NAGENDRA KUMAR RATHI Vs. RAJENDRA KUMAR

JUDGEMENT

(1.) This storm in the real-estate tea cup of Kolkata arises out of an appeal from an order dated March 8, 2018 by which the Learned Judge, 6th Bench in the City Civil Court at Calcutta rejected a petition for temporary injunction under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure, in Title Suit No.1471 of 2017 inter alia for declaration and permanent injunction pending before it. There are three defendants in the suit - the defendant no. 1 who is the brother of the plaintiff/appellant and claims to be the erstwhile lessee of the property, the defendant no. 2, the original owner of the property, and the defendant no. 3, being the alleged transferee of the lease by the defendant no. 2 to it, on surrender of the original lease by the defendant no. 1. The plaintiff/appellant claims to have become the tenant of the defendant no. 2 by operation of law, on the surrender of the lease by the defendant no. 1, with the defendant no. 3 merely obtaining the rent receiving interest, since the deed of lease itself recorded the presence of existing occupants and the schedule indicated that the 40 year old two storied building thereon as transferred by the said lease was fully tenanted. Initially, the plaintiff/appellant obtained an ex parte ad interim order on the basis of the documents annexed to the petition and copies filed with the plaint, on November 17, 2017, which was extended from time to time. However, on contested hearing on objections in writing being filed by the defendants no.1 and 3 separately, the said petition for injunction was dismissed, primarily on a finding that no prima facie case had been made out in favour of the plaintiff/appellant before the said learned court, by the order dated March 8, 2018. The temporary injunction sought was in respect of the property situated at 6A, Dr. Harendra Coomar Mukherjee Sarani (previously 6, Pretoria Street) Police Station Shakespeare Sarani, Kolkata-700071. Even though the defendant no.2/respondent appeared before the learned trial court, he has not appeared before us because no notice was served on him. On January 28, 2020 after recording the above facts, we also recorded the submission of Mr. Mukherjee, learned senior advocate who, on instructions, prayed for dispensation of service of notice on the defendant no.2/respondent. We had granted the said prayer at the appellant's risk and peril. The defendant no.2/respondent having executed a long term lease in favour of the defendant no.3/respondent, has been party to a transfer and may not immediately be too concerned as to what transpires in respect of the leasehold prospects so long the lessee performs its part of the obligations under the lease with respect to the defendant no.2/respondent.

(2.) The heat generated by the learned counsel arguing the matter with great ability in January 2020, dissipated in the cooler confines of mature reflection and I have found that despite the seductive allure of the various arguments made before me, and the precedents cited, the dispute in this case, is in a short compass: whether on the face of the documents annexed to the plaint and the petition, to the extent objected to by the defendants/respondents, the plaintiff/appellant has made out a prima facie case that it was in possession, and whether there was any triable issue for which the matter would go to trial and till disposal whereof, an injunction protecting such possession, if any, ought to have been granted and/or continued?

(3.) The learned court below and the defendants/respondents have waxed lyrical on the mistake in the case number of the challans showing deposit of rents, though the same was plausibly explained by additional documents, which we had granted leave to adduce before us, and had for this purpose taken up CAN 6745 of 2019 and CAN 269 of 2019 at the time of hearing and now allow since we require the documents thus adduced to pronounce judgment. The learned court below has also dwelt at length on the rent receipt relied upon by the plaintiff/appellant without the agreement for tenancy not being "conclusive" proof at the stage of considering the grant of a temporary injunction pending the hearing of the suit, and that it did not show the extent of the tenancy and has found fault with there being no agreement of tenancy which alone would prima facie evince transfer of interest by the landlord to the tenant according to the learned court below. In addition, the learned court below parroted the submission of the defendants/respondents that a relief of injunction had been prayed for against the defendant no. 1, which had become a stranger after the surrender of the lease but no allegation was made against the defendant no. 2 who was the owner/landlord. In addition the learned court below found the failure of the plaintiff/appellant to put the defendant no. 2 on notice within the prescribed time of its sub-tenancy as something which breathed the spirit of doubt and suspicion about the claim of the plaintiff/appellant.