats thereon, for which an agreement had already been entered into by him. It was submitted during the hearing that the plaintiff had obtained finance from the parties concerned who had sought for allotment of the flats to be constructed on the land in question. If the plaintiff is restrained from carrying on construction of flats on the land in question, apart from the question of escalation of cost, he is likely to suffer from legal and other problems from the proposed allottees by whom he is stated to have been financed. The defendant is not likely to suffer any much injury if the Plaintiff is allowed to carry on construction of the flats on the land in question when the suit premises has already been demolished, in the facts and circumstances hereinabove indicated. In the peculiar facts and circumstances herein, the mischief, inconvenience and hardship likely to be suffered by the plaintiff by issue of injunction would be greater than and disproportionate to that likely to be suffered by the defendant if the injunction, prayed for, be not issued. The defendant's relevant application for injunction could not be allowed as such. None of the parties is either likely to be benefitted if the land in question is allowed to remain, as it is. It is also likely to be prejudicial to the defendant himself as he could not be restored to possession of the suit premises, already demolished, if the relevant Misc. Case filed by him for setting aside the ex parte decree eventually succeeds. If the plaintiff is allowed to construct flats thereon, as undertaken, a flat therein could be set apart for the defendant to accommodate him if the relevant Misc. Case filed by him eventually succeeds. The learned Advocate for the plaintiff had submitted during the hearing that 1000 and 1500 Sq.ft. flats are proposed to be constructed on the land in question. It was further submitted that a bigger flat of 1500 Sq.ft. may as well be set apart for the defendant for putting him into possession thereof in case the relevant Misc. Case filed by him eventually succeeds. The injunction sought for by the defendant by his second application under Section 151 of the Code is thus likely to be prejudicial to him as well if the land in question is allowed to remain, as it is, in which case the defendant could not obtain any relief even if the relevant Misc. Case filed by him eventually succeeds.
6. In the aforesaid circumstances, I find no ground whatsoever to interfere with the impugned order passed by the court below. There seems little substance in this revisional application, which is liable to fail, as it must. But in the nature of the matter and as submitted by the learned Advocate for the plaintiff and conceded to by the learned Advocate for the defendant during the hearing, I reject the instant revisional application by directing the plaintiff-Opposite party to set apart one completed Flat of 1500 Sq.ft. for the defendant to accommodate him in case the relevant Misc. Case filed by him for setting aside the ex parte decree eventually succeeds. If the relevant Misc. Case eventually succeeds the Plaintiff-opposite party shall accommodate the defendant to one completed 1500 Sq.ft. Flat by way of restoration of possession, as agreed upon by the learned Advocate for the former during the hearing. The instant revisional application stands accordingly disposed of without any order as to cost.
7. All interim orders stand vacated.
8. The main revisional application having thus been disposed of, the vacating application filed by the plaintiff-opposite party stands accordingly disposed of.
9. If any application for urgent certified copy of this order is made by any of the parties the department shall cause the same to be supplied at the earliest.