JUDGMENT
Jayanta Kumar Biswas, J.
1. Plaintiff in Title Suit No. 15 of 2003 pending before the 5th Bench of the City Civil Court at Calcutta is the appellant in this first miscellaneous appeal. He is aggrieved by Order No. 13 dated 13th June, 2003 passed in the suit. By the impugned order his application under Order 39 Rules 1 and 2 read with Sections 94 and 151 of the Code of Civil Procedure, which was contested by the respondent No. 1 (the defendant No. 1 in the suit), was dismissed by the learned Judge.
2. With effect from 1st August, 1973 the respondent No. 1 (a registered partnership firm) let out to the respondent No. 2 (a private limited company) a one room suite with one bathroom and kitchen (hereinafter referred to as “the suit property”). It is located at the North-East back portion of the ground floor of premises No. 2, Auckland Place, Calcutta- 700 017. The tenure of the tenancy was 21 (twenty-one) years, that is, the date of expiry of the lease creating the tenancy was fixed for 31st August, 1994.
3. In 1994 the respondent No. 2 filed Title Suit No. 3310 of 1994 in the City Civil Court at Calcutta. By this it prayed for a declaration that it was a monthly tenant under the respondent No. 1 in respect of the suit property, and the lease dated 24th September, 1994 was liable to be cancelled. In this suit the respondent No. 1 was impleaded as the sole defendant.
4. On 16th December, 1994 the respondent No. 1 filed Title Suit No. 3767 of 1994 in the City Civil Court at Calcutta. It was for eviction of the respondent No. 2 from the suit property. The respondent No. 2 was the sole defendant in this suit. It was alleged that the respondent No. 2 failed to quit and vacate the suit property and deliver vacant possession thereof to the respondent No. 1, even after determination of the lease on expiry of its tenure of 21 (twenty-one) years. Allegation was also made that the respondent No. 2 in violation of the terms of lease illegally used the suit property for residential purpose, by allowing one Sri Motilal Sarkar to reside therein with his wife (Smt. Sikha Sarkar) and their two sons (Partha and Protim).
5. In Title Suit No. 3767 of 1994 filed by the respondent No. 1 a compromise application dated 13th September, 2002 was filed. The respondent No. 2 agreed to the passing of a decree for recovery of possession of the suit property by the respondent No. 1. It further agreed that the compromise application would also govern the Title Suit No. 3310 of 1994, earlier filed by it against the respondent No. 1.
6. On the basis of the compromise application the Title Suit No. 3767 of
1994, filed by the respondent No. 1 for eviction of the respondent No. 2 from the suit property, was decreed by the City Civil Court at Calcutta by order dated
19th September, 2002, A decree for recovery of possession in terms of the
compromise was passed in favour of the respondent No. 1.
7. In the circumstances on 3rd January, 2003 the appellant filed the Title Suit No. 15 of 2003 in the City Civil Court at Calcutta. The respondent Nos. 1
and 2 were impleaded in it as defendant Nos. 1 and 2. The present appeal arises out of this suit. In it the appellant prayed for the following reliefs :–
“(A) For a declaration that the plaintiff is in possession of the suit premises, more fully and particularly described in the schedule, as a lawful tenant under the defendant No. 2.
(B) For a declaration that the decree passed in Title Suit No. 3767 of 1994 on 19.09.2002 by the learned Judge, Bench-V, City Civil Court, Kolkata is without jurisdiction and fraudulent and collusive and not binding upon and enforceable against the plaintiff.
(C) For a temporary injunction in terms of prayer (b);
(D) For costs of the suit;
(E) For such further and other relief or reliefs as the learned Court deems fit and proper.”
8. In the pending suit the appellant filed an application under Order 39 Rules 1 and 2 read with Sections 94 and 151 of the Code of Civil Procedure. By this he prayed for the following order :–
“Hence it is most humbly prayed that your Honour would be pleased to issue upon the defendant No. 1 to show cause why it shall not be restrained to an appropriate order of injunction from disturbing the plaintiffs possession in respect of the suit premises by executing the decree in terms of compromise petition passed in Title Suit No. 3767 of 1994 by the learned Judge 5th Bench, City Civil Court, Kolkata on 19.9.2002 or in any way whatsoever, described in the Schedule hereunder written and in the meantime to issue ad interim order of injunction in terms of above and pass such further order or orders as the learned Court deems fit and proper.”
9. In his plaint as well as application for injunction the appellant claimed and contended :–(a) His employer the respondent No. 2 had put him into the possession of the suit property as its tenant, (b) The eviction suit filed by the respondent No. 1 against the respondent No. 2 had been diligently contested by the respondent No. 2 till the year 1996 when Mohesh Prosad Agarwal, a director of the respondent No. 2 and who had put the appellant into possession of the suit property, died. (c) After death of Mohesh Prosad Agarwal the relationship between the respondent No. 2 (his employer) and him became bitter, and the respondent No. 2 repeatedly requested him to leave the suit property so that it could deliver the vacant possession thereof to the respondent No. 1 (d) When the relationship became bitter, the respondent No. 2 made it clear that it was not interested to proceed with the pending suits or to continue with the tenancy, but the appellant expressed his inability to accede to the request of the respondent No. 2 to leave the suit property. (e) In the circumstances the eviction suit filed by the respondent No. 1 was decreed on compromise, and the suit filed by the respondent No. 2 against the respondent No. 1 stood dismissed for non-prosecution, (f) The compromise decree was a collusive one obtained by practising fraud upon the Court so as to facilitate the appellant’s eviction from the suit property, in respect whereof he is a lawful tenant under the respondent No. 2 (his employer), (g) On the basis of the compromise decree the respondent
No. 1 was constantly threatening the appellant to dispossess him of the suit property by executing the decree. By making such claims and raising such contentions he prayed for the decrees and the temporary injunction, in the terms, as quoted before.
10. The injunction application was contested by the respondent No. 1 by filing a written objection. Its main contention was that as an employee of the respondent No. 2, the appellant, even if he had come to possess the suit property as such, had acquired no independent right or claim in respect of the tenancy, as he was never put into possession thereof as a lawful tenant. Respondent No.1 further contended that assuming the appellant was in possession of the suit property, he was bound by the eviction decree passed against his employer because of his own case that he was put into possession of the suit property by the respondent No. 2 as its employee. The allegation of obtaining the compromise decree by practising fraud on the Court or in collusion with the respondent No.2 was denied by the respondent No. 1.
11. By the impugned order the learned Judge of the 5th Bench of City Civil Court at Calcutta was pleased to dismiss the injunction application on the following grounds :–(a) the appellant failed to show any document in support of his claim that he is a tenant in respect of the suit property ; (b) being an employee of the respondent No. 2, and having come into possession of the suit property only as an employee of the respondent No. 2, by the compromise decree for recovery of possession thereof, as passed against the respondent No. 2 in Title Suit No. 3367 of 1994, the appellant also was bound; (c) as the respondent No. 1 is admittedly the true owner of the suit property, and the appellant failed to produce any substantive materials in support of his claim, the relief of injunction being a discretionary and equitable relief, on the facts, the appellant is not entitled to such a relief.
12. Before us, the learned Counsel for the appellant has submitted that when there is no dispute about the appellant’s actual physical possession of the suit property, on his application seeking protection to his possession during pendency of the suit filed by him, the learned Judge of the Trial Court was not justified in refusing such relief. He has contended that in view of the provisions contained in Rule 104 of Order 21 of the Code of Civil Procedure, during pendency of the suit filed by the appellant claiming tenancy in respect of the suit property, the learned Trial Court should not have refused the injunction prayed for by the appellant for interim protection to his possession. It is also his contention that when the appellant filed the suit claiming that to the possession of the suit property,–before initiating any execution proceeding by the respondent No. 1 for execution of the fraudulent compromise decree, the learned Court below should have issued the injunction so as to protect the appellant’s present possession of the suit property.
13. In support of his contentions the learned Counsel for the appellant has relied upon the following decisions:–Krishna Ram Mahale v. Shobha Venkat Rao, ; Dalpat Kumar and Anr. v. Prahlad Singh and Ors., ; and Mira Chatterjee v. Sunil Kr. Chatterjee, (DB).
14. The learned Counsel for the respondent No. 1, on the other hand, has contended that assuming the appellant is in possession of the suit property, that, by itself, does not entitle him to an automatic injunction against eviction in execution of a decree by which he is bound. His contention is that the provisions of Order 21 Rule 104 of the Code of Civil Procedure do not create any enforceable right in favour of the appellant on his mere filing a suit,–claiming a right in the present possession of the suit property,–before the decree is put into execution by the respondent No. 1. His contention is also that against the respondent No. 1, who is admittedly the true owner of the suit property, the appellant who never had any independent right in respect thereof, and right to possession whereof he claims only as an employee of the respondent No. 2, against whom the eviction decree was passed, is not entitled to get the relief of temporary injunction for protection of his possession during pendency of the suit, on the grounds that in his suit he has prayed for setting aside of the eviction decree and a declaration that he is a tenant under the respondent No. 2.
15. In support of his contentions he has relied on the following decisions:–Lallu Yeshwant Singh v. Rao Jogdish Singh, reported in AIR 1968 SC 620 ; Premji Ratansey Shah and Ors. v. Union of India and Ors., ; and Mahadeo Savlaram Shelke and Ors. v. Pune Municipal Corporation and Anr., .
16. After hearing the learned Counsel for the parties, perusing the pleadings, and after considering the provisions of law and the decisions cited at the Bar, we are of the considered view that the appellant is not entitled to any injunction, and the impugned order does hot call for any interference by us. Our reasons are recorded hereinafter.
17. Mere possessory right of a person to a property is not sufficient to entitle him to an injunction against its true owner, particularly when the owner has an existing right to recover possession thereof in execution of a Civil Court decree. Such a person may have a protection against dispossession without due process of law, but not against eviction through due process of law. A person claiming a right to the present possession of a property, cannot by obtaining a temporary injunction in a suit for a decree for such claimed right, put a stop to a decree for recovery of its possession, and clog up the execution of the existing decree.
18. To appreciate the above proposition, a brief look at the provisions of Rules 97 to 104 of Order 21 of the Code of Civil Procedure is necessary.
19. A proceeding under Order 21 Rule 97 commences when a person entitled to obtain possession of some immovable property in terms of a decree therefor, being unable to obtain the possession due to resistance or obstruction put up by some one, makes an application to the executing Court complaining of such resistance or obstruction. Rule 98 of Order 21 provides that on such application, orders shall be passed by the executing Court, only upon the determination of the questions referred to in Rule 101 thereof. Similarly, a proceeding under Rule 99 of Order 21 commences when a person, other than the judgment-debtor, makes an application before the executing Court complaining of dispossession of immovable property in execution of a decree. Orders on such an application are also to be passed by the Court upon determination of the questions referred to in Rule 101.
20. Now, Rule 101 says that an executing Court dealing with a proceeding commencing either on an application under Rule 97 or Rule 99 shall determine all questions (including questions relating to right, title or interest in the property) arising between the parties. It further provides that all such questions shall be determined in such a proceeding, and not by a separate suit for the purpose. It means, for the purpose of determining all such questions, no separate suit will be required to be filed. In other words, it prohibits filing of a separate suit for determining all or any question referred to in Rule 101, after a proceeding under Rule 97 or Rule 99 commences. In fact, under Rule 101 no order is passed or is required to be passed by the executing Court; it only casts the obligation on the Court to determine all the questions referred to therein, before passing orders under Rule 98 in a proceeding on an application under Rule 97, or under Rule 100 in a proceeding on an application under Rule 99. Rule 103 says that order passed under Rule 98 or Rule 100 shall have the force of a decree. Once again, Rule 103 also does not contemplate passing of any order thereunder by the executing Court.
21. Rule 104, however, refers to orders passed by the executing Court under Rule 101 or Rule 103. It says that if on the date of commencement of a proceeding, in which such order is made, any suit filed by any person against whom such order is made pending, then such order shall be subject to the result of such prior suit, if in such suit such person has sought to establish a right which he claims to the present possession of the property.
22. We have seen that the executing Court is not supposed to pass any order under Rule 101 or Rule 103. Rule 101 only obliges it to determine all the questions arising between the parties, not by requiring the parties to file a separate suit, but in the proceeding under Rule 97 or Rule 99, as the case may be. Orders are to be passed under Rule 98 or Rule 100, and Rule 104 does not refer to either of these rules. Under Rule 103 also the executing Court is not supposed to pass any order. This only declares the status of the orders passed by the executing Court under Rule 98 or Rule 100. So it appears that by the language of Rule 104 what the legislature intended to say is that the determination of the questions referred to in Rule 101 and consequent adverse order under Rule 98 or Rule 100 shall be subject to the result of a suit (in which the person against whom such determination and order is made has sought to establish a right which he claims to the present possession of the property), if such a suit is pending on the date of commencement of a proceeding under Rule 97 or Rule 99. It means, the result of a suit (in which a person has sought to establish a right which he claims to the present possession of the property), pending on the date of commencement of a proceeding under Rule 97 or Rule 99 of Order 21 of the Code of Civil Procedure, shall prevail over the determination and finding recorded by the executing Court on any question referred to in Rule 101, and consequent adverse order passed under Rule 98 or Rule 100.
23. It is therefore clear from the provisions of Rules 97 to 104 of Order 21 of the Code of Civil Procedure that a person who files a suit claiming a right to the present possession of an immovable property, for recovery whereof a valid Civil Court decree exists, can resist dispossession in execution of such a decree only if he succeeds in a proceeding in connection with such decree under Rule 97 or Rule 99 of Order 21. If the order passed by the executing Court under Rule 98 or Rule 100 goes against such a person, he will no longer enjoy protection to his possession of the property; he is bound to be dispossessed of it in execution of the decree. The fact that a suit of the nature referred to in Rule 104 is pending will be totally insignificant in such a situation for the purpose of protecting his present possession of the property. What Rule 104 contemplates is that his dispossession in terms of orders under Rule 98 or Rule 100 passed on the basis of determinations made under Rule 101 shall be subject to the result of his suit. In other words, the result of his such suit shall prevail over the determinations made and consequent orders passed under Rules 101 and 98 or 100 respectively. He will be entitled to restoration of possession if the result of his suit goes in his favour.
24. We are thus of the opinion that a person filing a suit of the nature referred to in Rule 104 of Order 21 of the Code of Civil Procedure is not entitled to get a temporary injunction in his such suit so as to protect his present possession of the suit property for recovery of possession whereof there exists an executable Civil Court decree. For protecting his such right during pendency of his such suit he is required to succeed only and only in a proceeding under Rule 97 or Rule 99 when such a proceeding commences. On the ground that a proceeding under Rule 97 is yet to commence, and hence in the already pending suit an injunction prayer for protecting of the present possession can be considered, may be a contention of such person, but it also cannot be accepted. In the face of a decree for recovery of possession, such a person will have no protection of his present possession, except by a favourable order in a proceeding under Rule 97 or Rule 99. The words “subject to the result of any suit” have been employed in the provisions of Rule 104 with the specific intention to ensure unhindered progress of a proceeding for execution of a decree for recovery of possession of immovable property. While Rule 101 puts an implied bar to the maintainability of a suit filed, after a proceeding under Rule 97 or Rule 99 commences, by any one who resists delivery of possession by putting up some claim to the possession of the property, Rule 104 saves a suit by such a person filed, prior to the commencement of such proceeding, for such purpose. But by using the words “subject to the result of any suit” this rule made it clear that despite pendency of such a prior suit, the proceeding under its preceding rules should not be stalled. An injunction in such a prior suit to stall the proceeding under the rules preceding Rule 104 will thus be contrary to the legislative intendment with which such provisions have been made. The use of the word “result” is very significant; the phrase is not “subject to any suit.”
25. Provisions of Order 39 Rule 1 mention the cases in which temporary injunction may be granted in a suit. Clause (c) of Rule 1 of Order 39 specifically provides that where in a suit it is proved by affidavit or otherwise that the defendant threatens to dispossess the plaintiff of the suit property, the Court may grant a temporary injunction for preventing the plaintiffs dispossession.
26. In our considered view, a plaintiff in a suit will not be entitled to an injunction under Order 39 Rule 1 for preventing his dispossession by a defendant who takes steps or is entitled to take steps to dispossess the plaintiff, of the suit property, in execution of a decree for recovery of possession thereof. The position is so, because of the provisions of Rule 104 of Order 21 which, while permits such a plaintiff to maintain a suit claiming a right in the present possession of the property, however, does not permit him the right to resist delivery of possession thereof, in terms of the decree, except on the strength of a favourable order in a proceeding under Rule 97 or Rule 99 of Order 21. It, however, does not mean that he cannot seek, and obtain in a given case, an injunction under Order 39, by making an application both at the stage of and subsequent to dispossession, to prevent waste, damage and/or creation of third party interest by the defendant(s) in his pending suit. Such application is always required to be decided on merit of each case.
27. From the position of law as discussed before, it is evident that in the present case the appellant is not entitled to get any temporary injunction so as to protect his present possession of the suit property for recovery whereof there exists an executable decree in favour of the respondent No. 1. It goes without saying that he will be entitled–(a) to assert and establish his right to the present possession of the suit property, once a proceeding commences under Rule 97 or Rule 99 of Order 21, and (b) to win protection for his such possession therein. If he fails in such proceeding, he will be required to wait till the result of his pending suit. The scheme of the provisions of law being as already discussed, irrespective of whether the appellant is in possession of the suit property or not, in the face of the operative decree, he is not entitled to an injunction in his suit to restrain the respondent No. 1 (the decree holder) from recovering possession of the suit property by executing the decree. The questions–(a) whether the appellant has a right to the present possession of the suit property, or (b) whether he is bound by the decree in question, are absolutely irrelevant at this stage, because, in our view, he is not entitled to seek the injunction of the nature he applied for. Such questions will, however, be-relevant:– first in a proceeding under Rule 97 or Rule 99; and secondly, at the time of final adjudication of his pending suit, which, however, on the facts and in law, cannot be said to be not maintainable.
28. Besides, even on merit we are satisfied that the case made out by the appellant does not justify grant of a temporary injunction to prevent his dispossession of the suit property during pendency of his suit. According to his own case–(a) the respondent No. 2 took it on lease from the respondent No. 1 for 21 years from 1st August, 1973; (b) he was put into possession thereof by an erstwhile director of the respondent No. 2; (c) he came to possess it to reside there only as an employee of the respondent No. 2; (d) he had full knowledge of the suit filed by the respondent No. 2 seeking declaration as a monthly tenant, and the suit filed by the respondent No. 1 for eviction of the respondent No. 2; (e) he was repeatedly told by the respondent No. 2 to vacate the suit property, as his employer was not interested to continue with the tenancy; and (f) on his refusal to accede to the request of the respondent No. 2 the relationship turned bitter and the respondent No. 2 entered into compromise with the respondent
No. 1. From his such case we do not find any material to reach a prima facie satisfaction that there is an inkling of any legal right on the basis whereof the appellant can seek a decree for declaration that in respect of the suit property he is a lawful tenant under the respondent No. 2 (his employer), or that the eviction decree (the passing whereof the appellant watched as a fence sitter) is void being collusive and obtained by practising fraud on the Court. We find that the appellant failed to make out any prima facie case for getting the relief of temporary injunction.
29. Our considered view being as recorded before, we do not find the necessity of discussing in great detail the propositions of law laid down in the decisions cited at the Bar. We give only a quick look at them. In Krishna Ram Mahale’s case the licensee was dispossessed by the licensor unlawfully and behind the licensee’s back. In this context the Supreme Court held that a person having no right to remain on a property, cannot be dispossessed by the owner thereof, except by recourse to law. On the facts of this case, the said proposition does not apply. In Dalpat Kumar’s case the Supreme Court restated the principles on which a prayer for interim injunction is required to be considered. There is no dispute on this question. In Mira Chatterjee’s case the principal decided issue was–the question of maintainability of a suit of the nature referred to in Rule 104 of Order 21; the scope of granting an injunction was not decided, In this case, we are concerned, chiefly, with the question of injunction. So Mira Chatterjee’s case does not help the appellant in any manner. The precedents cited by the learned Counsel for the respondent No. 1 do not address the issue directly involved in this case. So for the sake of brevity we are not dwelling on them except saying that the principles stated therein for granting temporary injunction are unexceptionable.
30. For the foregoing reasons, we find no reason to interfere with the order impugned in this appeal.
31. In the result, this appeal fails, and hence the same is hereby dismissed, together with the accompanying application (CAN No. 6656 of 2003) for interim relief. In the facts and circumstances of the case, there will be no order as to costs.
Aloke Chakrabarti, J.
32. I agree.