GADADHAR DAS Vs. SANTOSH KUMAR MUKHERJEE
HIGH COURT OF CALCUTTA
SANTOSH KUMAR MUKHERJEE
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(1.) THIS petition under section 115 C. P. Code filed by defendants-petitioners is directed against order dated 8. 2. 83 passed in Misc, appeal No. 72 of 1982 by the Additional sessions Judge, 3rd Court, Howrah, affirming the order of the learned Munsif 2nd Court Howrah dated 24 3 82 passed in Title Suit No. 315 of 1981. The learned Munsif had allowed the plaintiff opposite party's prayer for temporary mandatory injunction. The undisputed facts are that plaintiff opposite party was in' possession of the suit premises as a tenant for quite a long time; and formerly his landlord was Shri Jyotibhusan Banerjee. The defendant petitioners stepped into the shoes of Jyotibhusan by virtue of purchase by a deed dated 21. 4. 80 and became the landlords of the plaintiff opposite party. While Jyotibhusan was the landlord of the plaintiff, the plaintiff alleged that he had disrupted the supply of electricity in the premises of the plaintiff, filed a case against him under the provisions of the West Bengal Premises Tenancy Act before the Rent Controller and obtained an order for restoration of electricity. Subsequently the defendant-petitioners came into picture and plaintiff filed the suit in the Court below for various reliefs against the defendant-petitioners, on the allegation that with a view to put pressure on the plaintiff and to compel him to vacate the suit premises the defendants were preventing restoration of electricity to the suit premises compelled the plaintiff to live in darkness and polluted the water of the ring-well from which the plaintiff got supply of water. The point to note is that the suit is a suit for declaration and permanent injunction and one of the prayers made in the suit is for restoration of supply of electricity to the suit premises. In the suit pending before the learned Munsif, the plaintiff filed a petition under order 39 Rule 1 and 2 c. P. Code praying for temporary mandatory injunction, in conformity with his prayer for permanent injunction, for restoration of supply of electricity to the suit premises. By a cryptic, ill written and unintelligible order the learned Munsif allowed the plaintiff's petition for temporary injunction. He ordered "that the petitioner is at liberty to have electric connection on his own account. The consent of the landlord shall be deemed to have been given with the passing of this order. As regards other matters parties are required to maintain status quo till the disposal of the suit. " the defendants felt aggrieved with the order of the learned Munsif and preferred Misc. Appeal No. 72; of 1980. But the order passed by the learned Munsif has been affirmed.
(2.) FROM a perusal of the order of the learned Additional District Judge impugned herein it transpires that the reading of electric meter in the suit premises indicated that electricity was supplied upto 29. 5. 80 whereas the defendant petitioners became landlords from a prior date, namely, 21. 4. 80. The learned Additional District Judge accordingly concluded that relief by way of restoration of supply of electricity by the tenant was available against the defendant petitioners. Relying on the decision of the Division Bench of this Court in Loken Bose vs. Ashim De reported in 81 c. W:. N. 948 the learned Additional Judge concluded that the relief under the west Bengal Premises Tenancy Act could be given by a Civil Court like that of the Munsif in the present Case, in a suit and the power to grant such relief was not exclusively vested in the Rent Controller.
(3.) THE learned advocate for the defendant petitioners contends that the learned courts below exceeded their jurisdiction in passing the order of temporary mandatory injunction in. the facts and circumstances in which the temporary mandatory injunction was prayed for. The terms in which the prayer was made and the grounds on which the prayer was resisted are not stated in the order passed by the learned Munsif. The prayer for temporary injunction is normally considered from different aspects like prima facie case, urgency, balance of convenience and inconvenience, irreparable loss or injury etc. The learned Munsif does not appear to have considered the prayer from these aspects. It is doubtful if the order of the learned Munsif couched in the fashion quoted earlier is capable of execution lender Order 21 Rule 32 read with Section 36 C. P. C. Be that as it may, I come now to the order of the appellate Court affirming the order of the learned Munsif. For the purpose of arriving at the conclusion that a Civil Court in exercise of its power under Cr. 39 C. P. C. by issue of temporary injunction can grant relief's contemplated under sections 31-36 of the west Bengal Premises Tenancy Act, the learned appellate court referred to the decision in the case of Loken Bose.;
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