V.K.Gupta, J. - (1.) -This Appeal is directed against the judgment and order dated 5th February, 1993 passed by the learned single Judge of this Court in Extraordinary Suit No. 8 of 1990 whereby the application filed by the Respondent No. 1 in terms of Order 7 Rule 11 CPC for rejection of the plaint filed by the Appellant/Plaintiff was allowed on the basis of the direction issued by the learned single Judge that the plaint be forth with taken off the File. At the same time in the Order under appeal the learned single Judge also observed that the plaintiff/appellant would be entitled to make an application under section 47 CPC for the purpose of protection of its rights.
(2.) The brief facts leading to the filling of the appeal are that the plaintiff/appellant claims to be in occupation of a portion of the 5th floor measuring about 2200 square feet in premises No. 4 Government Place (North) Calcutta (5th floor of the said premises). The case of the appellant is that since August 1970 and at all material times thereafter up till date, the plaintiff/appellant has been a monthly tenant in respect of the demised premises being in its lawful possession. The plaintiff's case is that he was inducted as a sub-tenant in the demised premises by the predecessor-in-interest of respondent No. 2 with the previous consent in writing of the predecessor-in-interest of respondent No. 1, The predecessor-in-interest of respondent No. 1 and at present the respondent No. 1 itself are the owners of the demised premises and the predecessor-in-interest of respondent No. 2 was the tenant of the same along with certain other portions in No. 4 Government place (North) Calcutta popularly known as "Eagle House". It appears that in the year 1987 a Suit, being Suit No. 883 of 1987 was filed by respondent No. 1 against respondent No. 2 for the eviction of respondent No. 2 from the premises in question. On 9th June, 1989 a decree purported to be based on the consent and the agreement of the parties in that Suit was passed by this Court. By the said decree the defendant in the said Suit (respondent No. 2 in the present Appeal) was to deliver the khas possession of the 3rd, 4th, 5th and 6th floors of the premises No. 4 Government place (North), Calcutta, Eagle House. But the plaintiff in the aforesaid Suit (respondent No. 1 herein) undertook in the said decree not to execute the same against the defendant therein for the recovery of khas possession in respect of a specified portion of the aforesaid property in view of the fact that the defendant therein had agreed to take a fresh lease for the said area from the plaintiff on the terms and conditions stipulated in the decree itself. The decree therefore mentioned that, but for the aforesaid specified portion forming a part of the Eagle House, the decree could be executed. In other words, it meant that in respect of the portion not specified the decree was executable which also meant that the portion occupied by the appellant herein in his capacity as a sub-tenant of respondent No. 2 herein was liable to be executed because that portion also formed a part of the subject matter of the said decree.
(3.) Being aggrieved with the passing of the aforesaid decree the appellant filed the suit, as indicated hereinabove for a declaration and perpetual injunction. The following reliefs were claimed in the said suit. (a)Declaration that the purported decree and Order dated June 9, 1989 made in the Suit No. 883 of 1987 (Delta International v. The Oriental Insurance Co. Ltd.) is invalid, null, void, of no effect, not binding on and enforceable against the plaintiff; (b)If necessary, declaration that the plaintiff was and is a tenant in respect of the portion of the 5th Floor of the Premises No. 4, Government Place (North), Calcutta particulars whereof are set out in schedule "A" to the plaint, and is entitled to be in possession, occupation, use and enjoyment thereof as such tenant, (c)Perpetual Injunction restraining the defendants, their servants, agents and assigns and each of them from in any way or manner whatsoever to rely, act upon, implement, enforce and give effect to and/or cause to be given effect to and/or enforced and/or taking any steps therefore, the purported decree and order dated June 9, 1989 made in the said Suit No. 883 of 1987; (d)Perpetual Injunction restraining the defendants, their servants, agents and assigns and each of them from in any way or manner whatsoever preventing, interfering, obstructing, taking any steps with regard thereto and/or causing to be interfered with and obstructed the possession, occupation use and enjoyment by the plaintiff of the said portion of the 5th floor of the said premises No. 4, Government Place (North), Calcutta; (e)Costs; (f)Receiver; (g)Injunction; (h)Further and other reliefs. ;