- (1.) IN short, the facts of the case inter alia, are that the plaintiff-opposite party filed Title Suit No. 289/1991 in the Third Court of the learned Munsif at Sealdah against the defendant-petitioners, inter aha; for the declaration that the monthly maintenance charge/ contribution towards common expenses which have been imposed by the defendant-petitioners was illegal, arbitrary and contravened clause 20 of the West Bengal Apartment ownership Bye-laws, 1974; for a declaration that the notice dated 31st March, 1991 issued by the defendant-petitioners was illegal and void, and for permanent injunction restraining the defendant-petitioners from disturbing the plaintiff- opposite party's possession in the suil property and from realising the enhanced maintenance charges at the rate of Rs. 120/- per month and for further injunction restraining the defendant petitioners from interfering with the supply of water and /or other services in the suit property.
(2.) IN the said suit, the plaintiff-opposite party filed an application under order 39, Rules 1 and 2 of the Code of Civil procedure and obtained an interim order which was ultimately made absolute on 25th January, 1992. Against the said order of the learned Munsif, the petitioners preferred an appeal being misc. Appeal No. 58 of 1992 in the Court of the learned District judge, North 24-Parganas and the learned District Judge by his order NO. 5 dated 12th march, 1992 passed an order to the following effect: "order No. 5 dated 12-3-1992. Heard Id Advocates for both sides on the application filed by the appellant for stay of operation of the injunction order passed by Sri B. K. Chakraborty, Id Munsif, 3rd Court, Sealdah in Title Suit No. 289 of 1991 in order No. dated 25-1-92. On due consideration of the submissions of both sides, it is ordered without prejudice to the rights of the parties in the instant Appeal that the appellants will continue to pay the rate which was prevailing namely Rs. 60/- per month prior to this decision in the Annual General meeting held on 24-3-91 until further orders. The prayer for stay of the operation of the other portion of the order namely that the plaintiff appellants are restrained from interrupting the supply of water and other services including sweeping etc. is rejected at this stage. " The-plaintiff-opposite party also filed an application under Section 151 of the code of Civil procedure in the Trial Court praying for an order allowing the plaintiff-opposite party to contest as a candidate for Board managers of the defendant-petitioners' association which was to be held on 28th March, 1992 allowed the said application on contest with costs. The said order has been challenged in revision in this Hon'ble Court.
(3.) MR. Roy Chowdhury, learned Senior Counsel, appearing on behalf of the defendant -petitioners contends inter alia, that the application under Section 151 of the Code of Civil Procedure Med by the plaintiff-opposite party ought to have been rejected by the learned Munsif, inasmuch as, it referred to a cause of action which was quite distinct and separate from the cause of action as mentioned in the suit itself and unless by way of amendment that cause of action was introduced in the original plaint, the application under Section 151 of the Civil Procedure Code was not maintainable. According to Mr. Roy chowdhury, the impugned order therefore, was passed by the learned Munsif on an erroneous assumption of jurisdiction or in other words in excess of jurisdiction and the same cannot be sustained in law and is to be set aside.;