S.N. Mallick, J. - (1.) This Revisional application under Sec. 115 of the Code of Civil Procedure has been preferred by the Plaintiff -Petitioner against the Order dated February 9, 1996 passed by the learned Additional District Judge, 2nd Court, Nadia in Misc. Appeal No. 86 of 1995 affirming the order of the learned Assistant District Judge, 2nd Court at Krishnagar, Nadia passed in Title suit No. 5 of 1995 dismissing the Plaintiff -Petitioners prayer for temporary injunction and allowing the Defendant -opposite party's prayer for temporary injunction in respect of the disputed property.
(2.) The facts of the case in short are as follows: The disputed property consists of a brickfield known as M/s. Ajanta Brick Manufacturing Company, in Mouza 54, Majherchar, P.S. Kalyani, District Nadia of an area of 14.94 acres comprising the brick -klin, office house, labour quarters etc. taken in lease by the Plaintiff -Petitioner from the defendant -opposite party No. 1 by registered deed dated July 18, 1990 for a period of five (5) years renewable at the option of the Petitioner for a same tenure and on the same terms and conditions with 5% increase of the present annual rent, provided necessary notice is given in writing to the lessor before six months of expiry of each term (vide clause Nos. 5 and 7 of Deed of Lease, Annexure A to the instant application). Under Clause 6 of the said Deed of Lease the tenant on the lessee, i.e. the present Petitioner on the final termination of lease unless renewed shall be entitled to remove such removable fixtures and assets and equipments as he might have put up. It is undisputed that no such notice in writing was given to the lessor by the present Petitioner for renewal of the lease within six months before the expiry of such lease as stipulated in the Deed of Lease but according to the Petitioner as alleged in the plaint she made a verbal request to the Defendant No. 1 on July 8, 1994 when the Defendant No. 1 visited the house of the Petitioner to receive rent under cheque No. OGM -582967 for Rs. 10,000 and he agreed to renew the lease on 5% increase rent. Again, on January 15, 1995 the Petitioner approached the Defendant No. 1 for such renewal and the latter agreed to renew the same. But ultimately the Defendant -opposite party No. 1 turned down such request and the Petitioner issued a letter dated April 10, 1995 under registered post requesting him to renew the lease for another term. It is also the case of the Petitioner that for the said purpose she sent a cheque of Rs. 10,500 to the Defendant No. 1 under No. 131094 dated July 12, 1995 drawn on Punjab National Bank, Halisahar branch by registered post with A/D dated July 12, 1995. As the Defendant No. 1 and his grandsons Defendant Nos. 2 and 3 were threatening the Plaintiff -Petitioner to dispossess her leasehold property. The aforesaid suit was filed in the trial Court for declaration that the Plaintiff is a tenant in the leasehold properties by holding over and for permanent injunction. After filing the suit the Plaintiff -Petitioner filed the application for temporary injunction restraining the Defendants from dispossessing her from the disputed brick -field and from causing any disturbance to her peaceful possession and running of the brick manufacturing business. The trial Court initially issued an interim order of injunction, but after hearing the application on merits together with the objection filed on behalf of the Defendants dismissed the Plaintiff's petition for temporary injunction by its order dated November 25, 1995. In the meantime the Defendant -opposite party also filed an application for temporary injunction against the present Petitioner in the trial Court which the trial Court allowed by the same order dated November 29, 1995 and restrained the Plaintiff and her agents from manufacturing bricks in the suit property and from lifting and/or recovery of any bricks or brickbats from there till the disposal of the suit. On appeal preferred by the present Petitioner, the learned Appeal Court dismissed the Misc. Appeal by the impugned order dated February 9, 1996 thereby affirming the order of the trial Court.
(3.) The trial Court while dismissing the Plaintiff's prayer for temporary injunction was satisfied that there was no renewal of the lease as per terms settled in the Deed of Lease and as such the trial court came to the conclusion: thus, the status of the Plaintiff as it appears to me prima facie a tenant by sufferance, i.e. a trespasser, who of course cannot get ad interim relief against the rightful owner for continuing the work. the learned trial court came to this conclusion while referring to clauses No. 5 and 7 of the Deed of Lease. The trial Court's finding on the balance of convenience and inconvenience was also against the Petitioner. As it appears from the trial Court's judgment a case of holding over as provided under Sec. 116 of the Transfer of Property Act was sought to be made out. But before the Appeal Court the case of holding over has not been pressed on behalf of the Petitioner Appellant (vide paragraph 3 page 9 of the certified copy of the impugned order). There stress was given on possession on the basis of renewal clause. The learned appeal court also after hearing both the parties and considering the materials on record and referring to the case laws as cited before him by the learned Advocates for both the parties concurred with the finding of the trial Court that the Plaintiff -Petitioner has failed to prove any prima facie case so as to entitle her to get an order of temporary injunction. The appeal Court came to a finding that the impugned lease was not renewed as the Plaintiff -Petitioner failed to prove prima facie that she had complied with the condition provided under Clause 5 of the lease deed for the purpose of such renewal. The learned Appeal Court was also of the view that for the purpose of renewal a fresh registered deed or document was required under Sec. 107 of the Transfer of Property Act which was also wanting. The Appeal Court also came to the conclusion that although the Petitioner is in possession of the disputed property there was no legal foundation of the same inasmuch as there was no renewal of the lease. It may also be recalled at this juncture that the case of holding over as alleged in the plaint was abandoned before the appeal Court while hearing the temporary injunction matter in the said Misc. appeal. Accordingly the appeal court was also of the view that the Plaintiff -Petitioner having no right title or interest in the suit property is not entitled to seek for any temporary injunction against the Defendant No. 1, the lessor who is the rightful owner.;