PRANAB KR SARKAR Vs. BASANTI RAY

JUDGEMENT

(1.) THE petitioner filed title Suit No. 118 of 1982 in the 2nd Court of the learned Munsif at Sealdah, 24-Parganas against the defendant/opposite party inter alia, for eviction and recovery of suit premises on revocation of licence, mesne profits and damages. The defendant/opposite party contested the said suit by filing the written statement denying and disputing the case of the petitioner as made in the plaint and claiming a tenancy right in the suit premises. The defendant/opposite party also filed an application under Order xxxix Rules 1 and 2 read with Section 151 of the Code of Civil procedure inter-alia, praying for a temporary injunction and also for a Mandatory order directing the plaintiff/petitioner to restore the bath and privy on the 1st floor of the suit premises to its original condition which was opposed by the plaintiff/petitioner by filing a written objection. The learned Munsif by his order No. 57 dated 9. 7. 1985, however, allowed the said application of the opposite party. Against the said order of the learned Munsif the plaintiff/petitioner preferred an appeal being Misc. Appeal No. 798 of 1985 before the learned District Judge at Alipore. In the case a learned Pleader Commissioner was appointed for local inspection who filed his report on 13. 12. 1982 and the learned District Judge, by his order No. 2 dated 10. 1. 1986 dismissed the petitioner's said appeal relying upon the learned Commissioner's report. Against the said order of the lower appellate court the petitioner has moved this Court in revision and obtained the present Civil Order No. 982 of 1986.

(2.) MR. Sadananda Ganguly, learned Advocate appearing on behalf of the petitioner has contended before me that from the learned Pleader Commissioner's report it was clear that the existing condition of the bath and privy on the 1st floor of the suit premises was such that it was incapable of being used by any person and nothing appeared from the said Commissioner's [report that the petitioner was in any way responsible for the existing, condition of the said bath and privy. Mr. Ganguly also referred to the petitioner's objection to the injunction application filed by the opposite party wherein the petitioner categorically stated inter alia, that there was no bath and privy on the 1st. floor of the suit premises and the bath and privy on the ground floor thereof were being used by the tenants of the scud premises including the opposite party.

(3.) MR. Mukul Prokash Banerjee, learned Advocate appearing on behalf of the opposite party, however, has contended that from ' the commissioner's report it clearly appears that there was a bath and privy on the 1st floor of the suit premises which was being used by the opposite part) previously and it should be fairly presumed that the plaintiff/petitioner was responsible for its dilapidated and/or damaged condition and as such the courts below rightly held in favour of the opposite party in directing the petitioner to restore the condition of the bath and privy to its original form. Mr. , Banerjee also relied upon the decision in Indian Cable Co. Lyd. v. Sm. Sumitra Chakraborty reported in AIR 1985 Calcutta 248 : 1985 (1) Calcutta High Court notes 428 in support of his contention that in exceptional cases court even can grant temporary mandatory order to restore the anterior to the suit where one party is found to have changed the status qou anticipating the suit and forestalling any order that may be passed therein and the present case actually is one of such exceptional cases. Mr. Banerjee also contended that since the application for mandatory injunction was really under Section 151 of the Code of Civil Procedure as the defendant in a suit could not take recourse to the provisions of Order XXXIX Rules I and 2 of the Code, the order passed by the learned Munsif was not an appealable one and as such the appeal filed by the petitioner was misconceived. He should have came up straight way to this Hon'ble Court in revision against the order of the learned munsif and that having not done, the present application in revision under Section 1 15 of the said Code is not maintainable.