Raja Mukherjee Vs Utpal Sarkar Alias Bappa — Calcutta HC (2024) — LawSathi Research

Raja Mukherjee Vs Utpal Sarkar Alias Bappa — Calcutta HC (2024) — LawSathi Research

What the court decided

AI extract

Outcome

The portion of the impugned order directing local inspection under Order 39 Rule 7 CPC is set aside as premature and erroneous, with liberty to the plaintiff to renew the prayer if the occasion arises; the order of temporary injunction remains operative and binding on the parties unless varied, vacated or modified by a superior court; the revisional application is disposed of accordingly.

Issue for consideration

Whether the trial court was justified in allowing the plaintiff's application for local inspection under Order 39 Rule 7 CPC at a stage when the plaintiff was already protected by an order of temporary injunction and the plaint contained no allegation that the defendants were attempting to alter the nature and character of the tenanted property by construction or demolition.

Court's answer

Where the plaint alleges only threatened dispossession and contains no allegation of any attempt to change the nature and character of the tenanted portion by raising construction or demolishing it, and the plaintiff is already sufficiently protected by the order of injunction, a direction for local inspection is premature and erroneous; such an order is set aside, with liberty to the plaintiff to renew the prayer if the occasion arises in future.

Ratio / Principle

Setting aside the local inspection direction does not dilute the injunction: the order of temporary injunction shall be complied with by the parties unless it is varied, vacated or modified by a superior court.

Detailed headnote1 paragraphs

Civil revision (CO 426 of 2024) by the defendants against the order dated December 18, 2023 of the learned Civil Judge (Junior Division), Serampore in Title Suit No.434 of 2021, a suit for declaration of tenancy and permanent injunction. The trial court had allowed the plaintiff's prayer for temporary injunction restraining dispossession and disturbance of peaceful possession of the Ka-1 schedule property, and had also allowed the plaintiff's application for local inspection under Order 39 Rule 7 CPC to bring the condition of the property on record. Held, allowing the challenge in part: where the plaint alleged only threatened illegal dispossession and contained no allegation that the defendants were changing the nature and character of the tenanted portion by raising construction or demolition, and the plaintiff stood sufficiently protected by the injunction, the situation was not mature for a local inspection; the direction was premature and erroneous and was set aside, with liberty to renew the prayer if occasion arose. The order of injunction was directed to be complied with unless varied, vacated or modified by a superior court. Revisional application disposed of. (Shampa Sarkar, J.)

February 21, 2024 Sl. No.9 Court No.19 s.biswas

CO 426 of 2024

Sri Raja Mukherjee

vs. Sri Utpal Sarkar @ Bappa

Mr. A. K. Acharyya Mr. Kushal Chatterjee Mr. Subir Banerjee Ms. Moumita Das … for the petitioner Mr. Sounak Bhattacharyya Mr. P. D. Mukherjee Ms. Ankita Das Mr. Ayush Shaw ... for the opposite party

The revisional application arises out of an order dated December 18, 2023 passed by the learned Civil Judge (Junior Division) at Serampore in Title Suit No.434 of 2021.

By the order impugned, the application for temporary injunction filed by the plaintiff was allowed. The defendants and their men and agents were restrained from dispossessing the plaintiff as well as from creating any disturbance in the plaintiff’s peaceful possession of the Ka-1 schedule property and stood on that day till the disposal of the suit.

The second part of the order is assailed before this court by the defendants. By the said order, the application for local inspection under Order 39 Rule 7 of the Code of Civil Procedure filed by the plaintiff/tenant was allowed. The learned court held

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that the condition of the property should be brought on record before any change takes place.

This is a suit for declaration of tenancy and permanent injunction. The opposite party claims to be a tenant in respect of one residential flat consisting of three bed rooms, one dining cum kitchen, two toilets with adjoining space with water and electric connection in the south-east side in the ground floor of main building being Municipal Holding No.1, Amarnath Road (Ward No.14), within the jurisdiction of Uttarpara Kortung Municipality.

The suit was filed with the allegation that the defendants along with their men and agents were trying to dispossess the plaintiff from the tenanted property illegally and forcefully. The allegations of threat and intimidation have also been made. Apprehending an illegal eviction, the suit was filed. In the plaint, there is no allegation that the defendants were trying to change the nature and character of the tenanted portion either by raising any construction or by demolishing the same. The plaintiff has been sufficiently protected by the order of injunction. The learned court has directed specifically that the defendants and their men and agents would be restrained from disturbing the plaintiff in respect of the property in question and they should not be disturbed in any way. When

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such protection has been given and when there is no allegation that attempts have been made to dispossess the plaintiff from the property by either demolishing or by interfering with the structure which the plaintiff is occupying, the question of local inspection would not arise.

This order has been passed at a stage when the situation was not mature for a local inspection. There has to be some reason for the court to direct the local inspection. In this case, when the plaintiff has been sufficiently protected and when there are no allegations of any interference by the landlord with the property in question, the order is premature. If the occasion so arises in future, the plaintiff can renew his prayer, but at this stage the order impugned with regard to local inspection is erroneous and is thus set aside.

However, it is made clear that the order of injunction shall be complied with by the parties, unless it is varied, vacated or modified by a superior court.

The revisional application is accordingly disposed of.

All the parties are directed to act on the basis of the server copy of the order.

Urgent Photostat certified copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.

(Shampa Sarkar, J.)