- (1.) THIS first miscellaneous-appeal is at the instance of a defendant in a suit for permanent injunction and is directed against the Order No. 9 dated 5th May, 2007 passed by the learned Trial Judge by which the said Court has allowed an application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure filed by the plaintiff-respondent thereby restraining the appellant from conducting any hearing in respect of Notice No. 01021400/ho/kmc and Notice no. 01021401/ho/kmc prior to the hearing of the earlier notice dated June 6, 2006 with a liberty given to the Corporation to pray for modification of the order after the conclusion of the hearing of the notice dated June 6, 2006.
(2.) BEING dissatisfied, the Kolkata Municipal Corporation has come up with the present first miscellaneous-appeal. The respondent herein filed a suit for permanent injunction in the Ninth bench, City Civil Court at Calcutta, being Title Suit No. 160 of 2007, thereby praying for permanent injunction restraining the appellant from giving any effect or further effect to the notice bearing No. 01021400/ho/kmc and the form bearing Serial No. A0753525 as also the notice bearing No. 01021401/ho/kmc and the form bearing Serial No. A0753526 both dated January 4, 2007 which would take effect from the second quarter of 2003-2004 and the fourth quarter of 2006-2007 respectively, with regard to the premises No. 3a Humayun Place, kolkata- 700 087.
(3.) THE case made out by the respondent may be summed up thus: (i) The respondent is the owner of premises No. 3a, Humayun Place and the building is used by the respondent for its business and the amount which the said building might be reasonably expected to fetch on being let out from year to year had not been changed since last ten years. (ii) The last assessment of the said premises was done on December 6, 2000 with effect from the second quarter of 1997-98, and the annual valuation had been fixed at Rs. 5,01,130/ -. In fact, the said valuation was intimated to the plaintiff by the Corporation by a notice issued under Section 188 (2) of the Calcutta Municipal Corporation Act and against the said order, the plaintiff had preferred an appeal to the municipal Assessment Tribunal under Section 189 of the Calcutta municipal Corporation Act which was pending. (iii) The plaintiff received a notice dated June 6, 2006 from the Kolkata municipal Corporation assessing the said premises at an annual valuation of Rs. 6,68,990/- with effect from the second quarter of 20032004. By the said notice, the Corporation informed the plaintiff that it had a right to submit a written objection against the said valuation and accordingly, fixed September 18, 2006 for hearing of the objection, if any, filed by the plaintiff. The said hearing was postponed from time to time and was fixed on 23rd April, 2007 for hearing of the plaintiff's objection. (iv) The plaintiff, in the meantime, was shocked and surprised to receive a notice dated January 4, 2007 bearing No. 01021400/ho/kmc and the form bearing serial No. A0753525 by which the plaintiff was intimated that the annual valuation of the said premises had been assessed at rs. 13,15,100/- with effect from second quarter of 2003-2004 and that the plaintiff was entitled to submit the written objection against the said valuation and January 29, 2007 was fixed for hearing of the objection, if any, filed by the plaintiff. (v) The plaintiff further received a notice dated January 4, 2007 bearing no. 01021401/ho/kmc and the form bearing serial No. A0753526 by which the plaintiff was informed by the respondent that the annual valuation of the said premises had been assessed at Rs. 36,94,460/ with effect from the fourth quarter of 2006-2007 and that it was entitled to submit written objection against the said valuation and January 29, 2007 was fixed for hearing of the objection, if any, by the plaintiff. (vi) According to the plaintiff, the defendant was not entitled to issue the aforesaid notice since two proceedings were pending for the period from the second quarter of 2003-2004 and such assessment was required by law to remain in force for a period of six years as provided in Section 179 (2) of the Calcutta Municipal Corporation Act. ;