Bhaskar Bhattacharya, J. - (1.) This first miscellaneous appeal is at the instance of defendant No.l in a suit for permanent injunction and is directed against Order No.16 dated 6th May, 2005 passed by the learned Judge 3rd Bench, City Civil Court at Calcutta in Title Suit No.471 of 2005 thereby disposing of an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure by directing the parties to maintain status quo in the matter of installation of a capsule lift in the suit property till the disposal of the suit.
(2.) The plaintiff-respondents, twelve in number, filed a suit in the City Civil Court at Calcutta being Title Suit No.471 of 2005 thereby praying for a decree for permanent injunction restraining the defendant No.l, its men, agents and subordinates from installing and/errecting any capsule lift and/or capsule elevator in any portion of 25A, Camac Street, Calcutta-700 016, which is known as Vardaan Market. The palintiffs further prayed for permanent injunction restraining the defendant No.2, namely, the Kolkata Municipal Corporation, its authorities, functionaries and officers from sanctioning, permitting and/or allowing installation and/or erection of capsule lift or capsule elevator in any portion of 25A, Camac Street.
(3.) The case made out by the plaintiffs in the said suit may be summed up thus: "(a) The basement, ground and first floors of the suit premises consist of shops whereas the second, third and fourth floors comprise offices. Plaintiff Nos.1 to 11 are all sub-lessees of different shop rooms in different portions of the said building being 25A, Camac Street, Kolkata and plaintiff No. 12, is the association formed by the shop and other unit holders of the market building. (b) By different indentures of sub-leases, each of plaintiff Nos.l to 11 were granted sub-lease of their respective unit and were also granted undivided proportionate share of common area and facilities mentioned in those indentures of sub-lease. Apart from other rights, each of the plaintiffs was specifically granted the right of ingress and egress to and from his concerned unit and such right of ingress and egress was also given to men, materials and utilities alike. Such a right was an integral part of the grant and was absolutely essential for smooth running and functioning of the plaintiffs' business. (c) As per terms of the indenture of sub-lease, the plaintiff No. 12, the association, duly assumed supervision and control of all the rights relating to common benefits, facilities, advantages, easement of its member units as contemplated in the indentures of sub-lease. (d) The defendant No.l for the last few years was trying to make construction of a capsule elevator/lift in the premises not only affecting the right of the plaintiff's but also the strength and stability of the building as a whole; however, the defendant No.l was not successful in constructing such lift due to resistance given by the shop owners and at the same time, the Corporation Authority rejected the prayer for sanction of such capsule lift. (e) Recently, on or about 19th March, 2005, some persons were found taking measurement of the common area adjacent to the building on the Western (front) side overlooking Camac Street and upon enquiry, the plaintiffs learnt that the said persons were neither personnel deputed by Joint Special Officers appointed by the High Court in connection with the pending litigations nor had they any connection with fire-fighting services. The plaintiffs came to learn that those persons were taking measurement for excavating the land in front of the building for the purpose of installation of capsule lift/elevator. Those persons further gave out that the representatives of defendant No.1 had already managed a section of the Officials of the Kolkata Municipal Corporation and those Officers permitted the defendant No.1 to go ahead with installation of the capsule lift with the assurance that the Corporation will regularise the same. (f) If the defendant No.1 is permitted to raise such capsule lift, the same will affect the existing right of the plaintiffs in the property and will also make the building unsafe." Hence, the suit.;