10 September 2004
Supreme Court
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METRO MARINS Vs BONUS WATCH CO. PVT. LTD. .

Case number: C.A. No.-005901-005901 / 2004
Diary number: 26572 / 2003
Advocates: V. K. MONGA Vs BIJOY KUMAR JAIN


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CASE NO.: Appeal (civil)  5901 of 2004

PETITIONER: Metro Marins & Anr.

RESPONDENT: Bonus Watch Co. Pvt. Ltd. & Ors.

DATE OF JUDGMENT: 10/09/2004

BENCH: N. Santosh Hegde, S.B. Sinha & A.K. Mathur

JUDGMENT: J U D G M E N T (Arising out of S.L.P. (C) No. 1610 of 2004)

SANTOSH HEGDE, J.

       Heard  learned counsels for the parties.  

       Leave granted.

       Appellant       herein questions the correctness of  an order  made by the  Appellate Bench of the High Court at Calcutta which by the impugned order  set aside  the order made by a learned Single Judge on the original  civil  jurisdiction  of that court in G.A. No.  682 of 1999 in C.S. No. 99 of 1999.    Brief facts  necessary for the disposal of this appeal are as follows :-

The respondent herein filed a suit for possession alleging the appellant  herein  to be a licensee  and the period of license  having expired he was  entitled  to a decree for khas possession  of the suit schedule property as also  for certain other ancillary  reliefs.  In the said suit he filed  an interlocutory  application, firstly praying  for a judgment on admission  and in the  alternative for an injunction directing the appellant herein  to immediately   hand over vacant and peaceful possession of the suit schedule property  premises to the respondent-plaintiff.  The learned Single Judge who heard  the said application came to the conclusion  that he did not find any reason  to pass a decree on admission or to grant interim mandatory injunction   directing the appellant-defendant to hand over possession of the flat in view   of the fact that the  suit was still pending  in the court and granting of such  relief would  tantamount  to a decree  before trial  for which the respondent  has not made out a case.  It is against the said dismissal  of the plaintiff’s application, an appeal  was filed confining the appeal only to the reliefs by way of  injunction  seeking  interim possession of the suit schedule property during the  pendency of the suit.  The Appellate Bench after noticing  the arguments of  the parties and the documents  produced  came to the conclusion  that prima- facie  the relationship  between the parties was that of licensee  and licensor.  It also came to the conclusion  at one point of time  in 1998 the appellants   were willing to voluntarily  surrender  the possession but did not do so  because the respondent did not agree  to repay  the security amount.  It also  came to the conclusion that for about 4 years the property in question  has  been under a Caretaker and the said property was not used for any  commercial purpose.  In the said background, the appellate court came to the  conclusion that it is not proper  that the property  (Flat) should be kept in a  disused condition. The appellate bench also considered the litigation to be a  luxury litigation and on this philosophical   background  it directed the

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receiver  who was earlier appointed as an interim receiver  to take inventory   of the movable  in the property  to take symbolic possession of the suit  property and put the respondent-plaintiff in possession of the property under  the authority of that receiver subject to final adjudication in the original suit.  

It is the above mandatory interim order of directing the interim  possession  being handed over to the plaintiffs  in a suit  for possession, the  appellants  are before us.  

Shri Jaydeep Gupta, learned senior counsel appearing for the  appellants submitted that it is an admitted fact that the appellants were in  possession of the suit property and the suit itself was for eviction and for  possession.  He contended that there was a triable issue as to the nature of  possession hence a decision to hand over possession or not could have been  taken only after deciding this issue and on the basis of law applicable to such  relationship. Learned counsel pointed out that Trial Court has for good  reasons rejected the interim application of the plaintiff holding that allowing  such application would amount to  grant of a decree   even before trial   which normally is not permissible in law.  He submitted there is no  extraordinary circumstances  on facts of the present case which could have  permitted the Appellate Court to exercise its extraordinary jurisdiction  of  granting the interim possession in favour of the plaintiff in a suit for  possession. He placed reliance on a judgment of this Court in the case of     Dorab Cawasji Warden  vs. Coomi  Sorab Warden  1990 (2) SCC 117    wherein this Court held :-         "The Relief of interlocutory mandatory injunctions  are granted generally to preserve or restore the status- quo  of the last  non-contested status which preceded  the pending controversy until the final  hearing when  full relief  may be granted or to compel the undoing  of those acts that have been illegally done or the  restoration of that which was wrongfully taken from  the party complaining. But since the granting  of such  an injunction  to a party who fails or would fail to  establish his right at the trial may cause great   injustice or irreparable  harm to the party against  whom it was granted or alternatively not  granting of  it to a party who succeeds  or would succeed  may  equally cause great injustice or irreparable  harm".

The learned counsel for the appellant submitted that in the present  case, it is an admitted fact that the appellant is in possession of the property  and the suit itself is for eviction  and possession and there is a contested  issue in regard to the nature of relationship between the parties. In such a  situation issuance of mandatory  injunction directing the handing over the   possession in favour  of the plaintiff would be unsustainable  in law and is  contrary  to the law laid down by this Court in the case of Dorab Cawasji  Warden  vs. Coomi  Sorab Warden (supra).  Learned counsel also pointed  out that the fact that the property  in question is not used for commercial  purposes or  is in the possession of a Caretaker are irrelevant facts  for the  purpose of deciding whether an interim mandatory injunction  to hand over  possession should be granted or not.  

Shri Raju Ramachandran, learned senior counsel appearing for the  respondent  submitted that this appeal is liable  to be  dismissed at the  preliminary stage itself since from the document produced  by the appellant  himself, it is clear that in 1998 he was ready  and willing  to hand over   possession of the property and he has backed  out  from the same, hence in  equity the appellant  is not entitled for any relief and Article 136 which  being a discretionary  jurisdiction of this Court. On merits the learned  counsel submitted that as found by the Appellate Court it is ex-facie  clear   that the relationship  between the parties is of that licensor or licensee and  period of the license  having come to an end the appellant continued to be in  possession as trespasser. Therefore, the High Court was justified in granting  the mandatory injunction  to hand over possession of the property. He

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submitted  that the appellant has not paid any rent  for the last so many years  which is also a good ground for rejection of this appeal  i.e. assuming  he is a  tenant, he could not continue to be in possession of the property without  paying any rent.   

Having considered the arguments of the learned counsel  for the  parties and having perused the documents produced, we are satisfied that the  impugned order of the Appellate Court cannot be sustained either on facts or  in law.  As noticed by this Court in the case of Dorab Cawasji Warden  vs.  Coomi  Sorab Warden (supra) has held that an interim mandatory injunction  can be granted only in exceptional cases coming within the exceptions  noticed in the said judgment.  In our opinion, the case of the respondent  herein does not come under anyone of those exceptions  and even on facts it  is not such a case which calls for the issuance  of an interim mandatory  injunction  directing the possession being handed over to the respondent.  As  observed by the learned Single Judge the issue whether the plaintiff is  entitled for possession is yet to be decided in the Trial Court and granting of  any interim order directing  handing over  of a possession would only mean  decreeing the suit even before trial.  Once the possession of the appellant  either directly  or through his agent (caretaker) is admitted  then the fact that  the appellant is not using the said property for commercial purpose or  not  using the same  for any beneficial purpose or the appellant has to pay huge  amount by way of damages  in the event of he loosing  the case or the fact  that the litigation between the parties  is a luxury  litigation  are all facts  which  are irrelevant  for changing the status-quo  in regard to possession  during the pendency of the suit.  

For the foregoing reasons, we are of the considered opinion the  Appellate Court erred in reversing the order of the learned Single Judge and  granting a mandatory  order of injunction.  In view of  our above findings,  we think it appropriate that even the appointment of a receiver be it an  interim order or otherwise to supervise the possession of the property in  question is also unnecessary, hence said appointment of receiver is also set  aside.  For the reasons stated above this appeal succeeds and the same is  allowed. The order in appeal is set aside and that of the trial court restored.