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1994 (1) TMI 286 - SUPREME COURT

1994 (1) TMI 286 - SUPREME COURT - 1994 AIR 1837, 1994 (1) SCR 413, 1994 (2) SCC 266, 1994 (1) JT 325, 1994 (1) SCALE 286 - 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 Cou .....

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g the outhouse and garages of which the Durgapur Diocese is in possession and/or occupation, belong to the said Diocese of Durgapur 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, th .....

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bearers have no right and/or authority to appoint Moderator Commissary and/or Episcopal Commissary and the Executive Committee as well as the Diocesan Council of Durgapur cannot be dissolved and/or superseded and/or disturbed and the said council as well as Executive Committee would be allowed to function to its full tenure, i.e., September 8, 1989; (d) An order be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 defend .....

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ning the defendants and their servants and agents from collecting rent, issues and/or profits of the properties belonging to 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 gr .....

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of Durgapur Diocese till further orders. 3. On June 1, 1988 this order was modified stating that the order dated May 20, 1988 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 i .....

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charge. All parties are to act on a signed copy of the minutes of this order." 4.From the above it is seen that in relation 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 pad .....

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tory was made. 6. On August 4, 1993 the Special Officer was directed to continue the inquiry and complete the same as per order 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 s .....

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s: "It is submitted by Mr Ghosh that even after the inventory is complete the Receiver has put padlock. Mr Bhattacharjee, 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 .....

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nnot be decided in this proceeding. It is for the landlord to initiate appropriate proceedings for their ejectment. But at this 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 .....

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Somani Builders to the Joint Receivers without prejudice to the rights and contentions of the parties. 10. Under these circumstances 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 a .....

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oval of padlock at its instance, as directed by the learned Single Judge, was not warranted. As though to add insult to injury 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 be .....

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are fully aware that they cannot succeed in the suit filed by Respondent 1 and, therefore, they have taken a short-cut method 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 an .....

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. Aandagopal 1986 Supp SCC 568 , (ii) State of Maharashtra v. Dadamiya Babumiya Sheikh (1972) 3 SCC 85: 1972 SCC (Cri) 405." 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 applicatio .....

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ngle Judge. It became necessary on the part of the Somani Builders to mention before the learned Single Judge because its possession 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 premis .....

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and Jang Singh v. Brij Lal (1961) 2 SCR 918: (1961) 1 Ker LR 437 6 AIR 1966 SC 1631. (b) In Jagat Dhish Bhargava v. Jawahar 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 .....

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ct, 1971); (c) The said contempt petition was filed by Respondent 1 against some of the special leave petitioners contending 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 .....

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he Diocese of Durgapur and Diocese of Durgapur has alone exclusive right, title and interest to use the same; (e) On May 20, 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 .....

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, 1988 was not nor could be affected by the said order of status quo dated September 15, 1988." Therefore, no exception 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 .....

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mpt. Unfortunately, it has taken a devious course and peculiar orders have been passed both by the learned Single Judge as well 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 .....

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17. First of all, whether A.K. Ghosh was a tenant is itself in dispute. Secondly, whether A.K. Ghosh had a right to create 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 le .....

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asis to found their claim. 18. Still worse was to follow. When the appellants before us complained of this direction by the 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 Joi .....

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atus quo has been edefined as meaning: "The existing state of things at any given date; e.g., Status quo ante bellum, the 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 pend .....

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n and proceeds upon a total misappreciation of the facts. We are obliged to remark that both the learned Single Judge as well 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 warran .....

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sturb the state of things as they then stood. It would amount to violation of the order. The principle contained in the maxim 'actus curiae neminem gravabit' has no application at all to the facts of this case when in violation of status quo order a sub-tenancy has been created. Equally, the contention that even a trespasser cannot be evicted without recourse to law is without merit, because the state of affairs in relation to property as on September 15, 1988 is what the court is concer .....

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