Feedback   New User   Login      
Tax Management India. Com TMI - Tax Management India. Com
Home Acts / Rules Notifications Circulars Tariff/ ITC HSN Forms Case Laws Manuals Short Notes Articles News Highlights
Extracts
Home List
← Previous Next →

Styabrata Biswas Versus Kalyan Kumar Kisku

1994 (1) TMI 286 - SUPREME COURT

Appeal Civil 449 of 1994 - Dated:- 27-1-1994 - MOHAN, S. & ANAND, A.S. JJ. JUDGMENT: MOHAN, J.-Leave granted. 2. The short facts leading to this appeal are under. The premises in dispute is a Church property situate at No. 16 Sudder Street, Calcutta including the outhouse. The first respondent, Kalyan Kumar Kisku, filed a suit bearing No. 328 of 1988 before the High Court of Calcutta, for declaration of title, in his capacity as Secretary of Durgapur Diocese. It was claimed in the said suit .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

urgapur to the exclusion of Diocese of Calcutta and the Durgapur Diocese alone has the executive right and title to use and enjoy the same; (b) A decree be passed declaring that until the properties of the Durgapur Diocese are demarcated and/or transferred and/or handed over to the Diocese of Durgapur in terms of the resolution of the CNI Synod from the Calcutta Diocese, the power of attorney executed by the Trustees of the Calcutta Diocese Trust Association in favour of the Durgapur Diocese be .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ee as well as the Diocesan Council of Durgapur cannot be dissolved and/or superseded and/or disturbed and the said council as well as Executive Committee would be allowed to function to its full tenure, i.e., September 8, 1989; (d) An order be passed granting leave under Order (1) Rule 8 of the Civil Procedure Code; (e) Permanent injunction be granted restraining the defendants from interfering with the functions of the Diocesan Council as well as the Executive Committee of the Durgapur Diocese .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the Durgapur Diocese in terms of the CNI Synod resolution and by operation of the power of attorney executed and/or to be executed by the Calcutta Diocesan Trust Association until the properties belonging to the Diocese of Durgapur are handed over and/or transferred to the Durgapur Diocese by the Calcutta Diocesan Trust Association (Private). (h) Permanent injunction be granted restraining the defendants and particularly the CNI Synod office bearers in the matter of Episcopal Election and furth .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

8 will not stand in the way of retirement of the Bishop which was due on June 4, 1988 or the appointment of the Commissary by the Moderator of the Church of Nottingham. The defendants were directed to appoint a new Bishop within 5 weeks from the date of the said order. We may at this juncture point out that these two orders are not material for our purposes. However, what is important is the order dated September 15, 1988. That order is extracted in full: "This application will stand adjour .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

tion to the properties an order of statusquo as of today, (that is, September 15, 1988) had been passed by the court. It is complained that there is a violation of these three orders by the six respondents, Satyabrata Biswas, Rev. Bilash Chandra Das, Salil Biswas, Sushil Sharma, Rt. Rev. Dinesh Chandra Gorai and Rt. Rev. John E. Ghosh. The contempt was for (1) putting a padlock to the main entrance of the premises on July 3, 1993; (2) disconnecting water supply; (3) obstructing sewerage line; an .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

der dated July 26, 1993. The keys to the main door were to remain with the officer-in-charge, Taltola Police Station. 7. On August 16, 1993 the said order dated July 26, 1993 was modified to the effect that the Receiver would make the inventory of the articles in terms of the earlier order, but would not put the main entrance gate under lock and key. A modification to the said order dated August 16, 1993 was sought to the effect that the Special Officer should allow representatives of each of th .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e, learned Receiver is present. It is submitted by the Receiver that the inventory is complete. Receiver is directed to remove the padlock, if any, put by him by tomorrow." 8. Aggrieved by these proceedings an appeal came to be preferred by the appellants. It was contended by the learned counsel appearing on behalf of the appellants that the said A.K. Ghosh was neither a tenant nor did he have the competence or authority to let out any portion of the premises in question. Therefore, the sai .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

his stage, the question is whether Somani Builders Pvt. Ltd. is in occupation or not. On the facts and in the circumstances of this case, we are prima facie satisfied that the company was i n occupation of the disputed premises. Even a trespasser can be evicted only by due process of law." 9. Thereafter it proceeded to appoint Joint Receivers with a direction to obtain the keys from the officer-in-charge Taltola Police Station. They would make an inventory of the rooms stated to have been o .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

umstances the present civil appeal by special leave has come to be preferred. It is urged on behalf of the appellants that in view of the statuts quo order dated September 15, 1988 regarding the fixed property in possession of the Durgapur Diocese no tenancy or sub- tenancy rights could be created. It was also urged that the said Somani Builders became sub-tenant under an agreement dated May 10, 1993. Such a subtenancy cannot be valid in view of the status quo order. It is somewhat strange that .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ry when the appellant was complaining about this order, the Division Bench went one step further and directed that possession be given to Somani Builders. This direction would amount to putting a premium on the illegality committed by the former alleged tenant A.K. Ghosh. 11. First of all, he had no authority to grant a tenancy. Even otherwise, since status quo order had been passed by the Court on September 15, 1988 the creation of sub-tenancy under the agreement dated May 10, 1993 would not co .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

d to obtain their objective by adopting illegal and unfair means, thereby dispossessing all occupants of the first floor without sanction of law. It was held by this Hon'ble Court in the case of Bharat Coking Coal Ltd. v. State of Bihar 1987 Supp SCC 394 that according to the ordinary legal connotation, the term status quo' implies the existing state of things at any given point of time. It is submitted that in view of the definition of 'status quo' as aforesaid, the Durgapur Dio .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

quot; 13. Learned counsel for the respondent-tenant, A.K. Ghosh, would urge that he was the tenant of the premises from 1988 onwards. He had been specifically authorised to create a sub-tenancy by a resolution of Durgapur Diocese dated March 11, 1988 to grant the sublease. The order of status quo was against the parties who had been impleaded in the interlocutory application. 14. Mr P. Chidambaram, learned counsel for Somani Builders would submit that the application for contempt was directed ag .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ssession came to be disturbed by the Special Officer fixing the padlock. Till then the question of impleading itself did not arise. only when it was affected oral mention had to be made. The appellate court found that there was disturbance of possession which came to be restored to Somani Builders. Inasmuch as the inventory disclosed, its properties were found in the premises. In the written submissions, it is further urged: "Actus curiae neminem gravabit meaning thereby an act of Court sha .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Lal Bhargava'(1964) 2 SCR 145: 65 Punj LR 884 the Hon'ble Supreme Court has stated 'the litigant deserves to be protected against the default committed or negligence shown by the court or its officers in the discharge of their duties.' In a contempt proceedings, which was not even initiated against Respondent 2 or any of its officers, the said respondent was dispossessed : (a) The Court has no jurisdiction to direct dispossession of anyone in a contempt proceedings. Neither the C .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

that the special leave petitioners have violated the order of Court. (d) Therefore, the Court had no jurisdiction to pass an order of dispossession against Respondent 2 in such proceedings. No order passed in suit can bind a person, who was not a party thereto: (a) The tenant Ashok Kumar Ghosh and his sub- tenant Somani Builders Private Limited were not parties to the suit instituted in the High Court of Calcutta. Therefore, none of the orders passed in the said suit was ever or is at all bindi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

1988, the Parties to the suit were directed to maintain status quo in respect of running of Diocese of Durgapur till further order; (f) On September 15, 1988, the Calcutta High Court passed an order of status quo as of the said date in regard to the fixed properties of Diocese of Durgapur; (g) The said orders were not, nor can claim to be binding on the tenant Ashok Kumar Ghosh; (h) In any event, the status quo order passed on September 15, 1988 which specifically mentioned that the same should .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

would be taken to the impugned order. 15. In order to appreciate the respective contentions it is necessary to state that violation of the following three orders were complained of: (1) May 20, 1988 (2) June 1, 1988 (3) September 15, 1988 16.As stated above, we are not concerned with the first of the two orders since they do not relate to the property. It is the violation of the order dated September 15, 1988 (already extracted) which gives rise to contempt. The contempt was chiefly about the r .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ell as the Division Bench. The learned Single Judge directed by order dated July 26, 1993 the Special Officer to make an inventory of the state of affairs. Where was the need to make the inventory of things is difficult to understand having regard to the nature of violation alleged in the petition for contempt. The Special Officer had put his own padlock after inventory had been taken. Whether it was the main entrance or not was an ancillary issue. It is at this stage that Somani Builders entere .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

a sub-tenancy is again in dispute. Thirdly, more than above all this, when the right of sub-tenancy was sought to be founded on an agreement dated May 10, 1993, it should have occurred to the learned Single Judge that such a creation of sub-tenancy was clearly violative of the order of status quo passed as early as September 15, 1988. It is extremely unfortunate that the learned Judge had not even cared to bestow a thought and entertained an oral application at the instance of a person who had n .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

learned Single Judge to remove the padlock, the Division Bench followed a novel procedure. We have already extracted its finding in relation to the validity of sub-tenancy. Having held in no uncertain terms whether or not the Somani Builders is lawfully a sub-tenant, cannot be decided in the proceeding, it should have thrown out the plea of Somani Builders. Why then the Joint Receivers were directed to allow Somani Builders to occupy the premises for the purpose of carrying on business passes ou .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

he state of things before the war." 20. According to Black's Law Dictionary, 6th Edn. the relevant passage occurs: "The existing state of things at any given date. Status quo ante bellum, the state of things before the war. 'Status quo' to be preserved by a preliminary injunction is the last actual, peaceable, uncontested status which preceded the pending controversy." 21.This Court in Bharat Coking Coal Ltd. v. State of Bihar' stated thus: (SCC p.398, para 5) &quo .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

l as the Division Bench had not kept themselves within the precincts of contempt jurisdiction. Instead peculiar orders have come to be passed totally alien to the issue and disregardful of the facts. The orders of the learned Single Judge and that of the Division Bench cannot stand even a moment's scrutiny. Therefore, it is idle to contend that no interference is warranted under Article 136. 23.Apart from the fact whether A.K. Ghosh had a legal authority to sublease or not it was not open to .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 

Forum
what is new what is new
  ↓     bird's eye view     ↓  


|| Home || About us || Feedback || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version