SAROJ KUMAR SHUKLA Vs. NIRMAL CHANDRA BOSE @ NIBU

JUDGEMENT

(1.) PLAINTIFFS -respondents 1 and 2 filed Title Suit No. 40 of 1994 for declaration of title and permanent injunction restraining defendants 1 to 3 from receiving payment of rent from the tenants and making any construction over suit land and also for restraining defendant No. 8 from paying rent to defendants 1 to 3. Further, reliefs were sought for setting aside the decree dated 18.12.1993, passed in Eviction Suit No. 4 of 1992 and for declaring the sale deed dated 28.12.1973 and lease deed dated 19.4.1985 to be void.

(2.) DURING pendency of the suit, plain -tiffs filed a petition under Order XXXIX, Rules 1 and 2 of Code of Civil Procedure for restraining defendants 1 to 3 and 8 from getting the decree dated 18.12.1993 passed in Eviction Suit No. 4 of 1992, executed and from receiving rent and making any construction.3. By impugned order dated 10.5.1994, trial Court restrained defendant No. 8 from making payment of arrears of rent as well as current monthly rent to defendants 1 to 3. Defendants 1 to 3 were also restrained from receiving rent in respect of suit premises and making any construction over the suit land till disposal of the suit. Plaintiffs were directed to take all steps on their part so that the suit may be heard and disposed of within six months. 4. Defendants 1 to 3 preferred the present appeal under Order IV. Rule 1(R) of Civil Procedure Code, which was admitted on 20.7.1995. In my opinion, there was no occasion for calling for lower Court records in this appeal and in this regard specific order was passed on 11.8.1995 and appellants were directed to file certain papers for the purpose of hearing of the appeal, which were also tiled on 18.8.1995. In spite of that, office did not take care to inform the trial Court not to send the records, pursuant to the communication dated 4.8.1995 and the records were received in August. 1995 and are lying in this Court. Firstly. Registry was not required to call for the records, unless there was such direction of the Bench in this appeal and secondly, even If this mistake was committed, it must have been rectified after the Bench passed specific order for not calling for lower Court records. Registry is directed to be cautious in this regard in future. 5. Defendant No. 1, Saroj Kumar Shukla, who was one of the plaintiffs in aforesaid Eviction Suit No. 4 of 1992 and decree - holder in Execution Case No. 4 of 1994, filed for execution of the eviction decree dated 18.2.1993 passed in the said suit, filed Civil Revision No. 321 of 1994(R) in this Court challenging order dated 30th May, 1994, whereby, at the instance of Nirmal Chandra Bose, plaintiff In Title Suit No. 40 of 1994, further proceedings in Execution Case No. 4 of 1994 was stayed till disposal of Title Suit No. 40 of 1994. The said Revision Application was disposed of by this Court on 8.2.1996. Itwas allowed and the order dated 30.5.1994 staying the execution proceeding was set aside. 6. In the aforesaid circumstance, I find that after disposal of Civil Revision No. 321 of 1994(R) by this Court, there was no occasion for restraining the appellants herein from realising arrears of rent pursuant to the eviction decree in question, and after the said decree there was no occasion of the premises in question. 7. It is stated at Bar that Execution Case No. 4 of 1994 by n6w has already been disposed of on full satisfaction. Whatever the case may be. I am not concerned with the said matter in the present revision application, but after disposal of C.R. No. 321 of 1994 (R), part of the impugned interim order of injunction, namely, restrained on defendants 1 to 3 from realising arrears of rent as well as current rent from defendant No. 8 have become infructuous. Now so far as other part of impugned interim injunction, namely, restrain on defendants 1 to 3 for making any construction over the suit land is concerned, after a lapse of about 8 years of such interim order. 1 am not inclined to interfere with this part. Now so far as restrain upon defendants 1 to 3 for realising rent from the tenants in the suit house is concerned, in my opinion, simultaneously the Court below should have also made some arrangement for realisation of the rent from those tenant, so that the party, ultimately succeeding in the suit would have got it, but no such arrangement was made. 8. In such circumstance, I set aside this part of impugned order and permit the petitioners -defendants 1 to 3 in the suit to submit the details of the tenants and amount of monthly rent payable by them in the trial court on the next date fixed in the suit and also to collect rent from them from June, 2001 onward. It goes without saying that in case of the suit is decreed they will be liable for payment of amount of rent collected from the tenants to the successful party.

(3.) The suit is of the year 1994. Parties agree to cooperate in its smooth disposal. If defendants do not cooperate the court may proceed to decide the suit ex parte. It must be disposed of within six months from the date of receipt of a copy of this order. Records may be sent down forthwith.