Poonam Kejriwal Vs. Bhagwandas Auto Finance Ltd. and ors. - Court Judgment

Bhaskar Bhattacharya, J.

1. This first miscellaneous appeal is at the instance of a plaintiff in a suit for declaration of title, permanent injunction, mesne profit and is directed against Order No. 5 dated 18th November, 2008, passed by the learned trial Judge thereby dismissing an application for temporary injunction filed by the appellant.

2. Being dissatisfied, the plaintiff has come up with the present first miscellaneous appeal.

3. The appellant before us filed in the Fourth Court of Civil Judge, Senior Division, Alipore, a suit being Title Suit No. 2541 of 2008 thereby praying for the following relief:

a) A declaration that the plaintiff is the owner of the said flat, more fully and particularly described in the Annexure-'A' to the plaint entitled to the quite, exclusive and vacant possession of the same to the exclusion of all others including the defendants and each of them;

b) A decree against the defendants and each of them including the defendant No. 3 directing the eviction of each of them from the said flat more fully and particularly described In the Annexure-'A' to the plaint;

c) A decree against the defendants and each of them for recovery of quiet, vacant, peaceful and exclusive possession of the said flat more fully andparticularly described In the Annexure-'A' to the plaint to the plaintiff;

d) A perpetual; order of injunction be passed against the defendants and/or each of them by themselves or by their officers or agents or employees or servants or assigns or otherwise howsoever from entering upon or remaining or occupying and part or portion of the said flat, more fully and particularly described in the Annexure-'A' to the plaint, in any manner whatsoever;

e) A perpetual order of Injunction be passed against the defendants and/or each of them by themselves or by their officers or agents or employees or servants or assigns or otherwise howsoever from disturbing or interfering with or obstructing the plaintiffs exclusive user, occupation and enjoyment of the said flat, more fully and particularly described in the Annexure-'A' to the plaint, in any manner 'whatsoever;

f) A decree for Rs. 70,000/- towards mesne profits against each of the defendants as pleaded in paragraph 22 hereof;

g) Alternatively, an enquiry to ascertain the mesne profits payable by each of the defendants and a decree for such sum as may be found due and payable upon such enquiry;

h) For the purposes aforesaid all necessary enquiries, accounts and directions;

i) Receiver;

j) Injunction;

k) Attachment;

l) Costs;

m) Such further or other relief or reliefs as this Learned Court may deem fit and proper.

4. The case made out by the plaintiff was that there was an agreement for licence between the plaintiff and the defendant No. 1 for eleven months but even after the expiry of such licence, the defendant No. 3, the wife of the defendant No. 2 had been staying in the suit property. According to the plaintiff, the defendant No. 3, the wife of the director of the defendant No. 1, is a rank trespasser and has no right to stay in the said flat.

5. In connection with the said suit, the plaintiff came up with an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure thereby praying for temporary injunction as mentioned below:

a) An order of temporary injunction restraining the respondents each of them, their servants, agents or assigns from in any way or manner interfering with the possession and right to enjoyment of the plaintiff in any way or manner whatsoever;

b) An order of temporary injunction restraining the respondents and each of them, by themselves or by their servants or agents or assigns or otherwise howsoever from in any way or manner disturbing the right title and interest of your petitioner of and In the suit flat;

c) An order of temporary injunction restraining the respondent No. 3, her men servants, agents and assigns from asserting or claiming any right of and in the suit flat, in any way or manner howsoever or whatsoever;

d) An order of temporary injunction restraining the respondents their respective servants, agents or assigns from in any way or manner taking any steps to or remove any goods, furniture and fixture belonging to the petitioner and lying at the suit flat;

e) An order of temporary injunction restraining the respondents and each of them, their respective men servants agents and/or, assigns from entering into the suit flat or any part or portion thereof in any way or manner howsoever or whatsoever;

f) An order of injunction be passed directing' the respondents and each of them jointly and/or severally to make deposit in such manner as this learned Court may deem fit and proper the mesne profit and/or damages for such wrongful and unauthorised use enjoy and occupation of the suit premises on and from 7th August, 2008 until handing over the vacant has and peaceful possession thereof to your petitioner calculated at the rate of Rs. 10,000/- per diem until the disposal of the suit;

g) An order of temporary. Injunction be passed restraining the respondents each of them, their servants, agents or assigns from in any way or manner interfering with the possession and right to enjoyment of the plaintiff;

h) Ad interim orders in terms of prayers (a) to (g) above;

i) The respondents and each of them be directed to bear the costs of and incidental to the Instant application and to pay the same to your petitioners herein;

j) Such further and/or other orders be passed and/or direction or directions be given as Your Honour may deem fit and proper.

6. The said application was opposed by the defendant No. 3 by filing written objection thereby contending that the agreement for licence was a camouflage one and was really an agreement for tenancy between the plaintiff and her husband who is the defendant No. 2 and the defendant No. 1 was a company controlled by the defendant No. 2. According to the defendant No. 3, due to matrimonial dispute between the defendant No. 2 and herself, the defendant No. 2 had deserted her and was staying in a different place. She had already filed proceedings under the Protection of the Women from Domestic Violence Act, 2005 and has obtained an order against her husband and other members of his family from disturbing her possession in the suit flat. The defendant No. 3, therefore, really claimed to be the wife of the lawful tenant under the plaintiff.

7. The defendant Nos. 1 and 2, however, supported the version of the plaintiff but expressed their inability to vacate the suit property, in view of the fact that the same was in forcible occupation of the defendant No. 3.

8. The learned Trial Judge, on consideration of the materials on record, came to the conclusion that the defendant No. 3 was in exclusive possession of the property. The learned trial Judge was of the view, so long the defendant No. 3 was not dispossessed by due process of law, by way of interim order, the Court could not disturb her possession in the property. Regarding the prayer of interim mesne profit, the learned trial Judge held that the question of granting mesne profit would arise only after the passing of decree of eviction with the finding that the defendant No. 3 is a trespasser, and therefore, by way of interim relief, no order of temporary mandatory injunction could be passed against the defendant No. 3 for making payment of any amount by way of occupation-charge as a condition of her occupation. The learned trial Judge, thus, dismissed the application for temporary injunction.

9. Being dissatisfied, the plaintiff has come up with the present appeal.

10. Mr. Dev the learned senior advocate appearing on behalf of the appellant, by relying upon the decision of the Supreme Court in the case of Purushottam Das Bangur v. B. Majumdar Samajpati and Sons Hotel Private Ltd. reported in : (2008) 7 SCC Page 447 : AIR 2008 SC 2715 strenuously contended before us that a Court has every power to pass direction upon the defendant to pay a reasonable amount as occupation charge when the defendant is not claiming ownership of the property and particularly when according to defendant No. 3, she is the wife of a tenant. Mr. Dev submits that this Court, therefore, should set aside the order impugned and direct the defendant No. 3 to pay a reasonable amount as occupation charge during the pendency of the suit by way of mandatory injunction.

11. Mr. Talukdar, the learned advocate appearing on behalf of the defendant No. 3, on the other hand, has opposed the aforesaid contention and has submitted that before passing a decree for eviction, the Court cannot pass any order upon the defendant for payment of occupation charge. Mr. Talukder contends that in the case of Purushottam Das Bangur (supra), relied upon by Mr. Dev, the Supreme Court in exercise of its power under Article 142 of the Constitution of India passed a direction for deposit of certain amount but by the said decision, by way of proposition of law, it was never held that a Court is competent to pass such direction as condition of occupying the suit property by way of interim order. Mr. Talukder, therefore, prays for dismissal of the appeal.

12. Therefore, the only question that falls for determination in this appeal is whether in a suit for eviction even of a trespasser, a Court at the instance of the plaintiff can compel the defendant by way of interim order granting mandatory injunction to pay or deposit certain amount as occupation-charge.

13. Before answering the aforesaid question, we should bear in mind that the plaintiff has preferred this first miscellaneous appeal against an order of rejection of her application under Order 39, Rules 1 and 2 of the Code of Civil Procedure by taking aid of Section 104 read with Order 43, Rule 1(r) of the Code.

14. Therefore, in order to succeed in this appeal, the plaintiff must establish that the prayer of mandatory injunction for a direction upon the defendant to deposit occupation-charge comes within the purview of Order 39 of the Code. In the case of Manohar Lal Chopra v. Ral Bahadur Rao Raja Seth Hiralal reported In : AIR 1962 SC 527. It has been held that the effect of the expression If so prescribed in Section 94 of the Code is to prescribe the circumstances in which Court can exercise its power or grant a particular relief and ordinarily, the Court is not to use its inherent power to make the necessary orders in the interest of justice but its duty is to see whether the circumstances of the case come within the prescribed rule. Therefore, in a case where the plaintiff seeks temporary injunction, the Court is required to ascertain whether the facts of the case fall under Order 39. For that reason, in exercise of power of the Court to issue temporary injunction. Section 94 has a role to play; Section 94 , however, does not take away the right of the Court to exercise its inherent power. If the circumstances necessitating the prayer of injunction do not come within the purview of Order 39 and the relief Is prayed in exercise of power under Section 151 of the Code, refusal of such relief by a Court, however, will not make the order appealable under Order 43 of the Code.

15. Therefore, within the scope of this appeal under Order 43, Rule 1(r) of the Code, we shall restrict our scrutiny to consider whether the prayer for grant of temporary mandatory injunction for a direction upon the defendant to deposit a reasonable amount as occupation charge comes within the purview of Order 39, Rules 1 and 2 of the Code.

16. The provisions contained In Order 39, Rules 1 and 2 are quoted below:

1. Cases in which temporary injunction may be granted--Where in any suit it is proved by affidavit or otherwise--

(a) that any property in dispute in a suit in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree; or

(b) that the defendant threatens, or intends, to remove or dispose of his property with a view to 1[defrauding] his creditors,

2(c) that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute In the suit,]

the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging alienation, sale, removal or disposition of the property 3 (or dispossession of the plaintiff, or otherwise causing injury to the plaintiff In relation to any property in dispute in the suit] as the Court thinks fit, until the disposal of the suit or until further orders.

2. Injunction to restrain repetition or continuance of breach.--(1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right.

(2) The Court may by order grant such injunction, on such terms as to the duration of the injunction, keeping an account, giving security, or otherwise, as the Court thinks fit.

17. In the case before us, the plaintiff has described the defendant No. 3 as a trespasser and has prayed for recovery of possession and also for mesne profits as a final relief in the suit. In the application for temporary injunction, although the plaintiff prayed for injunction restraining the defendants from entering into the suit property, such prayer was not made before us and the learned Counsel for the appellant pressed for passing the order for direction upon the defendant No. 3 to deposit occupation-charge in mandatory form as an interim measure.

18. The law relating to the grant of interim mandatory injunction is now well-settled by the Supreme Court in the case of C.D. George v. Assistant Commissioner of Central Excise, Trichur reported in : AIR 1990 SC 847 in the following terms:

The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy-until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are:

(1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.

(2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.

(3) The balance of convenience is in favour of the one seeking such relief.

Being essentially an equitable relief the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the Court to be; exercised in the light of the facts and circumstances in each Case. Though the above guidelines are neither exhaustive or Complete or absolute rules, and there may be exceptional circumstances needing action, applying them as prerequisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion.

(Emphasis supplied).

19. In a subsequent case of the Supreme Court in the case of Metro Marins and Anr. v. Bonus Watch Co. (P) Ltd. and Ors. reported in : (2004) 7 SCC 478 : AIR 2005 SC 1444 a three-Judge-Bench of that Court had occasion to consider whether in a case of recovery of possession from a licensee after the expiry of the alleged licence, the Court can direct a receiver already appointed in the suit to take symbolic possession and to put the plaintiff into possession under the authority of the Receiver subject to the result of the suit in that context, the Court made the following observations:

Once the possession of the appellant either directly or through his agent (caretaker) is admitted then the fact that the appellant is not using the said property for commercial purpose or not using the same for any beneficial purpose1 or the appellant has to pay huge amount by way of damages in the event of he losing the case or the fact that the litigation between the parties is a luxury litigation are all facts which are irrelevant for changing the status quo in regard to possession during the pendency of the suit.

20. Therefore, the mere fact that in the event, the suit succeeds in the long run, the defendant No. 3 would be required to pay huge amount of mesne profits, is no ground to pass a mandatory injunction disturbing possession of the defendant during the pendency of the suit. If that be the position, there is also no ground for passing a direction upon the defendant by way of mandatory injunction to deposit any amount of money as occupation-charge as condition of her stay by way of security because there cannot be a mandatory injunction for payment of money by temporary measure even before passing of the decree for mesne profit, the injury being not irreparable and being capable of being compensated in terms of money. Therefore, in the facts of the present case, there is no scope of grant of any temporary mandatory injunction within the ambit of Order 39 Rules 1 and 2 of the Code prayed for by the plaintiff.

21. We now propose to deal with the case of Purusottam Das Bangur and Ors. v. B. Mazumdar Samajpati and Sons Hotel Private Limited reported in : (2008) 7 SCC 447 : AIR 2008 SC 2715, strongly relied upon by Mr. Dev.

22. In the case of Purshottam Das Bangur and Ors. (supra), the plaintiff filed a suit for eviction against his tenant in the original side of this Court. It was alleged that the tenant had encroached upon the other portion of the property which is not the subject matter of tenancy and as such, the landlord prayed for interim direction for payment of additional amount as occupation-charge. The learned single Judge and the Division Bench in appeal refused such prayer and the matter went before the Apex Court at the instance of the landlord.

23. While disposing of such an appeal, the Apex Court was prima facie of the view that there was encroachment at the instance of the tenant and thus, passed a direction for deposit of Rs. 25,000/- a month by way of interim relief by making the following observations as it appears from paragraphs 6 and 7 of the corrected judgment vide Official Corrigendum dated April 6, 2008 as would appear from the editorial note in SCC:

6. In our view, the only order that can be passed in the special leave petition is to direct the petitioners to deposit a sum of Rs. 25,000/- every month in Court without going into the merits as to whether the respondents are entitled to use the terrace and also the makeshift arrangement made by him on the same for the purpose of running the hotel in addition to their tenancy. It is no doubt true that the Court will decide at the final stage whether the construction or the makeshift arrangement made in the terrace and other portions of the demised premises by the respondents were unauthorized or not and whether the terrace and other places where makeshift arrangement has been made by the respondent for the purpose of running the hotel would be considered at the time of final decision of the suit. Therefore, after hearing the learned Counsel appearing for the parties and after going through the allegations made in the application and the objections filed therein and the report of the Advocate Commissioner, in our view, it would be fit and proper that by an interim measure a direction must be given to the respondent to deposit Rs. 25,000/- every month in Court within 15th of each succeeding month, the first of such deposit shall be made by 15th of April, 2008 and in default of any of the two deposits, it would be open to the petitioners to recover the amount from the respondent in accordance with law.

7. We make it clear that we have not gone into the merits as to whether the tenancy consists of terrace and the makeshift arrangement of rooms in the terrace would be included in the tenancy agreement of the respondent which shall be decided at the final hearing of the suit. We also make It clear that direction to deposit the rent of Rs. 25,000/- per month to use the terrace rooms and other makeshift arrangement would not mean that the appellants are not the tenants of the said rooms which are now being used by them for running the hotel business and we keep it open for the parties to lead evidence on that question which shall be decided after taking evidence at the final hearing of the suit.

24. The attention of the said Bench consisting of two Judges was drawn to the earlier decision of a larger bench in the case of Metro Marins AIR 2005 SC 1444 (supra), in support of the plea that such order could not be passed when the bench answered in the following terms as would appear from paragraph 8 of the judgment.

Before parting with this order, it would be necessary for us to refer to a decision of this Court in the case of Metro Marins and Anr. v. Bonus Watch Co. (P) Ltd. and Ors. : (2004) 7 SCC 478 : AIR 2005 SC 1444 which was strongly relied by Mr. Jaideep Gupta learned senior counsel appearing for the respondents. Since, we are not granting any order of injunction against the respondent excepting that a direction has been made on the respondent to deposit Rs. 25.000/- per month, we are not in a position to rely on this judgment for the purpose of deciding this special leave petition.

(Emphasis supplied).

25. It appears from the said decision that their Lordships did not consider the case of Metro Marins because according to their Lordships, the Court was not granting any order of injunction against the respondent except passing a direction for deposit of Rs. 25,000/-. In other words, according to the said decision, passing of direction for deposit of a fixed amount of money every month is not an order of injunction. If such direction is not an order of injunction, in our opinion, refusal to pass such direction by the learned trial Judge in this case cannot bring the case within Order 43 Rule 1(r) of the Code to make the order impugned an appealable one.

26. Secondly, it appears from the decision in the case of Purushottam Das Bangur (supra), that in that case no proposition of law was laid down as to whether in a suit for eviction of a tenant if the tenant encroaches the property of the landlord which is not the subject-matter of the tenancy, a Court dealing with such suit can in addition to any amount equivalent to the rent last paid by the tenant in terms of the West Bengal Premises Tenancy Act can direct the tenant to deposit such other amount for occupation which according to the landlord is not even the subject' matter of the tenancy. Their Lordships simply passed the direction by keeping all the points open. It is now settled law that a decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. (See State of Orissa v. Sudhansu Sekhar Misra reported in : AIR 1968 SC 647).

27. It is, therefore, apparent that in the case of Purushottam Das Bangur : AIR 2008 SC 2715 (supra), the Apex Court for doing complete justice between the parties in exercise of its power conferred under Article 142 of the Constitution of India passed such direction.

28. We, therefore, hold that in a suit for eviction and mesne profits against an alleged trespasser, there is no scope of passing any interim order in terms of Order 39 of the Code to direct the defendant to pay any amount of money as occupation-charge as condition of staying in the property before decision on merit.

29. The learned Trial Judge, thus, rightly dismissed the application under Order 39 Rules 1 and 2 of the Code and we find no reason to interfere with the just discretion exercised by the learned Trial Judge. The appeal is, thus, dismissed.

30. In the facts and circumstances, there will be, however, no order as to costs.

I agree.