DEBASISH MAJUMDAR Vs. SAHA BROTHERS WEST TRIPURA AGARTALA

JUDGEMENT

(1.) This is a revision under Section 115 of the Code of Civil Procedure, 1908, against the judgment and order dated 23-9-1992 of the learned Additional District Judge, West Tripura Agartala, in Misc. Appeal No. 24 of 1991.

(2.) The brief facts are that the respondent No. 1, M/s. Saha Brothers, was a partnership firm and the respondent No. 2, Nani Gopal Saha, was one of its partners. Title Suit No. 324/81 was filed by respondent No. 1 for perpetual injunction in respect of the suit land measuring 150' x 170' in Bardwali town adjacent to Bishalgarh Road. The respondent No. 2, Nani Gopal Saha, joined in the said suit as plaintiff No. 2 subsequently by way of amendment of the plaint. The case of respondent No. 1 in the said suit was that it was carrying the agency business of M/s. B.O. C. Ltd. in petrol, kerosene oil, diesel, lubricants, etc. The said business was being carried on the suit land of which Braja Ballav Poddar, the father of respondents 3 to 6, was the owner. On 1-6-1958, Braja Ballav Poddar, leased out the suit land in favour of the 4th partner of M/s. Saha Brothers for the period of 21 years at the monthly rent of Rs. 171/- and under the said lease, the tenants were entitled to continue the tenancy for a further period of 21 years and the landlord was to execute a fresh deed accordingly. Before the expiry of the period of 21 years, respondents 1 and 2 informed Braja Ballav Poddar on 26-5-1978 that they would continue the tenancy and requested him to execute a lease deed accordingly. Braja Ballalv Poddar however did not accede to the said request and instead on 23-4-1989, his sons i.e. respondents 3 to 6 gave a notice to the respondents 1 and 2 to vacate the suit land. Thereafter, respondents 3 to 6 started disturbing the peaceful possession of respondents 1 and 2 over the said suit land in which the latter had constructed pucca building for office room, lubricants dispensing room, store room, machine room, one pucca building for staff quarters with attached latrine and bath room, godown, etc. for carrying on their business. Along with the said suit for perpetual injunction, respondent No. 1 filed a petition for temporary injunction which was registered as Misc. Case No. 403/81, and the learned trial Court initially passed an ad-interim injunction order dated 6-11-1981 restraining Braja Ballav Poddar and respondents 3 to 6 from entering into the suit land or disturbing the respondent No. 1 in peaceful enjoyment of the suit land. After two years, the learned trial Court made the said ad interim order of injunction absolute by its order dated4-3-1983. Against the said order dated 4-3-1983, respondents 3 to 6 filed an appeal in the Court of the learned District Judge, but the same was dismissed and the order of temporary injunction was upheld. During the aforesaid period when the temporary injunction order was in force, the respondent No. 1 filed Misc. Case No. 79/87 under Order 39, Rule 2-A of the Code of Civil Procedure, 1908, complaining that the respondents 3 to 6 dispossessed the respondent No. 1 of the portion of the suit property and had violated the order of temporary injunction. While the said Misc. Case No. 79/87 was pending, the respondents Nos. 1 and 2 filed another Misc. Case No. 6/91 alleging therein that the respondents 3 to 6 had entered into an agreement on 17-12-1990 with the petitioner No. 1 , Debasish Majumdar for leasing out the said portion of the suit property from which the respondent 1 was dispossessed and the petitioner No. 1 had started business of selling petroleum products in the said portion of the suit property with effect from 12-4-1991 as an authorised agent of the petitioner No. 2 , Indian Oil Corporation Limited (Assam Oil Division). In the said Misc. Case No. 6/91, respondents 1 and 2 contended that the aforesaid activities of the respondents 3 to 6 and the petitioners 1 and 2 amounted to violation of the order of temporary injunction dated 6-11-1981 which was made absolute on 4-3-1983 and prayed for a temporary injunction restraining the respondents 3 to 6 and the petitioners 1 and 2 from entering into the remaining portion of the suit land, and for a mandatory injunction to direct the respondents 3 to 6 and the petitioners 1 and 2 to withdraw from the aforesaid portion of the suit land in which they had entered in violation of the orders of temporary injunction. After hearing the parties the learned trial Court dismissed the said Misc. Case No. 6/91 by its order dated 16-9-1991. Aggrieved, the respondents 1 and 2 filed the aforesaid Misc. Appeal No. 24/91 and the learned Additional District Judge, West Tripura, Agartala, after hearing the parties in the said Misc. Appeal held, inter alia, that the respondents 3 to 6 could not violate the order of temporary injunction and enter into the portion of the suit land by giving fresh lease to the petitioner No. 1 and the entire activities of the respondents 3 to 6 and the petitioner Nos. 1 and 2 were illegal and in violation of the order fo temporary injunction, and it was the duty of the Court to set at right the wrong done by evicting the wrong doers from the suit property in which respondents 3 to 6 and the petitioners 1 and 2 had entered in violation of the order of temporary injunction. Learned Additional District Judge, therefore, issued a mandatory injunction on respondents 3 to 6 and the petitioners 1 and 2 to restore the possession of the aforesaid part of the suit land to respondents 1 and 2, and allowed the appeal. The petitioners 1 and 2 have challenged the said judgment and order dated 23-9-1992 of the learned Additional District Judge, West Tripura, Agartala, allowing the appeal and granting temporary mandatory injunction in favour of respondents 1 and 2 in this revision petition.

(3.) At the hearing of this revision petition, Mr. B.B. Deb, learned counsel appearing for the petitioner No. 1, vehemently argued that in reply to the interrogatories in Title Suit No. 324/81, the respondent No. 1 had admitted that the partnership firm, M/s. Saha Brothers was dissolved in the year 1975 and yet the said Title Suit was filed in the year 1981 by the so called M/s. Saha Brothers which did not have any existence. Subsequently, in the year 1991, the plaint was amended and Nani Gopal Saha claiming to be a partner of the erstwhile M/s. Saha Brothers was added as plaintiff No. 2 in the said suit and the other partners of the erstwhile firm M/s. Saha Brothers were impleaded as pro forma defendants. These admitted facts, according to Mr. B.B. Deb, would show that the suit was filed on behalf of a non-existent firm in the year 1981 and even thereafter only one partner, namely, Nani Gopal Saha had joined in the suit as plaintiff No. 2 in the year 1991 and the other partners had not joined the suit as plaintiffs. Such a suit was, therefore, not maintainable under the law and the learned Additional District Judge ought not to have issued the order of temporary mandatory injunction in the peculiar facts of the case. Mr. Deb further contended that the only ground on which the learned Additional District Judge has issued the order of temporary mandatory injunction in favour of respondents 1 and 2 is that the earlier orders of ad interim and temporary injunction dated6-11-1981 and 4-3-1983 had been violated by the respondents 3 to 6 and the petitioners; but the finding of the learned Additional District Judge that the said orders of temporary injunction dated 6-11-1981 and 4-3-1983 had been violated was premature because Misc. Case No. 79/87 in which complaint of violation of the aforesaid orders of the temporary injunction had been made was still pending before the learned trial Court and no finding as such had been recorded in the said Misc. Case as yet that the said orders of temporary injunction dated 6-11-1981 and 4-3-1983 had been violated.