Prasenjit Mandal, J. - (1.) This is an application under Article 227 of the Constitution of India filed by the plaintiff and is directed against the order no.52 dated 12.10.2006 passed by the learned Judge, City Civil Court, Tenth Bench, Calcutta in Title Suit No.1635 of 2004 thereby dismissing an application under Section 151 of the Code of Civil Procedure.
(2.) The plaintiff/petitioner filed the suit contending, inter alia, that he is a tenant in respect of the suit shop room situated at premises no.35, Kailash Bose Street under P.S. Amherst Street, Calcutta 700 006 and he carries on business of tobacco and other materials. Originally, late Gajadhar Prasad, grandfather of the applicant, was the owner of the said shop room and he executed a deed of gift of the said shop room in favour of the plaintiff/petitioner and thus he got the said shop room for business. This is the only source of income. There was an agreement between the promoters, developers and the tenants / occupants to the effect that the said premises would be demolished and multistoried building would be constructed and the respective tenants would get possession according to the fresh agreement entered into. According to the case of the petitioner, he got the possession of the said shop room but he was dispossessed by the other heirs of late Gajadhar Prasad and for that reason he filed the suit for declaration, injunction and other reliefs. In that suit, an order of status quo was passed. But the defendants who are none but the heirs of late Gajadhar Prasad are contesting the said suit. The parties are directed to maintain status quo as per order. But in violation of that order, the defendants/opposite parties took forcible possession of the said suit premises. For that reason, he filed an application under Order 39 Rule 2A of the C.P.C. which is still pending. He also filed another application under Section 151 of the C.P.C. for getting possession of the said shop room which was rejected by the order impugned. Being aggrieved, he has preferred this application.
(3.) Mr. Maity, learned Advocate appearing on behalf of the petitioner, submits that the finding of the learned Trial Judge cannot be supported because he has simply observed that when the application for violation of the order of injunction under Order 39 Rule 2A is pending, the prayer for restoration could not be granted. In fact, the application under Order 39 Rule 2A has been preferred for violation of the order which if decided in favour of the petitioner, the opposite party would be put to jail or fine might be imposed. But, by the present application under Section 151 of the C.P.C., he has simply prayed for taking over the possession of the premises, i.e., the shop room. So, the object of the two applications is quite distinct and separate. Hence, this application could well be maintained for getting the appropriate reliefs. In support of his contention, Mr. Maity has referred to the following decisions AIR 1986 Cal 220, AIR 1993 Cal 288, (1996) 4 SCC 622, (2008) 8 SCC 348, AIR 1978 Cal 499 and thus he submitted that this court will take appropriate steps for delivery of possession as per agreement between the landowners, developers and the tenants.;