Soumen Sen, J. - (1.) THIS is an application at the instance of the defendant No. 2 for dismissal of the suit.
(2.) THE plaintiff has filed this suit praying, inter alia, for the following reliefs: - "a) A decree of declaration that the plaintiff was and still is a tenant of different portions of the said premises being premises No. 16, Strand Road, Kolkata (also known as 2, Fairlie Place, Kolkata) comprising of ground floor, Mezzanine floor, 2nd Floor, 3rd Floor, 4th Floor and roof having 97711.45 Sq. Ft. as described in Schedule B to the plaint; b) A decree of declaration against both the defendants that the plaintiff is entitled to the peacefully use, enjoyment and occupation of the said tenanted portions without any interference and obstruction from the defendants and/or its servants, agents and assigns in any manner whatsoever; c) A decree for perpetual injunction restraining the defendants and each of them and/or their servants, agents and assigns from taking any step or further steps from demolishing and/or from interfering with any part of the tenanted portions of the said Premises thereby interfering with the plaintiff's right to peaceful use, enjoyment and occupation of the said premises; d) A decree for Mandatory Injunction, directing both the defendants and/or their servants, agents and assigns to carry out the necessary repairs forthwith of the tenanted premises including the ground floor, mezzanine floor, 2nd floor, 3rd floor and 4th floor and roof of the said premises so as to enable the plaintiff to get peaceful use, enjoyment and occupation of its tenanted portions comprised in the said Premises. e) Decree for restoration of and/or delivery of vacant and peaceful possession and/or occupation of all portions of the said demise made by the defendant No. 1 in favour of the plaintiff at the said premises and the plaintiff be put back into tenantable and habitable occupation of all portions of the said premises that were demised in the plaintiff's favour, and such decree be passed against both the defendants jointly, severally or in the alternative. f) A decree for total abatement of rent with effect from 7.11.1998 for not allowing the plaintiff to use the said tenanted portion described in the Schedule being Annexure - B to the plaint till its making habitable condition for normal and proper use of the plaintiff; g) A decree of declaration that the plaintiff is entitled to an amount of Rs. 57,76,800/ - (Rupees Fifty seven lacs seventy six thousand and eight hundred only) from the defendant No. 1 and decree if necessary for payment of the same together with interest thereon. h) A decree of declaration that an amount of Rs. 57,76,800/ - (Rupees fifty seven lacs seventy six thousand eight hundred only) is to be adjusted with future rent of the said premises @ Rs. 2,93,134/ - per month as rent for the said premises till full realization of the said due amount being Rs. 57,76,800/ - (Rupees Fifty seven lacs seventy six thousand eight hundred only); i) A decree for damages for Rs. 22 crores (Rupees Twenty two crores only) is claimed in paragraph 15 hereof, alternatively an inquiry be made into the loss and damage suffered by the plaintiff and decree be passed for the sum found due upon such inquiry together interest: j) Receiver; k) Injunction; l) Attachment; m) Costs; n) Such further or other reliefs." The said suit was instituted after obtaining leave under Order 2 Rule 2 of the Code of Civil Procedure. Prior to the institution of the suit, the plaintiff has filed a prior suit praying, inter alia, for the following reliefs: - "(a) Declaration that the plaintiff was and still is a tenant of different portions of the said premises being premises No. 16, Strand Road, Kolkata (also known as 2, Fairlie Place, Kolkata) comprising of ground floor, Mezzanine floor, 2nd Floor, 3rd Floor, 4th Floor and roof having 97711.45 Sq. Ft. as described in Schedule B to the plaint; (b) A decree for declaration that the plaintiff is entitled to peacefully use, enjoyment and occupation of the said tenanted portions without any interference and obstruction from the defendants and/or its servants, agents and assigns in any manner whatsoever; (c) A decree for perpetual injunction restraining the defendants from taking any step or further steps from demolishing and/or from interfering with any part of the tenanted portion of the said Premises thereby interfering with the plaintiff's right to peaceful use, enjoyment and occupation of the said premises; (d) A decree for Mandatory Injunction, directing the defendants and/or its servants, agents and assigns to carry out the necessary repairs forthwith of the tenanted premises including the ground floor, 2nd floor, 3rd floor and 4th floor of the said premises so as to enable the plaintiff to peaceful use, enjoyment and occupation of its tenanted portion comprised in the said Premises. (e) An order of injunction be passed directing the defendants and/or its agents, servants and assigns not to effect demolition of any portion of the said building including the mezzanine floor which remains unaffected by fire; (f) A decree for total abatement of rent w.e.f. 7.11.1998 for not allowing the plaintiff to use the said tenanted portion described in the Schedule being Annexure -A to the plaint till its making habitable condition for normal and proper use of the plaintiff; (g) A decree for a sum of Rs. 50,45,000/ - as mentioned in paragraph 23 of the plaint on account of repayment of the balance of the loan amount along with interest thereon at the rate of 18% per annum; (h) Decree for damage of Rs. 3.36 crores on account of loss and damages suffered by the plaintiff as stated in paragraph 24 of the plaint; (i) Alternatively an enquiry into account and damages suffered by the plaintiff and a decree for such sum as may be found due and payable; (j) Further interest as may be directed by the Court; (k) Receiver; (l) Injunction; (m) Attachment (n) Costs; (o) Such further or other reliefs."
(3.) THE reliefs in the two suits are substantially same save and except in the subsequent suit the plaintiff has prayed for recovery of possession. There are, however, cosmetic changes in the present plaint with regard to the quantification of damages and adjustment of future rent.;