- (1.) THIS isan application by the defendant for revision of an order dated 14. 2. 1983 passed by the learned Munsif Second Court, alipore granting the plaintiff permission to get a new electric meter in the suit premises at his own costs and at his own risk and responsibility.
(2.) THE facts and circumstances out of which the present application has arisen, may be briefly stated. The plaintiff filed Title Suit No. 329 of 1982 on 5. 8. 1982 on the allegations that he was a tenant under the defendant in premises No. 2, chetla Hat Road in respect of one room, kitchen, bath, privy at a rental of Rs. 45-per month payable according to the English calendar month; that he was getting supply of electricity by mutual arrangement with a co-tenant named Sri lakshmi Sen in the same building on payment of electric charges with the approval of the defendant and that the defendant was threatening disconnection of the aforesaid supply of electricity and also water supply to the plaintiff. The plaintiff in the plaint has prayed for a declaration that he is a tenant in respect of the aforesaid suit premises and that the defendant has no right to interfere with the supply of electricity and water to the plaintiff and for a permanent injunction restraining the defendant, from interfering with the supply of electricity and water to the plaintiff during the continuance of his tenancy and also any other relief or reliefs to which the plaintiff is entitled in law and equity. On the same day, the plaintiff applied for temporary injunction under Order 39 Rules 1 and 2, read with section 151 of the Code of Civil Procedure praying for temporary injunction restraining the defendant from obstructing the supply of electricity and water to the plaintiff's tenanted the suit building. The learned passed an exparte order directing the parties to maintain status quo in respect of supply of electricity and water to the plaintiff's tenanted portion. . Thereafter on 11. 8. 1982 the defendant appeared and filed an affidavit stating that he was aware of the order for maintaining status quo and that Lakshmi Sen the co-tenant had surrendered his tenancy to the defendant. The application for temporary injunction was disposed of by order no. 16 dated 15. 2. 1983 and the learned Munsif rejected the application as it was not-pressed. In the meantime, the plaintiff had filed an application under section 151 of the Code on 6. 9. 1982 in which it was alleged that after the passing of the order for maintaining status quo the defendant disconnected the supply of electricity to the plaintiff's portion and that the plaintiff is entitled to supply of electricity as an amenity annexed to his tenancy. The plaintiff further pleaded that if he was not given permission to get electricity by having a new meter in his name, he would suffer untold inconvenience. On such pleading, the plaintiff prayed for permission to get new electric meter, at his tenanted premises from the calcutta Electric Supply Corporation at his own cost. The learned Munsif after hearing both parties has found that there is no denying the fact that the plaintiff is entitled to have the connection of electricity in the premises in suit and in view of the essential nature of the amenity of supply of electricity the prayer of the plaintiff should be allowed. In that view, he has granted the permission to the plaintiff to get new electric meter in the suit premises at his own costs and risk and responsibility,
(3.) IN challenging the aforesaid order of the learned Munsif, it has been sub-mission behalf of the defendant petitioner that the learned Muhsif has committed an error of jurisdiction in passing the impugned order on several grounds. Firstly, it is contended that there is want of jurisdiction of the learned Munsif. In view of the decision of the learned Judge N. G. Chaudhuri, J. in Gadadhar Das v. Santosh Mukherjee, 87 CWN 1043 that when no suit for eviction against the tenant was pending, he as plaintiff had no choice of forum and could apply for restoration of electricity strictly in terms of the West Bengal Premises Tenancy Act before the Rent Controller only. The learned Judge has observed that coming to civil court as plaintiff he cannot be allowed to contend that "the Rent Controller and civil court have concurrent power". In the reported case, the plaintiff filed a suit against the landlord for a declaration and permanent injunction, one of the prayers in which was restoration of supply of electricity to the suit premises and thereafter he applied for temporary mandatory injunction under Order 39 Rules 1 and 2 of the Code of Civil Procedure praying for restoration of supply of electricity to the suit premises. The learned judge distinguished the earlier decisions of this Court in Loken Bose v. Asima dey 81 CWN 943, Bajcul Rani v. Nanibala, 86 CWN 946 and Suresh Kumar vs. Mahadev Prosad, AIR 1982 Calcutta 395, as the common feature of all the three cases aforesaid is that temporary injunction was granted in favour of the tenants in suits for eviction brought against them by the landlords. The learned judge, N. G. Chaudhuri J. further held that the grant of. prayer of the plaintiff amounted to prejuding the suit and could amount to failure of justice. It is further submitted on behalf of the petitioner that the prayer in the application under section 151 of the Code by the plaintiff in the instant case is beyond the scope of the prayers in the plaint in which permanent injunction has been sought for to restrain the defendant from interfering with the supply of electricity which the plaintiff was getting from the co-tenant lakshmi Sen by mutual arrangement and which was not permissible in law, and the plaintiff has made averments in the plaint of threatened interference with such supply of electricity as foundation of such prayer without any prayer for declaration of his right to get electricity as a tenant in the suit premises from the Calcutta Electric Supply corporation.;