BIDULATA DAS Vs. BRAJA BEHARI PALIT

JUDGEMENT

(1.) This revision under S. 115 of the C.P.C. 1908 ('the Code', for short) is directed against the order of the learned District Judge, Cuttack confirming an order of the learned Subordinate Judge, First Court, Cuttack under O. 39, Rr. 1 and 2 of the Code refused to grant temporary injunction.

(2.) Late Brundaban Palit, the father of respondent No. 1 was originally the owner of the suit land measuring Ac. 8. 12 decimal with a house standing thereon which forms part of current settlement plot No. H/54 measuring an area of Ac. O. 106 decimals under Khata No. 86 of mouza Baharnal in the town of Cuttack and on his death in 1969, the opposite parties succeeded to the same. The husband of the petitioner, namely, Bhagirath Das took the suit property on rent sometime in 1954 and during the period of his occupation H.R.C. Case No. 79 of 1984 was filed by the landlord (opposite party No. 1) for his eviction and no contest having been raised the proceeding was decided ex parte on 6-7-1985. Thereafter, the said tenant filed an application under O. 9, R. 13 of the Code which was dismissed on contest and then he filed H.R.C. Appeal No. 35 of 1985 which also met the same fate. The opposite party No. 1 started execution case No. 24 of 1987 in the court of Murisif, 1st Court, Cuttack for recovery of the suit property and in that proceeding the tenant judgement debtor filed an application u/s. 47 of the Code impugning the executability of the decree and allowed the same to go by default. Thereafter, he filed misc. case No. 36 of 1989 u/s. 151 of the Code for restoration of the said misc. case and allowed the same also to go by default. Again, on 27-11-1989 the tenant judgement debtor filed an application u/s. 47 of the Code taking the plea of a pre-decree agreement between the father of the decree-holder and himself regarding sale of the disputed property, but the same was dismissed on contest. Against such decision, the tenant judgement debtor approached this Court in Civil Revision No. 1975 of 1989, but the same was dismissed at the stage of admission with direction to the tenant judgement debtor to vacate the disputed property by 28-1-1990, as prayed for on his behalf. Such direction of this Court having not been complied with a proceeding in contempt was started against him in original criminal misc. case No. 17 of 1990 in which he was committed to civil imprisonment for one month. In all the above proceedings, the tenant (husband of the petitioner) had furnished his address as Bhasakosh lane, Cuttack town where the present petitioner resides. All these facts are not disputed by either of the parties.

(3.) The petitioner, as plaintiff, instituted title Suit No. 112 of 1990 in the court of the Subordinate Judge, First Court, Cuttack for declaration of title and confirmation of possession in respect of the suit property or in the alternative for recovery of possession in the event of her dispossession during pendency of the suit and also for permanent injunction stating that she was in possession of the suit property as owner since 27-6-1969 on the basis of a sale transaction by paying the full consideration amount to the father of the present opposite party No. 1 and though there was no formal sale deed she had perfected her title by adverse possession. It was also pleaded that her husband was staying at some other place since 1975 with another woman after deserting her and that he colluded with the landlord to get the eviction order passed against him with a view to evicting her. Along with the plaint, the petitioner filed an application under O. 39, Rr. 1 and 2 of the Code for issue of a temporary injunction restraining the opposite parties from interfering with her possession and enjoyment of the suit property either is pursuance of the order passed in the rent control proceeding or in any manner whatsoever. The opposite parties, as defendants in that suit, without filing any written statement seriously objected to the passing of any injunction order. The learned Subordinate Judge, First Court, Cuttack, by order dt. 16-5-1992, dismissed the application holding that in view of the bar contained in S. 41(b) of the Specific Relief Act, 1963 (for short, 'the Act') no injunction can be granted inasmuch as it would result in staying of the execution case arising out of the order passed by the learned Rent Controller pending before the learned Munsif who is not sub-ordinate to him. This order was challenged in Misc. Appeal No. 51 of 1992 which was also dismissed. Being aggrieved by such order the present revision has been filed.