RATHINDRA NATH BOSE Vs. JYOTI BIKASH GHOSH

JUDGEMENT

(1.) This Rule has been obtained against the order passed on appeal by the Additional District Judge, 1st Court, Alipore, dissolving the injunction granted by the trial court. The facts in short are as follows :

(2.) Opposite parties Nos. 1 and 2, the landlords who purchased the suit premises in 1966, instituted Title Suit No. 137 of 1968 against opposite parties Nos. 7 and 8 for recovery of possession of premises No. 7-A, Nafar Kundu Road, Calcutta, P. S. Bhowanipore, which, it was alleged, the said opposite parties held as monthly tenants. The ground for eviction was the plaintiffs' reasonable requirement of the suit premises for own use and occupation. The suit was decreed on February 14, 1969. The cousins of the defendants filed Title Suit No. 73 of 1969 on February 26, 1969 for a declaration that they and the opposite parties Nos. 7 and 8 were joint tenants of the suit premises and also for permanent injunction restraining the landlords from proceeding with execution of the decree for possession. They also filed a petition for ad interim injunction, which was dismissed and was affirmed on appeal. The order was challenged by the said plaintiffs of T. S. No. 73 of 1969 in revision in C. R. 3152 of 1969. This Rule was discharged by this Court on January 21, 1970 with direction that the suit should be heard within three months and the execution of the decree was allowed after May 7, 1970.

(3.) On July 20, 1971 Title Suit No. 73 of 1969 was dismissed for default. On August 17. 1971 an application for restoration of the suit under Order 9, Rule 9 of the Code of Civil Procedure was filed registered as Misc. Case No. 78 of 1971. The plaintiffs thereafter filed an application under Section 151 in the said proceeding for injunction restraining the decree-holder landlords from executing the decree and this application was dismissed on August 28, 1972. Thereafter, on August 30, 1972 the plaintiffs filed a petition under Section 94 (c) and (e) read with Section 151 of the Code before the trial court for an injunction restraining the landlords from executing the decree and an ad interim injunction was granted thereon. The application, treated as an application under Section 94 (c) and (e) of the Code was thereafter allowed on contest by order dated February 7, 1973 and the landlords were restrained by an injunction from proceeding with their Title Execution Case No. 59 of 1972 in execution of the decree obtained by them as aforesaid till the disposal of the application under Order 9, Rule 9 registered as Misc. Case No. 78 of 1971. The landlords preferred an appeal against the said decision and the appellate court held that the learned Munsif is to be deemed to have exercised jurisdiction under Order 39 while passing the order under Section 94 (c) of the Code and the appeal before him as such was maintainable under provisions of Order 43, Rule 1, Clause (r). On merits it was held that the plaintiffs failed to make out a prima facie case and mere joint possession, if true, would not show that there was joint tenancy of the premises. The Court further held that the balance of convenience would be against the landlords if the injunction was sustained as they instituted the suit for recovery of possession for their own use and occupation in 1967, while the plaintiffs were not actually residing at the suit premises. The appeal was accordingly allowed and the injunction granted by the trial court was vacated. The petitioner, who is one of the plaintiffs, in Title Suit No. 73 of 1969, moved this Court against this appellate order and obtained the present Rule.