SHAMPA SARKAR,J. - (1.) The petitioners are aggrieved by an order dated December 20, 2019 passed by the Learned District Judge at Alipore in Misc. Appeal 354 of 2019 by which the application for stay of operation of the order dated December 4, 2019 passed by the learned Trial Judge, was fixed for hearing on January 15, 2020 and written objection was directed to be filed. The petitioners are the committee members of Ballygung Park Towers Residents Committee. The Indian Church Trustees are the owners of the said building. The plaintiff/opposite party is a lessee just like the petitioners in respect of a flat in the said building.
(2.) The opposite party fled a suit being Title Suit No.1799 of 2019 before the learned Civil Judge (Junior Division) at Alipore for the following reliefs: "a) a decree for declaration to the effect that the plaintiff has every right to get accounts of the expenditure from the common maintenance fund of the building from the defendants. b) a decree for mandatory injunction directing the defendants to call for a general body meeting to form an Association of flat owners by way of election by the flat occupiers of the building complex described in the Schedule below; c) a decree for permanent injunction restraining the defendants from withdrawing money lying in the bank account of the flat owners of the building complex; d) a decree for mandatory injunction directing the defendants to furnish audited accounts of the expenditures made by them; e) a leave may be granted to the plaintiff under Order 1 Rule 8 of C.P.Code; f) Costs; g) Such other relief or reliefs as may be found, the plaintiff is entitled to in law and in equity."
(3.) It is the contention of the petitioners in the said suit that the lease agreement by virtue of which the plaintiff and the other lessees came into possession of the demised premises, provided that an association of flat owners would be formed for framing rules and regulations for use and enjoyment of the common paths, essential services and amenities in the building and also for carrying out common maintenance work of the building. It is the case of the plaintiff that without forming such an association and without framing rules and regulations the existing committee had illegally formed an association and were arbitrarily running a committee as also doing the maintenance work of the building from the common fund without furnishing accounts. That the committee had encashed a fixed deposit of Rs.6 lakh standing in the name of the committee and entrusted painting work to Berger Paints. The cause of action as pleaded in the said plaint arose on October 29, 2019 when the petitioners tore the letter of the plaintiff requesting formation of an association and refused to constitute a proper representative association of the flat owners and also refused to produce the accounts of expenses from the common fund. The opposite party filed an application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure and the learned Trial Judge by order dated December 4, 2019, directed that the plaintiff had a prima facie case to go to trial and restrained the defendants from making any unauthorised operation of common fund of the suit property. Aggrieved, the Misc. Appeal No.354 of 2019 was filed.;