RADHA KISHAN JHUNJHUNWALA Vs. SHIB SHANKAR LODHA
HIGH COURT OF CALCUTTA
RADHA KISHAN JHUNJHUNWALA
SHIB SHANKAR LODHA
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Basudeva Panigrahi, J. -
(1.)The defendant No. 1 in Title Suit No. 1162/87 pending in the Court of the learned 6th Judge, City Civil Court at Calcutta has called in question the legality, validity and the propriety of the order dated 30th Sept., 1994 whereby and whereunder the learned Court below has directed the petitioner for restoration of the possession to the opposite party-plaintiff.
(2.)The brief scenario of the facts leading to this revisional application are as follows:
The opposite party No. 3, namely, M/s. Babulal Lodha a partnership firm was inducted as a lessee by the petitioner herein for a period of 21 years with effect from Ist Feb., 1967. By and under a registered Deed of lease dated 19th March, 1968. It is alleged that the partnership firm was constituted between the partners and one Babulal Lodha was one of the partners' thereof. The said Babulal Lodha was the father of the opposite party No.1 and the husband of the opposite party No.2. The said lease was granted in respect of the room being No. 36 on the first floor of the premises No. 207 Maharshi Debendra Road, Calcutta since the partnership firm namely the opposite party No.3 committed default in paying monthly rent on and from 16th Sept., 1982 the said lease was forfeited and/or because of breach of the terms and covenants. Accordingly, the petitioner has said to have sent a notice dated 25th Nov., 1983 on the opposite party No.3 for determination of the said lease. Thereupon, the petitioner filed a suit against the opposite party No.3 herein in the learned City Civil Court at Calcutta. In the said suit TS 798/84, the petitioner obtained a decree for recovery of possession of the said premises. The opposite party Nos. 1 and 2 seem to have filed an application in the said suit claiming to be the legal heirs of the said Babulal Lodha, under Or. I.R. 10 of the Code of Civil Procedure for being added as the party defendants. In the said suit, the opposite party No.2 has taken a specific stand that the defendant No. 2 of that suit was never a lessee in respect of the suit premises nor such firm was ever in existence. The said Babulal Lodha died on 23rd Sept., 1974 leaving behind the opposite party Nos. 1 and 2 as his heirs and legal representatives. They are the only tenants under the defendant No. 1 petitioner herein and the said tenancy is governed under the provision of West Bengal Act XII of 1956.
(3.)The learned Judge 6th Bench, City Civil Court at Calcutta had rejected their application on 3rd April, 1987. After the dismissal of the aforesaid application for being added as party, the opposite party Nos. 1 and 2 filed the present suit. In the said suit they have prayed there a decree for declaration that they are the tenants in respect of suit premises and the tenancy is governed under the provisions of the W.B.P.T. Act of 1956 and have further prayed for a decree of permanent injunction. In the aforementioned suit, the opposite party Nos. I and 2 filed an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure for ad-interim injunction against the petitioner as to why his men and agent be not restrained from proceeding with the Title Suit No. 798/84 pending in the City Civil Court at Calcutta. The learned 6th Bench, City Civil Court by the judgment and order dated 22nd Sept., 1993 was inclined to record an order of temporary injunction restraining the petitioner herein, his men and agent from interfering with peaceful possession of the plaintiffs over the said premises otherwise than in due process of law till the disposal of the suit.
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