BISHNU PRIYA PHARMACY Vs. SUBHAS SADAN TRUST

JUDGEMENT

(1.) This revisional application is directed against an order no. 11 dated December 10, 2004 passed by the learned Civil Judge (Junior Division) 1st Court, Barasat in title suit no.314 of 2004 by which an injunction order as well as an order appointing the Advocate Commissioner for holding the local inspection are recalled.

(2.) Before dealing with the legal point which emerges in this revisional application, some brief facts are required to be narrated. The plaintiff/petitioner claims to be a tenant in respect of the shop room on the ground floor at holding no. 22, ward no.9 within the Barasat Municipality at a monthly rental of Rs. 65/-, which was subsequently enhanced to Rs. 150/-, payable according to the English calendar. It is alleged that the opposite party, being the landlord, is trying to oust the petitioner from the shop room by demolishing the entire structure standing on the said premises. On the basis of such allegation, the present suit being title suit no. 314 of 2004 is filed by the plaintiff/petitioner. The court passed ad interim order of injunction on an application for temporary injunction filed in the said suit. In the said suit, an application under Order 39 Rule 7 of the Code of Civil Procedure was also filed for appointment of an Advocate Commissioner to hold the inspection with regard to the nature of occupation of the petitioner which was also allowed.

(3.) Before the inspection could be held, it is alleged by the plaintiff/petitioner that the entire structure, a part whereof was held by the petitioner as tenant, is demolished by the Municipal Corporation. Thereafter, two applications under Section 151 of the Code were filed by the plaintiff/petitioner praying for (i) recalling an order by which an application under Order 39 Rule7 of the Code was allowed on the plea that the premises has already been demolished and (ii) restoration of possession as the plaintiff/petitioner has been dispossessed on demolition of the structure during the subsistence of an ad interim order of injunction. The Trial Court allowed the first application by which a prayer for recalling of an order allowing an application under Order 39 Rule 7 of the Court was passed but rejected the other application and consequently vacated the ad interim order due to the demolition of the structure at the instance of the Municipal Corporation. The petitioner has assailed such part of an order by which the application for restoration of possession was rejected in this revisional application.