BINDESWARI DUBEY Vs. LAKHU DUBEY

JUDGEMENT

(1.) This application is at the instance of the plaintiff and is directed against the order no.2 dated December 23, 2008 passed by the learned District Judge, Alipore in Misc. Appeal No.594 of 2008 thereby affirming the order no.85 dated November 18, 2008 passed by the learned Civil Judge (Junior Division), Fourth Court, Alipore in Title Suit No.78 of 1997.

(2.) The plaintiff instituted the suit for a decree of declaration that he is the tenant of the premises in suit, as described in the schedule of the plaint and also for a decree of permanent injunction and other reliefs. In that suit, he filed an application for temporary injunction. The defendant/opposite party is the brother of the plaintiff and he has been trying to dispossess the plaintiff and also to disturb him in the peaceful enjoyment of the premises in suit. He installed gas oven in the open space within the suit premises which adversely affects the health of the plaintiff and his children. So, he filed an application for temporary injunction restraining the defendant from using the unauthorized gas ovens. That prayer was rejected by the learned Civil Judge (Junior Division) on contests. Thereafter, a misc. appeal was preferred by the plaintiff. The plaintiff prayed for an ad interim order of injunction and it was rejected. Being aggrieved, the petitioner has come up with this application.

(3.) Upon hearing the learned Advocate for the parties and on consideration of the materials on record, I find that admittedly the suit premises was the tenanted property of the father of the plaintiff at 15, Kali Temple Road. Selling and making 'padas' for the prasad of Kalimata was a family business and the plaintiff is also actively involved in the said business. The plaintiff has been running his business inherited from his father. His contention is that in the absence of the plaintiff, the defendant installed gas ovens in the space within the suit premises and the emission of fumes adversely affects the health of the plaintiff and his children.