TURNER MORRISON LIMITED Vs. ARUN PROPERTIES PVT LIMITED

JUDGEMENT

(1.) ALTAMAS KABIR, J. 1. This appeal is directed against the Order No 119 dated 20th September, 2000, passed by the learned Civil Judge (Senior Division), 2nd Court, Alipore, South 24 Parganas, in Title Suit No. 2 of 1993 filled by the Plaintiff/opposite party herein, rejecting the defendant/ appellant's application for temporary injunction filed on 27th March, 2000.

(2.) As recorded by the learned Court below, the suit was for ejectment and mesne profits and was at the stage of peremptory hearing and evidence when the aforesaid application was filed by the ddefendent appellent under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure praying for an order of injunction to restrain the plaintif/opposite party from letting out the common lawn and open space pertaining to premises No. 13/1 Ballygunge Park Road, Calcutta - 700 019. and also from holding any marriage party or any ceremony or other functions and from allowing vehicles with goods meant lor such functions to enter into the premises" and the open space therein at night till the disposal of the suit. The learned Court below upon considering that the suit was at the peremptory stage and also upon considering the balance of convenience and inconvenience of both sides rejected the defendant/ appellant's said application for injunction on contest but without costs. The suit was iixed for further evidence on 28th November, 2000.

(3.) There is no dispute that the defendant/appellant was inducted into the suit premises under a Deed of Lease for 21 years rommencing from 1st May. 1960, granted by one Jamilur Rahaman, who was the lessee of the suit premises under the previous owner. The lease in favour of the said Jamilur Rahaman Khan had expired by efflux of time at the time of filing of the suit. 4 The plaint case is that the plaintiff purchased the suit premises for valuable consideration on 8th December. 1966, and the defendant had duly attorned its tenancy under the said Deed of Lease dated 1st May, 1960 in favour of the plaintiff and has accepted the plaintiff as its land-lord in respect of the suit premises by paying lease rent in terms of the Deed of Lease dated 1st July. 1960. for the period upto 30th April, 1981. 5. The Deed of Lease executed in favour of the defendant/appellant ended by efflux of time on 1st May. 1981 and the defendant/appellant became obliged to quit and vacate the suit premises and handover vacant possession thereof to the plaintiff. As the defendant/appellant did not do so. the plaintiff/opposite party by a notice dated 19th/22nd June, 1981. filled upon the defendant/appellant to quit and vacate and hand over vacant possession of the suit premises to the plaintiff. The defendant/ appellant, however, did not comply with the said requisition and continued in possession despite such notice. 6. Admttedly. the plaintif/opposite party did not take any steps against the defendents/appllents for almost 12 year, and ultimately filed a suit for eviction against the defendant/appellant on or about 5th January. 1993. The defendant/appellant entered appearance in the suit and is contesting the same by filing its written statement The specific case made out by the defendant/appellant in the written statement is that the tenancy of the defendant/appellant is governed under the provisions of the West Bengal Premises Tenancy Act, 1956, in view of S.3 of the said Act 7. When the suit was ready for hearing and the stage of adducing evidence had anrived the defendent/appellant filed an application for injunction on 27th March, 2000, alleging that under the lease agreement executed in favour of the defendant/appellant it was also entitled to use of the lawns and gardens and pathways in the suit premises and the plaintiff/opposite party had no light during the pendency of the suit to prevent and/or obstruct the defendant/appellant and its officers from using the lawns and gardens and pathways as permitted under the said Deed ol Lease. 8. The case made out by the defendant/appellant in its application for injunction is that at the time ol making such application the plaintiff/ opposite patty had started to interfere with the peaceful enjoyment ol the said lawn and garden and pathways by letting out the same for marriage functions and receptions and other social functions in breach of the lease agreement relating to the rights of the defendant/appellant in respect of the common user of the lawn and other open spaces and pathways pertaining to the suit premises. It was alleged that in connection with marriage and other social functions, for which the common lawn and open space were being let out by the plaintiff/opposite party, a great deal of nuisance and disturbance was being caused to the defendant/appellant and the residents of the premises by the decorators' and caterers' men who began their preliminary work lor such occasions several days before the actual event. It was contended that trucks and other vehicles were allowed to enter into the suit premises not only during the day but also during the night, causing a great deal of disturbance and nuisance to the defendant/appellant and the other occupants and their family members It was also alleged that the marriage parties and other social functions held on (he lawn and garden continued deep into the night with glaring music and use of microphone causing further nuisance and distuibance to the occupants of the premises. It was alleged further that even after the functions were over there were constant brawls between the caterers' men and others due to consumption of alcohol and the open spare meant for the common use of the occupants of the premises is strewn with filth and rubbish leaving a nauseating stench in the premises. Apart from the above, it was also alleged by the defendant/appellant that permanent wooden structures have been set up in the premises for the purpose of marriage receptions and other functions and the plaintiff/opposite party in pursuance of Its evil designs had also illegally closed the second entrance to the premises from the south-west comer of the lawn with bamboo and spilt bamboo. It was alleged further that fnspite of repeated complaints to the focal police authorities, no action having been taken on such complaints, the defendant /appellant was compelled to fife the application for injunction in the suit. 9. Appearing in support of the appeal. Mr. Ashoke Banejee urged that it was settled law that no one. not even a trespasser, could be evicted from a premises under his occupation except in due process of law. Mr. Banerjee submitted that the position of the defendant/appellant was far better since the provisions of Section 116 of the Trapsfer of Property Act, 1882, was squarely attracted having regard to the fact that the plain tiff/ opposite party had taken no steps to evict the defendant/appellant for almost 12 years, which gave rise to a presumption that the plaintiff/ opposite party had consented to the continuance in possession of the defendant/appellant even after the expiry of the lease resulting in holding over of the earlier tenancy. Mr. Banerjee submitted that the said issue was an issue of substance which would have to be decided in the suit. 10. In support of his said submission Mr. Banerjee referred to and relied on a Bench decision of this Court in the case of Munshi Safar Ali Master vs. Abdul Majid. reported in AIR 1927 Calcutta page 279. wherein upon construing the provisions of Section 116 of the Transfer of Property Act in the facts of the said case, which according to Mr. Banerjee were similar to the facts of this case, it was held that since there was an interval of 8 years between the expiry of the lease and the suit, it could be reasonably inferred that the premises was in the possession of the tenant by holding over after the expiry of the lease. 11. Mr. Banerjee submitted that the said decision clearly supported the case of the defendent/appellant that after expiry of the lease the defendant /appellant had continued in possession of the permises by holding over its tenancy under the lease dated 1st July. 1960, executed in its favour by Jamilur Rahaman Khan. 12. Mr. Banerjee submitted that, inasmuch as, the defendant/appellant was continuing in possession of the suit premises on account of such holding over, its rights under the lease of agreement could not be obstructed or disturbed during the pendency of the suit and the learned Court below erred in rejecting the defendant/appellant's application for injunction allegedly on the ground of balance of convenience and inconvenience. 13. Mr. Banejee submitted that the order of the learned trial court refusing to grant injunction on the defendant/appellant's application for temporary injunction was contrary to the provisions of Order 39 Rules I and 2 of the Code of Civil Procedure. In fact, according to Mr, Banerjee, during the pendency of the suit. the balance of convenience and inconvenience lay heavily in favour of an injunction being granted, as prayed for, by the defendant/appellant in order to prevent continuance of the disturbance and obstruction caused to the defendant/appellant in its common enjoyment of the lawn, open space, garden and the pathways with the plaintiff/opposite party. Mr. Banerjee submitted that the defendant/appellant had tried to establish its case that the lease in question was governed by the provisions of the West Bengal Premises Tenancy Act, 1956, and not under the provisions of the Transfer of Property Act. 1882. Mr. Banerjee submitted that the order of the trial court was wholly erroneous and was liable to be set aside and an order of injunction as prayed for was required to be passed in the suit tilt the disposal of the suit. 14. Opposing the appeal, Mr. S. P. Roychowdhury submitted that the very fact that the application for injunction had bee.n made when the suit was ready for hearing and evidence was being adduced, clearly indicated that the same was nothing but a ruse to delay the hearing of the suit after the attempts of the defendant/appellant to bring the lease within the ambit of West Bengal Premises Tenancy Act, 1956, had failed. Mr. Roychowdhury submitted that the defendant appellant had successfully stalled the hearing of the suit after it was. instituted and despite the fact that no stay had been granted in the instant appeal, the learned trial court had proceeded cautiously since the appeal itself was pending disposal. 15. Mr Roychwdhury sought to distinguish the decision of this court in the case of Munshf Safar Ali Master's case (supra) relied upon by Mr. Banerjee by submitting that the ratio of the decision in the said case had been rendered in the facts of that ease and could not be applied as a universally accepted principle. In support oi his submission Mr. Roychowdhury referred to a Single Bench decision of this court in the case of Ram Hari Singh us. Tirtha Pada Misra. reported in 60 CWN page 39, wherein, after considering the decision in Munsif Salar Ali Master's case (supra) and that of the Bengal National Bank Ltd. vs. Raja Janoki Nath Roy. reported in 31 C.W N page 973 the learned Judge, inter alia. observed that if the decision in Munshi Salar Ali Master's case (supra) had purported to lay down any broad proposition of law to the effect that more eonlinuance in possession for a Jong time without anything more, would bt sufficient to prow the necessary consent of the land-lord under Section 116 of the Transfer of Property Act it would prohably have been insupportable. However, all that the said decision bad laid down was that (be consent of the land-lord, as required by Section 116 of the Transfer of Properly Act, may be express or implied and it may be furnished or inferred even without or in the absence of acceptance of rent, from other circumstances, which would either directly establish such consent or lead to a reasonable inference of it. 16. In the context of his aforesaid submissions and several other decisions on the point, the learned Judge was of the view that merely by continuing in possession of the leasehold property and nothing more, it could not be contended that the subsistence of the tenancy had been proved. 17. In this regard Mr. Royehowdhury also referred to the decision of the Hon'ble Supreme Court in R. V. Bhupal Prasad vs. State of M.P. & Ors.. reported in (1995) 5 SCC page 698, wherein~it was observed (hat a tenant by sufferance is one who cames into possession of the property by lawful title, but who holds it by wrong after the termination of the term or expiry of the lease by efflux of time. The tenant at sufferance is one who wrongfully continues in possession after the extinction of a lawful title. There is little difference between him and a trespasser. The Hon'ble Supreme Court also went on to observe that a tenancy at sufferance does not create a relationship of landlord and tenant. The Hon'ble Supreme Court referred to the following passage from Mulla's Transfer of Property Act (7th Edition) at page 769: The act of holding over after The expiration of the term does not necessarily create a tenancy of any kind. If the lessee remains in possession after determination of the term, the common law. rule is that ho is a tenant on sufferance. The expression hoding over is used in the sense of retaining possession. A distinction should be drawn the tenant continuing in possession after the determination of the lease, without the consent of the landlord and a tenant doing so. with the landlord's consent." 18. Mr. Roychowdhury submitted: that the decision in the case of Munslif Safar Ali Master (supra) had been watered down over the years and the law relating to holding over in terms of Section 116 of the Transfer of Property Act, 1862, had been explained in several cases, thereafter, drawing a distinction with the ratio sought to be decided in Munshf Safar Ali Master's case (supra). 19 On the question of grant of interim order of injunction, as prayed for on behalf of the defendant/appellant, Mr. Roychowdhury referred to the decision of the Hon'ble Supreme Court in the case of Dalpat Kumar us. Prahlad Singh, reported in AIR 1993 SC page 276. wherein The principle relating to grant of injunction had been elaborated and it had been observed that the existence of a prima facie case by itself is not sufficient to grant injunction. The court has to satisfy itself that non-interference by the Court would result in irreparable loss and injury. Furthermore, the balance of convenience and inconvenience must also be in favour of granting injunction. 20. Mr. Roychowdhury submitted that in the instant case it had been admitted by the defendant/appellant that The plaintiff/opposite party was in possession of the lawn and garden of the suit premises and that marriage ceremonies and social functions had been continued thereupon at least for 25 years prior to the dare of the Ming of the suit, to which no objection had ever been raised on behalf of the defendant/appellant. Mr. Roychowdhury submitted that the defendant/appellant had not "only acquiesced to the use of property by the plaintiff/opposite party in the said manner during the continuance of the tease, but even after Its expiry, and it was no longer upon to the said defendant/appellant to contend that the plaintiff/opposite party had been infringing on its rights regarding use of the said lawn and garden. 21. Mr. Roychowdhury categorically submitted that the egress and ingress of the defendant/appellant to and from the premises but that one of the two entrances to the premises were kept apart for the egress and ingress of the defendant/appellant and the occupants of the premises under it. 22. Mr. Roychowdhury submitted that in view of the long and continued user oi the property for marriage and other social ceremonies, it was not open to the defendant/appellant in raise an objection regarding the same particularly when the suit is really for hearing since 2000. 23. Mr. Roychowdhry submitted that the application for injunction filed on behalf of the appellant and the subsequent appeal filed in respect there of was nothing more than- attempts to stall the hearing of the suit which though filed late, had been filed well within the period of lmitation of 12 years prescribed under Article 67 of the Limitation Act. 1963 24. Having considered the submissions made on behalf of the respective parties and the facts as revealed, it would appear that the application for injunction was filed by the defendant/appellant motivatedly so that the hearing of the suit could be delayed. In view of the fact that there is no denial of the assertion made on behalf of the plaintiff/opposite party that it had been letting out the lawn and garden for marriages and other social functions for about 25 years prior to the filing of the suit. there is no explanation as to why the defendant/appellant did not file such an application for temporary injunction at an earlier stage of the suit. Although, the suit is on the peremptory board for about the last three years, not much progress could be made in the suit because of the pendency of the instant appeal. 25. We are also unable at this stage to accept the theory of holding over advanced by Mr. Ashoke Banejee, having regard to the decisions cited by Mr. Roychowdhury, both of this court, where the view expressed in Munshi Saffar Ali Master's rase (supra) had been sought to be distinguished, and also of the Hon'ble Supreme 'Court. It is for the defendant/appellant to establish such a theory in the suit. But it is not for us at this stage to go into such question which the defendant/appellant will have to establish on evidence in respect of the circumstances involving the continuance of the defendant/appellant in the suit premises long after the expiry of the lease granted in its favour. 26 We are not therefore, inclined to interfere with the order under appeal and the appeal is accordingly dismissed 27 We make it clear that any observation made in this judgment should not influence the final outcome of the site 28 There will he no order as to costs 29 If an urgent xerox certified copy ot this judgment is applied for, the same is to.be supplied to the applicant expeditiously, subject to compliance with all the lequned foremalites.