KARNANI PROPERTIES LTD. Vs. KAILASH PRASAD JHUNJHUNWALA

JUDGEMENT

(1.) The Court : Affidavit-in-opposition and reply filed today in Court be taken on record.

(2.) This application has been taken out by the defendants in a suit for injunction against them praying that issue no.7, which was settled by order dated 13th January, 2017, is unnecessary and beyond the scope of the pleadings made by the plaintiff.

(3.) Mr. Mitra, learned Senior Counsel appearing for the defendants, has drawn attention of this Court to issue no.7 namely, "Whether the defendants are lawful and bonafide tenant entitled to any protection under the Tenancy Act ". Mr. Mitra has drawn attention of this Court to the entire averments in the plaint. He submits that the suit is one praying for a decree for perpetual injunction against the defendants. According to Mr. Mitra, although in paragraph 2 of the plaint it has been claimed that the defendant was a monthly tenant in respect of a showroom in the ground floor of Premises No.25B, Park Street, Kolkata-16, occupying an area of about 4400 sq.ft., as mentioned in the Schedule of the plaint, prayer for perpetual injunction as made by the plaintiff, is not in respect of the property under the Schedule of the plaint but in respect of the compound where according to the plaintiff, the defendants are parking their cars beyond any authority given by the plaintiff. According to Mr. Mitra, therefore, in a suit for injunction there cannot be an issue to decide whether or not the defendants are lawful or bonafide tenant and/or entitled to any protection under the Tenancy Act. Mr. Mitra has also pointed out that the same issue is pending in another suit, being Ejectment Suit No.124 of 2010 pending before the Presidency Small Causes Court at Calcutta. Drawing attention to paragraph 10 of the said suit plaint, Mr. Mitra pointed out that issue of similar nature has been framed taken into consideration the said paragraph where right of the defendants is in dispute with regard to the continuance of the suit premises as a tenant. Therefore, in this suit since no averment and/or pleading has been made by the plaintiff with regard to the compound as to whether the said area was let out to the defendants as a tenant or not, the issue no.7 cannot exist and should not be allowed to exist.