DEBENDRA JHA Vs. MINAKSHI DAS

JUDGEMENT

(1.) This writ application is directed against the order dated 15-11-2004 passed by the learned Additional District Judge, Fast Track Court No. III, Bhubaneswar in F.A.O. No. 23/149 of 2004 allowing the appeal and setting aside the order dated 7-10-2004 passed by the learned Civil Judge (Junior Division), Bhubaneswar in LA, No. 425 of 2004 directing the defendant-opposite party to restore electricity and water supply to the suit premises and for further restraining the defendant-opposite party from evicting the plaintiff-petitioner from the suit premises during pendency of the suit.

(2.) The case of the plaintiff-petitioner is that he was inducted as a monthly tenant in the suit house in April, 1995 by one Ratnamani Dash, who happens to be the mother-in-law of the defendant-opposite party. The plaintiff-petitioner was paying monthly rent of Rs. 2,500/- including electricity and water charges and after death of Ratnamani Dash, the defendant-opposite party was receiving house rent and also granting receipts. While the matter stood thus, dispute arose between the defendant and daughters of the deceased Ratnamani Dash relating to collection of rent and ultimately a Partition Suit (C.S. No. 20 of 2003) was filed. On 12-9-2004 the defendant-opposite party with the help of some anti-socials threatened the plaintiff-petitioner to vacate the suit house otherwise she would disconnect the electricity and water supply. Having received the threat, the plaintiff-petitioner approached the learned Civil Judge (Junior Division), Bhubaneswar for permanent injunction. In the said suit an application under Order 39, Rules 1 and 2 was also filed by the plaintiff-petitioner for restraining the defendant-opposite party from disconnecting the electricity and water supply as well as for an interim direction not to evict him during pendency of the suit. The said petition was allowed by the learned Civil Judge on 7-10-2004. Challenging the said order an appeal was filed before the learned Additional District Judge, Fast Track Court No. III, Bhubaneswar and the said appeal having been allowed, the plaintiff-petitioner has filed this writ application.

(3.) Shri S. P. Mishra, the learned counsel appearing for the petitioner submitted that admittedly the monthly tenancy has not been terminated by notice under Section 106 of the Transfer of Properties Act nor the tenancy has expired by efflux of time. Since the tenancy is still continuing, the plaintiff-petitioner cannot be evicted by force nor can electricity and water supply be disconnected. The learned counsel appearing for the defendant-opposite party, on the other hand, submitted that there cannot be any order of injunction against the true owner and, therefore, the appellate Court was justified in setting aside the order of injunction granted by the trial Court. In support of their respective contentions, the learned counsel appearing for both the parties have referred to some decisions.