Dibyendu Bhusan Dutta, J. - (1.) The present revisional application is directed against an order of the First Appellate Court dismissing a Misc. appeal which was preferred against an order of the Trial Court in a suit granting an ex parte ad interim injunction without prior notice to the defendant. The suit was for a declaration and permanent injunction. By the said order of injunction, the trial court directed both parties to maintain status quo as on 14.7.97 in respect of the suit property until further orders with a direction upon the plaintiff to comply with the legal requirements of the Order XXXIX Rule 3(a), (b) of the CPC by 15.7.97 and also with a direction for vacation of the order of status quo in the event of the plaintiffs default to comply with the said requirements.
(2.) The suit property consists of the land and the structure comprised in holding No. 34/1, Banbehari Bose Road; P.S. - Ramkrishnapur; Distt. Howrah. The plaint case is that a company granted a lease in favour of French Motor Car Company in respect of the portion of the said premises measuring 44 sq.ft. equivalent to 1 bigha 14 chittacks or thereabout for a period of 10 years commencing from 1 August, 1937 at a monthly rent of Rs 350/- by a registered indenture dated 24.3.1938. After the expiry of the said lease, the French Motor Company continued to be in the occupation of the demised portion of the suit premises as a monthly tenant under the said Company at an increased rent of Rs. 400/- per month. The landlord company by a registered conveyance dated 3.2.1959 sold its right, title and interest in the suit premises to the plaintiff for valuable consideration. The French Motor Car Company acknowledged the plaintiff as its landlord in respect of the suit premises and continued to pay rent. But since January, 1971, the said tenant company has not paid any rent and the arrear for the period from January, 1971, to September 1981 amounted to Rs. 51,600/-. The French Motor Car Company stopped its operation within the suit premises since long and, without previous consent of the plaintiff, wrongfully transferred and/or assigned and/or sublet the said demised portion of the premises to the defendant No. 1. The defendant No. 1 started making construction by addition and alteration within the suit premises on 7.5.1997 without the consent of the plaintiff or without any plan sanctioned by the Municipal Corporation, after demolishing the old structure. The plaintiff resisted as a result of which the defendant No. 1 stopped the construction work threatening to make construction by any means. On 12.5.97, the defendant No. 1 again started making construction by way of addition and alteration within the suit premises illegally and despite resistence by the plaintiff, did not pay any heed. The defendant No. 1 has no legal status to remain in the suit property nor any right to make any construction and/or repairing works in relation to the suit property. In the Misc. appeal preferred against the ex parte order of ad interim injunction, the defendant No. 1 appellant alleged that he had been running a factory at the suit premises since April, 1969 after obtaining a direct tenancy from the plaintiff-respondent and that he tried to effect repairs of the suit structure which had become damaged.
(3.) The lower Appellate Court relied on the observations of a Division Bench of this court reported in 91 CWN 1092 (Muktakashi v. Haripada ). The relevant observations are to the effect that when the defendant has not yet filed his show cause against the plaintiffs application for injunction, statements made in the application will have to be accepted as true. The lower Appellate Court proceeded on the assumption that the defendant-appellant was yet to file his show cause against the petition for temporary injunction and found no reason to interfere with the order of injunction passed by the Trial Court. The first Appellate Court, however, took into account the defendant No. 1 s case of tenancy under the plaintiff and came to a finding that there is a prima facie case in favour of the plaintiff. The balance of convenience and inconvenience also lay, according to the Appellate Court in favour of the plaintiff respondent at that stage because of the fact that if the nature and character of the suit property be changed, it would be difficult for the plaintiff to prove the real extent of the suit property which is in occupation of the defendant No. 1. The Appellate Court also held that the plaintiff would suffer irreparable loss and injury if the order of status quo be vacated. The Appellate Court dismissed the appeal on a finding that there is no illegality or irregularity in passing of the order of injunction by the Trial Court. While dismissing the appeal, the Appellate Court directed the Trial Court to dispose of the injunction petition as expeditiously as possible without, however, being influenced by any observation made by it in its judgment. It is this order of the Appellate Court which forms the subject matter of the present revision.;