MOOKERJEE, J. - (1.) M/s. Namdang Tea Co. Ltd. (the respondent No. 1 herein) claims to be a monthly tenant under Smt. Juthika Chowdhury the appellant No. 2, in respect of the ground floor flat at premises No. 11/1, Sunny Park, P. S. Ballygunj, Calcutta. On May 2, 1985 the said company moved before Hon'ble Mr. Justice Bhagabati Prasad Banerjee a writ application, inter alia, praying that the purported plan sanctioned by the Calcutta Municipal Corporation Authorities in regard to the construction of a building at Premises No. 11/1, Sunny Park be cancelled and/or quashed and also for commanding the Calcutta Municipal Corporation Authorities to withdraw or recall or rescind the said plan. Bhagabati Prasad Banerjee, J. directed the petitioner to serve the copies of the writ petition on the respondents and in the meantime granted an ex parte interim order in terms of prayer (e) of the writ petition recording that he was passing the said ex parte interim order after taking into consideration the judgment passed by Suhas Chandra Sen, J. in C.R. No. 15147(W) of 1981 dated April 23, 1982.
(2.) Being aggrieved by the said ex parte interim order of injunction, inter alia, restraining them from making any construction in Premises No. 11/1, Sunny Park, the appellants preferred the present appeal. Having heard the learned advocates for the parties including the Calcutta Municipal Corporation, we are of the view that the ex parte ad interim order granted by the learned single Judge ought to be vacated subject to the observations and directions mentioned hereinafter.
(3.) The respondent No. 1, Namdang Tea Co. Ltd., itself claims to be a monthly tenant of the ground floor flat and it is a disputed question of fact between the appellants and the said tenant as to whether the lawn measuring a little over 11 cottahs was included in the tenancy claimed by the respondent No. 1 or whether the respondent No.1 has any other kind of right over the lawn. The said dispute obviously cannot be adjudicated in a writ proceeding. Secondly, even before filing the writ petition, the respondent No. 1, Namdang Tea Co. Ltd., has instituted a civil suit against the appellants, inter alia, for declaration and injunction. The learned Munsif refused its prayer for ad interim injunction. We understand that the Miscellaneous Appeal preferred by the plaintiff in the said suit has been since dismissed by the Lower Appellate Court. The learned advocate for the respondent No. 1 stated before us that his client proposed to file a revisional application in this Court against the said dismissal of its miscellaneous appeal. The respondent No. 1 having failed to obtain from civil Court any order of temporary injunction to restrain the present appellants from making any construction upon the disputed lawn at Premises No. 11/1, Sunny Park has now filed the writ petition out of which it would not be a sound exercise of discretion to grant in favour of the respondent No. 1 ex parte ad interim injunction.;