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Bengal Ambuja Housing Development Ltd. & Another v/s Pramila Sanfui & Others

    C.O. No. 709 of 2010
    Decided On, 19 December 2012
    At, High Court of Judicature at Calcutta
    By, THE HONOURABLE MR. JUSTICE PRASENJIT MANDAL
    For the Appearing Parties: Pratap Chatterjee, Avrajit Mitra, Anirban Ray, Prithwiraj Sinha, Sourav Ghosh, Samrat Sengupta, Anit Rakshit, Amal Kr. Mukhopadhyay, Ms. Anamika Das, Debasish Ray, Gopal Pahari, Ms. Piyali Kulavi, Ms. Nibedita Deb, Advocates.


Judgment Text
Prasenjit Mandal, J.

This application is at the instance of a third-party and is directed against the Order dated January 13, 2010 passed by the learned Civil Judge (Senior Division), 2nd Court, Alipore in Title Suit No.121 of 1962 thereby allowing an application under Section 151 of the CPC for direction that the order of injunction passed by the learned Court on June 16, 2006 be maintained by the parties to the suit and also to direct the O.C., Purba Jadavpur P.S. to assist Sri Ashoke Roy, learned Receiver appointed in the case in all possible manner so that he can perform his duties entrusted upon him for protection and preservation of the suit property.

The following facts are etymologized for the purpose of the disposal of this application:

(i) A suit for partition being Title Suit No.43 of 1956 was instituted among the co-owners, namely, Sanfui family, Naskar family, Mondal family & Sardar family in the year 1956 before the learned Civil Judge (Senior Division), Alipore and the said suit was renumbered subsequently as Title Suit No.121 of 1962.

(ii) In that suit, Gangadas Pal (since deceased) was not a party to the suit at the inception. Then, in 1957, Gangadas Pal was added as defendant No.54 in the said suit and he died in the year 1958. Gangadas Pal was the owner of land measuring 20.184 acres of land which is also the suit property.

(iii) In that suit, one Ranjit Kumar Ganguly (since deceased) was appointed Receiver in respect of the entire suit property and the said Receiver took possession of the entire suit properties on November 30, 1958.

(iv) In the meantime, several defendants died, the land of Gangadas Pal had been vested in the State and another application was made for addition of the heirs of Gangadas Pal, since deceased.

(v) The amendment of the plaint took place.

(vi) Steps were taken for setting aside abatement.

(vii) In 1991, the heirs of Gangadas Pal challenged the order of vesting of the lands of Gangadas Pal and the order of vesting was quashed by the learned Single Judge of this Hon’ble Court on April 16, 2003 and the said order was affirmed by a Division Bench of this Hon’ble Court. Special Leave Petition was filed before the Hon’ble Apex Court by the State Government, which was also dismissed.

(viii) In June 2006, an application for temporary injunction was moved to restrain all the persons from changing the nature and character of the suit property. Then a consent order of status quo was passed by the learned Trial Judge in respect of the suit property restraining the parties from selling, transferring, alienating or otherwise disposing of the suit property to any third-party in any manner whatsoever and also from changing the nature and character of the suit property.

(ix) On July 03, 2006, the learned Court directed the O.C., Purba Jadavpur P.S. to ensure compliance of the order dated June 16, 2006.

(x) On August 19, 2008, the West Bengal Housing Board purchased by way of two conveyances the half share of 20.184 acres of the land from Sohanlal Manpuria and Narendra Manpuria. The said Board also purchased the other half share of 20.184 acres of land directly from the heirs of late Gangadas Pal by three separate deeds and thus, the said Board claimed to be the 16 annas owner of the land previously belonged to Gangadas Pal.

(xi) In November 2009, the plaintiff No.2 complained to the O.C., Purba Jadavpur that the nature and character of the suit properties were being changed by the men and agents of Bengal Ambuja and the West Bengal Housing Board. Accordingly, by the impugned order, the learned Trial Judge directed the Superintendent of Police to see that the consent order of injunction was maintained by the parties.

(xii) Original Receiver, namely, Ranjit Kumar Ganguly died and then Sri Shankar Sen was appointed Receiver of the suit property. Shankar Sen was removed from the office of the Receiver by an Order dated December 3, 2009 passed by the learned Trial Judge and then Sri Ashoke Ray was appointed Receiver and he took physical possession of the suit property partly and symbolical possession partly on December 24, 2009.

Being aggrieved by the impugned order, this application has been preferred.

Now, the question is whether the impugned order should be sustained.

Upon hearing the learned Counsel for the parties and on going through the materials-on- record, I am of the view that the facts etymologized above are not in dispute. Therefore, the facts remain that a suit for partition filed in the year of 1956 is yet to be disposed of. The present matter is confined to the implementation of an order of injunction passed on consent. As recorded above, upon hearing both the parties, an order of status quo was passed directing the parties not to change the nature and character of the suit property. When the applicant tried to intervene in the said order of status quo, the steps for rendering police help to the learned Receiver was taken and I think since an order of status quo passed on consent was prevailing, the learned Court was justified for giving necessary directions upon the concerned police authority to take appropriate steps for the preservation and protection of the suit property and the Court was also competent to give directions to the police authority to render possible help so that the possession taken by the present Receiver, namely, Sri Ashoke Ray be maintained.

From the above facts, it is clear that the thirdparty/ petitioner herein had purchased the suit property lis pendens and that no permission was sought for from the Court to purchase the suit property.

So, the principle of lis pendens as provided in Section 52 of the Transfer of Property Act shall govern the issue.

Mr. Avrajit Mitra, learned Advocate appearing for the petitioners, has contended that since after the death of some of the original defendants, no steps for substitution have been taken and the present owners being Ela Basu, Sulekha Pal, D. Ghosh, Debbrata Sen, being the successors of the original deceased defendants having not been included, the suit has abated and application under Order 22 Rule 9 having been dismissed, the order of injunction being passed against the dead persons, cannot be implemented at all.

Mr. Mitra has also referred to the decisions of Smt. Jatan Kumar Golcha v. Golcha Properties (P) Ltd. reported in AIR 1971 SC 374, State of Punjab (now Haryana)& ors. v. Amar Singh & anr. reported in AIR 1974 SC 994 and United Commercial Bank v. Hanuman Synthetics Ltd. & ors. reported in AIR 1985 Cal 96 and thus, he has submitted that the impugned order being to be implemented against the dead persons is not valid in law and so, appropriate steps may be taken.

Mr. Mitra has also contended that though the applicants were third-party to prefer this application, when there is gross violation of the principle of justice, or flagrant errors of law, this Court can entertain an application of a third-party and in fact, while filing the application permission was sought for and so, this application is quite maintainable.

Mr. Mitra has referred to the decision of Narayandas Nathumal Hemrajani & ors. v. Taraben Kalimuddil Mulla Fakhri Society & ors. reported in AIR 1998 Gujarat 12, New India Assurance Co. Ltd. v. Union of India (UOI) & ors. reported in AIR 2010 Delhi 43 and Aidal Singh & ors. v. Karan Singh & ors. reported in AIR 1957 Allahabad 414 and thus, he has submitted that even without a proper application for leave, this Hon’ble Court may entertain the application when there is flagrant error of law.

Joining Mr. Mitra, Mr. Pratap Chatterjee, learned Senior Advocate appearing for the petitioners, has also referred to the decision of Rustomjee Dhunkibhai Sethna v. Frederick Gaebele & anr. reported in 23 CWN 496 and thus, he has submitted that it is competent for the Court to grant leave to continue a suit instituted by or against a Receiver of the Court without such leave provided a proper case is made out.

Mr. Chatterjee has also referred to the decision of Everest Coal Company (P) Ltd. v. State of Bihar & ors. reported in (1978)1 Supreme Court Cases 12 and thus, he has submitted that the leave of Court must be obtained before filing suit or during pendency of suit otherwise the action would amount to contempt of Court and would be invalid. The Court should ordinarily grant leave sought for.

Per contra, Mr. Amal Kr. Mukhopadhyay, learned Advocate appearing for the opposite party No.s 19(b) & 53(c), referred to the decision of Sanjay Verma v. Manik Roy & ors. reported in AIR 2007 Supreme Court 1332 and thus, he has submitted that the transfer made by the transferees from defendant without leave of Court – Cannot claim impleadment in view of doctrine of lis pendens – Order impleading them on ground that there was nobody to represent and safeguard their interest – liable to be set aside.

He has also contended that the doctrine of lis pendens – is based on equity, good conscience and justice.

Mr. Anit Rakshit, learned Advocate appearing for the opposite party No.1, has contended that since the order of injunction being a consent order and it has not been challenged by way of appeal, in case of violation of the said order, appropriate steps including the direction upon the police for implementation of the order may be taken. So, there is no illegality in the impugned order and as such, the impugned order should be maintained.

Mr. Debasish Ray, learned Advocate appearing for the Receiver, has submitted that since a Receiver is an Officer of the Court and he is in charge of the suit property, leave is necessary to lodge any suit or any proceeding against a Receiver. In any case, no leave to sue from the concerned Trial Judge having been obtained by the petitioners, they have no right to move this Hon’ble Court for the reliefs sought for in the application. Accordingly, the application is liable to be dismissed.

He has also contended that the consent order being not invalid in any manner should be maintained.

In reply Mr. Avrajit Mitra, learned Advocate appearing for the petitioners, has contended that since the present application by a third party has been admitted and interim order of stay has been granted as per Order dated April 20, 2010 of this Hon’ble Court and extended subsequently from time to time, it is presumed that leave impliedly has been granted.

In support of his contention, Mr. Mitra has referred to the decision of Pramila Sanfui & ors. v. Metro Cash & Carry India Pvt. Ltd. & ors. reported in (2009)4 CAL LT 498 (H.C.)and thus, he has submitted that where an illegal and unjust order will get revived and be operative, impugned order not to set aside for any technical consideration. Where the fact remains, lessee sought for leave but formal leave not expressly recorded, it is be presumed leave granted. Possession taken by State after acquiring land in question, State becomes the owner.

Having considered the respective submissions of the learned Advocates of both the sides and the facts as recorded earlier, I am of the view that Mr. Ashoke Kumar Ray has been appointed Receiver in respect of the suit property and he is in possession in respect of some of the suit properties and he has also symbolical possession in respect of the rest properties. Anyway, the possession lies with the learned Receiver. He is an Officer of the Court and as such, when a third-party intends to take any legal step against the Receiver, leave of the learned Trial Judge to proceed against the Receiver is a must without which no application filed by the third-party against a Receiver is maintainable. Above all, at the time of the institution of this application, no leave was obtained from this Hon’ble Court to institute an application under Article 227 against the parties to the suit and the learned Receiver.

In the instant case, Mr. Mukherjee has rightly pointed out that since no permission was obtained at the initial stage subsequently the petitioners filed an amended application seeking permission from the Court. Though, at the time of filing of the said application, interim measures were taken and the interim order was passed staying the impugned order from time to time by subsequent orders, it does not indicate that permission has been impliedly granted. So far as the decision of Pramila Sapui (supra) is concerned, the application was entertained when an illegal and unjust order was passed.

In the instant case, so far as the merit of the application is concerned, I find that the order of injunction in the nature of status quo as recorded earlier was passed on consent and subsequently, the plaintiff No.2 took steps for implementation of that order when the petitioners wanted to place signboard and other steps to show that they were in possession. So, the impugned order is not illegal and without jurisdiction. The learned Trial Judge is to see that the consent order of status quo be maintained and that the learned Receiver is able to discharge his duties as entrusted upon him by the Court. So, the learned Trial Judge is justified to pass the impugned order. Record does not show that the petitioners had obtained any permission from the Court to purchase a portion of the suit property. They had purchased a portion of the suit propert

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y at their own risk while the said suit was pending and the property was in the possession of the learned Receiver. Under the circumstances, the decision of Pramila Sapui & ors.(supra), in my view, will not govern the situation, but, the decision of Sanjay Barma (supra) would prevail and the petitioners will be bound by the doctrine of lis pendens as provided under Section 52 of the Transfer of Property Act. According to the decision of Shalini Shyam Shetty & anr. v. Rajendra Shankar Patil reported in 2010(4)ICC 271 – under Article 227, orders of the Court and Tribunal can be examined only in very exceptional cases when manifest miscarriage of justice has been occasioned. Such power is not to be exercised to correct a mistake of fact or of law. In that view of the matter, I am of the opinion that in exercising the jurisdiction under Article 227 of the Constitution, the application cannot be entertained. The impugned order should, therefore, be sustained. The application is not maintainable in law. The application is, therefore, bound to fail for the reasons recorded above. The application is, therefore, dismissed. Interim order of stay as granted earlier ancd extended subsequently from time to time is hereby vacated. Considering the circumstances, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.
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