Bhaskar Bhattacharya, J. - (1.) This first miscellaneous appeal is at the instance of the defendants in a suit for declaration and permanent injunction and is directed against order No. 18 Dated 13th January, 2005 passed by the learned judge, 5th Bench, City Civil Court at Calcutta in Title suit No. 1273 of 2004 there by plaintiffs-respondent under order 39, rules 1 and 2 of the Code and making the previous ad interim order of injunction dated 17th September, 2004 absolute till the disposal of the suit.
(2.) The respondents filed the aforesaid suit claiming the following relief:- (a) "Declaration that the plaintiffs being the Lessee of the suit property (as fully described in the 1st Schedule hereunder written) has got unfettered right of use and enjoyment of the common passage (as fully described in the 2nd Schedule hereunder written) for the purpose of uninterrupted ingress or egress both by foot and through cars and also for parking its cars and/or beneficial enjoyment therein as per the lease-deed dated 22.6.1982 and/or required for enjoyment of the suit property (as described in the 1st Schedule hereunder written). (b) Permanent injunction restraining the defendants No. 1 their men agents and/or servants and/or each one of them from creating any obstruction in any manner whatsoever to the ingress and ingress of the plaintiffs through the said common passage (as fully described in the 2nd Schedule hereunder written) both by foot and by cars and also from parking cars therein. (c) Permanent injunction restraining the defendants their men and agents and/or servants and/or one each of them from using the said common passage (as fully described in the 2nd Schedule hereunder written) for commercial purpose and/or above room (open air) and/or changing the mode of user thereof other than as common passage for both the plaintiffs and the defendants No. 1 herein etc." According to the plaintiffs, they are lessee in respect of the extreme rear portion of premises No. 9-C, Lord Sinha Road, by virtue of a registered deed of lease dated 22nd June, 1982 for 51 years with right of renewal of the term for another 51 years. The plaintiffs claim that the said lease-deed conferred upon them the right of user of a common passage not only for the purpose of ingress and egress but also for exercising "all rights, easements and facilities" for the beneficial use and enjoyment of the common passage as delineated in the map annexed to the lease-deed. According to the plaintiffs, by dint of the aforesaid Clause of the lease-deed, the plaintiffs have also acquired the right to park their cars on the common passage.
(3.) The further case of the plaintiffs was that after the transfer of the lessor's interest in favour of the present defendants, they are using the front portion of the common passage for the purpose of showroom thereby creating obstruction in the ingress and egress of the plaintiffs. The plaintiffs, therefore, prayed for injunction restraining the defendants, their men and agents from using the common passage as described in the schedule of the plaint for commercial purpose or for showroom and/or changing the mode of user thereof other than common passage for both the plaintiffs and the defendants. The plaintiffs further prayed for injunction restraining the defendants from creating any obstruction in any manner in exercising their right of the is and egress through the common passage both by foot and by car and also forum, parking the cars of the plaintiffs thereon.;