NANDALAL GHOSH Vs. ASHOKE KR BOSE

JUDGEMENT

(1.) This application is against the order dated June 12, 2006 passed by the learned Civil Judge (Senior Division), Second Court, Uluberia in Appeal No.274 of 2004. The defendant filed this application stating, inter alia, that the plaintiff/opposite party herein filed a suit being numbered as T.S. 348 of 2002 praying for a decree of declaration and injunction before the learned Civil Judge (Junior Division) at Howrah against the defendant. The petitioner inducted the mother of the opposite party as tenant in respect of the suit premises at a monthly rent of Rs.16/- per month payable according to English calendar month. The mother of the plaintiff died in 1973 and the tenancy right of the mother of the plaintiff devolved upon her heirs. Now, the plaintiff is in possession of the suit premises as tenant under the landlord on the same terms and conditions and he wanted to take electricity in his premises and at that time, the dispute cropped up between the two parties. The plaintiff/tenant filed a suit for declaration of his tenancy right and permanent injunction. In that suit, he filed an application for temporary injunction. He also moved for an interim order. Upon hearing the learned Advocate for the petitioner, the learned Trial Judge granted order of status quo upon both the parties. Being aggrieved, the defendant preferred a misc. appeal which was dismissal of on June 12, 2006 by the impugned order. Being aggrieved, the landlord/petitioner has come up with this application.

(2.) Upon hearing the learned Advocate for the petitioner and on perusal of the impugned order, I find that order of status quo has been granted in respect of all the properties mentioned in the schedule of the plaint. But, in fact, the premises under occupation of the plaintiff/landlord is to the extent of one room with kitchen, varandah and common privy. The courtyard though mentioned in the schedule of the plaint was not the tenanted premises of the opposite party. When the defendant/petitioner wanted to make construction, trouble started and so the plaintiff/tenant filed the suit and an order of status quo was granted by the learned Trial Judge ex parte. The plaintiff in describing the suit property has clearly mentioned that courtyard is within his tenancy right which is specifically denied by the landlord/petitioner. The plaintiff/tenant could not show any document that the courtyard is within the tenancy right. This being the position, I am of the view that order of status quo in respect of the tenanted portion save the courtyard should be maintained; otherwise the rightful owner of the same will be deprived of his right to enjoy the courtyard. This application is, therefore, allowed in the manner as indicated above.

(3.) It is, however, recorded that the above observation is made for the purpose of the disposal of the application. The learned Trial Judge shall deal with the suit according to merits without being influenced by my above findings in any manner. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.