PRASENJIT MANDAL, J. - (1.) THIS application is at the instance of the plaintiff and is directed against the Order dated February 7, 2012 passed by the learned Additional District Judge, 5th Court, Alipore in Misc. Appeal No.460 of 2011 arising out of Order No.7 dated September 21, 2011 passed by the learned Civil Judge (Junior Division), 3rd Court, Alipore in Title Suit No.12954 of 2011.
(2.) THE plaintiff/petitioner herein instituted a suit being Title Suit No.12954 of 2011 for declaration and injunction against the opposite party before the learned Civil Judge (Junior Division), Rd Court, Alipore. The relief as sought for is to the following effect: (i) That the plaintiff is a lawful tenant of the garage in suit as described in the schedule to the plaint at a rental of Rs.800/- per month payable accoRding to English calendar month; (ii) That permanent injunction restraining the defendant, his men and agents from creating any obstruction and interference with the peaceful enjoyment of the garage in suit till he is evicted under due process of law; and (iii) That for other reliefs. 3. The plaintiff filed an application for temporary injunction and that prayer for temporary injunction was rejected. Being aggrieved, the plaintiff preferred a Misc. Appeal and that Misc. Appeal was also dismissed on contests. Being aggrieved, this application has been preferred. Now, the question is whether the impugned oRder should be sustained. Upon hearing the learned Counsel for the parties and on going through the materials-on-record, I find that admittedly the possession of the garage in suit was delivered to the plaintiff/petitioner herein. While the plaintiff has stated that the delivery of possession of the garage in suit was made at a rental of Rs.800/- per month and that mother of the defendant inducted the plaintiff as a tenant in respect of that garage and accordingly, the plaintiff kept his car in the garage, subsequently, on one fine morning, he found that the defendant had put a lock on the door of the said garage in suit. As such, the said suit has been filed. The defence stand is to the effect that the said garage was given to the plaintiff only for two months but the plaintiff did not vacate the said premises and as such, the defendant took possession of the suit property. Since admittedly, the plaintiff was in possession of the premises in suit on the basis of an agreement at a rental of Rs.800/- per month, I find that the plaintiff has shown prima facie case to go for trial. The plaintiff has also contended that as soon as the defendant put lock on the garage, he had informed the police station and the general diary had been lodged. Such contention of the plaintiff is supported by documents. The plaintiff had also filed an application under Section 144(2) of the Criminal Procedure Code being the M.P. Case No.1664 of 2011 and an interim order was granted. All such facts lead to suggest that plaintiff has taken such steps as are expected in case of creating disturbance over the peaceful possession of the plaintiff in respect of the garage in suit.
(3.) THE plaintiff has contended that the defendant is creating obstruction in the enjoyment of the garage in suit and as such, he has prayed for temporary injunction against the defendant restraining him from creating any obstruction and interference in the peaceful enjoyment of the suit property till disposal of the suit. Since, the delivery of possession in favour of the plaintiff is an admitted fact, the defendant is required to show that he got possession back from the plaintiff but I find that the plaintiff has failed to produce any document in support of his contention that he had got the possession of the garage in suit. So, unless and until such fact is proved, it shall be presumed that the plaintiff has shown prima facie case to go for trial. THE plaintiff has shown urgency in passing the interim order and if the order of injunction, as prayed for, is not granted and if the defendant/opposite party hands over the possession to any third party, the plaintiff will certainly suffer irreparable loss. On the other hand, the defendant has nothing to loose, he would get rent so long as the possession of the property remained with the plaintiff. Accordingly, the balance of convenience in granting injunction is in favour of the plaintiff. So far as the payment of rent is concerned, the plaintiff has contended that she was a neighbour of the defendant and there was a good relationship and as such, no rent receipt was granted but everything was recorded in the diary of the plaintiff. In support of the plaint case, the plaintiff has annexed a number of documents in support of the application for injunction as mentioned in Paragraph No.20 of the application for temporary injunction. Therefore, from the application for temporary injunction supported by affidavit and annexures, I am of the view that the Courts below have failed to address the issue properly. If no rent is paid, the landlord was bound to take appropriate steps and in the instant case, I do not find that any such step for recovery of possession or realization of rent has been taken by the defendant. However, since the plaintiff has admitted that the defendant had already put a lock on the garage and he (plaintiff) is not in possession of the same. For such reason, I am of the view that, for the time being, the defendant should be restrained from disposing, transferring or alienating the garage in suit in any way in favour of the third party. Such order could well be passed in exercising the jurisdiction of superintendence in the matter for temporary injunction.;