Sri Sri Radha Krishnaji Thakur Vs Sankar Lal Khettry

Mookherjee, J.@mdashThe present appellant have instituted in the City Civil Court at Calcutta a suit for eviction of the defendant respondent who is alleged to be a monthly tenant governed by the provisions of the West Bengal Premises Tenancy Act, 1956. The defendant tenant is contesting the said suit. The learned Judge, 4th Bench, City Civil Court at Calcutta, has dismissed the plaintiff appellants'' application for temporary injunction to restrain the defendant tenant from making any construction or alteration of the suit premises and also for mandatory temporary injunction commanding the defendant to remove the building materials and other wooden stocks kept for the purpose of the said construction etc. The learned Judge of the court below has, interlaid, held that even if the ''defendant is making the alleged constructions in the verandah of his flat, the plaintiffs are not entitled to obtain an order of temporary injunction. According to the learned Judge of the court below, the instant suit was for eviction on the alleged grounds contemplated under the West Bengal Premises Tenancy Act and the said Act does not contain any provision for granting injunction as prayed for. Secondly, the plaint of the suit does not contain any prayer for permanent injunction or mandatory injunction. The court below has also held that the balance of convenience was in favour of the defendant and the plaintiffs would not suffer any irrep arable injury if their prayer for injunction was not granted. In our view, the learned Judge of the court below has erred in rejecting the plaintiffs'' application for temporary injunction for reasons which are totally unsustainable in law. It is totally irrelevant to contend that no provision for granting temporary injunction is contained in the West Bengal Premises Tenancy Act which applies to "the tenancy allegedly held by the defendant respondent. Sub-section (1) of section 13 of the said Act sets out the grounds on which the landlord may recover possession of a premises governed by the West Bengal Premises Tenancy Act and the tenant would forfeit the protection from his eviction. The provisions of the CPC would apply to such a suit instituted in civil court for recovery of possession of a premises on any one or more of the grounds set out in section 13(1) of the West Bengal Premises Tenancy Act. Therefore, the court before which a suit governed by section 13(1) of the said Act is pending has jurisdiction in appropriate cases to grant temporary injunctions according to well-settled principles governing temporary injunction. It is also now settled law that the provisions of order 39 of the Code are not exhaustive and in extraordinary cases in the exercise of its inherent powers also the court could issue temporary injunctions. There is nothing in the West Bengal Premises Tenancy Act which expressly or by implication deprives the court''s powers to grant temporary injunctions according to the well-settled principles of law (see the case of Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal, ). Therefore, when the court is satisfied that a party to an eviction suit is wrongfully attempting to render in fructuous the relief in the suit which may be ultimately rendered in favour of the other party, the court may grant an order of temporary injunction. Again if pending the decision in an eviction suit, a party attempts to commit act of waste or damage in respect of the suit property, the court in appropriate cases may grant temporary injunction to preserve the property in suit. It may be also borne in mind that a person continuing in possession even after termination of his tenancy would remain a tenant until any decree or order for eviction has been made by a court of competent jurisdiction. Therefore, even in a suit pending for eviction the mutual obligations of the landlord and the tenant subsist and, therefore, the court trying the suit may grant temporary injunction to prevent either party from committing breach of their respective obligations. Under clause (h) of section 108 of the Transfer of Property Act after determination of the lease the tenant is bound to leave the properly in the state in which he had received it. Reference also may be made to clauses (m), (o) and (p) of section 108 of the Transfer of Property Act. The tenant cannot commit any act of voluntary waste and is bound to restore the property in as good a condition as it was at the time when he was put in possession. Without the landlord''s consent a tenant cannot erect any permanent structure. Therefore, the court below was wrong in holding that no order for temporary injunction can be granted in a suit governed by section 13(1) of the West Bengal Premises Tenancy Act.

2. The court below was also wrong in holding that the balance of convenience was not in favour of the plaintiff landlords or that the plaintiff landlords would not suffer any irreparable loss and injury if their prayer for temporary injunction was refused. One of the objects of granting interlocutory orders is to preserve the rights of the parties in respect of the property in suit so that the ultimate relief which may be granted in the suit is not frustrated or defeaed. Even if no prayer for permanent injunction'' has been made in the plaint, the court is not precluded in appropriate cases from granting an order of temporary injunction to prevent irreparable injury being done to either of the parties and to enforce their respective obligations in relation to the suit property pending the final disposal of the suit.

3. For the foregoing reasons, we propose to make an order of temporary injunction in favour of the plaintiff-appellants. At this stage, we record the submission of the learned advocate for the respondent that his client denies that he has made any alteration to the suit premises or that he proposes to make any construction or alteration in the suit premises. In the above view we allow this appeal, set aside the order complained of and direct that pending the hearing of the suit the defendant shall remain restrained from making any construction and or alteration to the suit premises. We, however, make it clear that we have not made any observation on the merits of the cases of the respective parties in the pending suit for ejectment The said suit be expeditiously disposed of in accordance with law.

Let the order be communicated to the court below. No decree need be drawn up.

Mukul Gopal Mukherji, J.

I agree.