Jyotirmay Bhattacharya, J.@mdashThis application under Article 227 of the Constitution of India is directed against an order dated 29th April, 2009 passed by the learned Additional District Judge, Barrackpore, in Misc. Appeal No. 29 of 2009 by which the petitioner''s prayer for ad-interim injunction during the pendency of the said appeal, was rejected by the learned Appeal Court. The plaintiff/appellant, who is the petitioner herein was aggrieved by the said order. Hence the plaintiff/appellant has come before this Court with this application under Article 227 of the Constitution of India.
2. Heard Mr. Banerjee, senior Learned Counsel, appearing for the petitioner and Mr. Das, learned senior Counsel, appearing for the opposite parties. Considered the materials on record including the order impugned. Let me now consider the merit of this revisional application in the facts of the instant case.
3. The plaintiff/petitioner filed a suit for declaration of their tenancy right in respect of the suit property and for permanent injunction for restraining the defendant/opposite party No. 1 from disturbing their possession in the suit property. The plaintiff claims that the predecessor-in-interest of the plaintiff, namely, Promoto Bhushan Ray was inducted as a tenant in respect of the suit property by the trustee of the Gita Bhawan Trust, sometime in the year of 1960. The said tenant started carrying on his business in the said premises by obtaining necessary license from the concerned authority. The plaintiff further claims that the said Promoto Nath Ray died on 5th November 1973 leaving his two daughters, namely, Gita Rani Chowdhury and Mira Rani Chowdhury who became the tenants-in-common in the suit premises by inheritance. The said two daughters of the original tenant paid rent at the enhanced rate of Rs. 75/- per month to their landlord upto December 2003. Such rent was collected by the authorized agent of the landlord, namely, the defendant No. 1 herein who used to receive such rent from the tenants by granting the rent receipts therefore. It was further stated therein that since January 2004, the landlord started refusing to accept the rent from the mother of the plaintiff on the pretext that since the co-tenant Gita Rani Chowdhury expressed her intention to discontinue the said tenancy, they would not accept the rent from the other co-tenant. As a matter of fact, due to non-cooperation of one of such tenants, namely Gita Rani Chowdhury, the ration shop business had to be discontinued therein. Subsequently Gita Rani Chowdhury died sometime in 2004 and the mother of the plaintiff namely, Mira Rani Das also died on 17th January, 2009. On the death of the petitioner''s mother the petitioner became the tenant in respect of the premises. Since the defendant started disturbing the possession of the plaintiffs in the suit property with the help of the local antisocial on and from 16th April, 2009, the instant suit was filed for declaration of their right of tenancy in the suit property and for injunction.
4. Immediately after filing of the said suit the plaintiff filed an application under Order 39 Rules 1 & 2 of the CPC inter alia praying for temporary injunction for restraining the defendant from disturbing their peaceful possession in the suit property till the disposal of the suit. Ad interim prayer claiming identical relief by way of injunction was also prayed for by the plaintiff in the said application.
5. In course of hearing of the said application at the ad interim stage, the plaintiff produced certain documents such as (i) rent receipt issued by the landlord in favour of Gita Rani Chowdhury and Mira Rani Das on 15th December, 2000, (ii) another rent receipt in the name of two those tenants issued by the landlord on 13th November, 2003, (iii) trade licence issued by Dum Dum Municipality on 18th August, 2004 and (iv) a letter of authority issued by the trustees of the Gita Bhawan Trust authorizing the defendant No. 1 to collect the rent from the defendant.
6. The learned Trial Judge, after considering the pleadings of the plaintiff as well as the documents as referred to above, held that the materials which were placed before the learned Trial Judge are not sufficient to grant ad interim injunction against the defendant without giving him an opportunity of hearing. Though the plaintiff''s prayer for ad interim injunction was rejected by the learned Trial Judge on 22nd April, 2009 but notice was directed to be issued upon the defendant for showing cause as to why the injunction should not be passed against them.
7. Being aggrieved by the said order the plaintiff/appellant preferred an appeal being Misc. Appeal No. 29 of 2009 before the learned Additional District Judge at Barackpore. The said appeal was admitted for hearing by the learned Appeal Court on 29thy April, 2009. However the learned Trial Court refused to grant ad interim order of injunction during the pendency of the said appeal by assigning identical reason, as was shown by the learned Trial Judge in the impugned order.
8. The propriety of the said order is under challenge in this application at the instance of the plaintiff/appellant herein. After entertaining this revisional application ad interim order was passed by this Court on 21st May, 2009 by which the parties were directed to maintain status quo unconditionally till 31st May, 2009 with a rider that if in the mean time the petitioner deposits a sum of Rs. 25,000/- by way of security in the learned Appeal Court, the interim order which was passed would continue till 30th July, 2009. The petitioners did not deposit any amount of money within the time which was given to them in the said order. Subsequently however the petitioner deposited the said amount within the extended time and the interim order which was passed therein was directed to be continued on such deposit being made.
9. An application for contempt being C.P.A.N. No. 718 of 2009 was also filed by the petitioner complaining violation of the interim order of injunction passed by this Court as aforesaid. It was alleged by the petitioner therein that the defendant had demolished the suit premises completely on 26th May, 2009 in violation of the said order of the injunction.
10. Subsequently on an application filed by the transferees of the suit property from the owners thereof, they were added as opposite party Nos. 2, 3 and 4 in this revisional application. While adding them as parties to this revisional application on 31st July, 2009, this Court made it clear that the interim order which was passed earlier will also bind the added parties.
11. In this back ground the main revisional application is taken up for hearing.
12. This Court is not unmindful about the scope of consideration of an application for ad interim injunction which is different from that of the scope of consideration of an application for temporary injunction. Though the basic tests for grant of interim injunction; be it at the ad interim stage or at the stage of temporary injunction hearing, are all the same but still then there are some remarkable differences in the scope of consideration between these two stages of hearing, as while considering an application for ad interim injunction, the Court has to restrict its consideration only to the pleadings of the plaintiff made out in the paint as well as in his application for injunction and the documents on which reliance is made by the plaintiff in support of his prayer for ad interim injunction, but while considering the application for temporary injunction the Court is required to consider not only the pleadings of the plaintiff and the documents filed by him but also the pleadings of the defendant and the documents if any filed by him. In fact, the said principle was laid down by the Division Bench of the Hon''ble High Court in the case of
13. Keeping in mind the aforesaid principles of law, this Court has carefully scrutinized the pleadings of the plaintiffs in the plaint as well as in their application for injunction and the documents on which they relied upon in support of their prayer for ad interim injunction and on such consideration this Court finds that at least a triable issue has been raised by the petitioner in the said application in support of their prayer for ad interim injunction, as the plaintiff has produced some materials before the Court to show induction of his maternal grandfather in the said premises by the original owner of the said premises as tenant thereof and thereafter by successive successions the plaintiffs have now inherited the said tenancy.
14. The tenancy right is a heritable right under the West Bengal Premises Tenancy Act, 1956 and as such, such right cannot be extinguished on the death of the original tenant. Tenancy right can be extinguished either by surrender of tenancy by the tenants or by eviction of the tenants by following the due process of law. Since the plaintiffs claim that the tenancy which they inherited from their predecessors, has not been extinguished by any of the modes recognised under law, they are still tenants in the suit premises and merely for non-payment of rent for certain period their tenancy right in the suit property cannot be extinguished.
15. Though it is no doubt true that the tenancy right of a premises tenant cannot be extinguished due to non-payment of rent without being followed by decree of eviction, but the fact remains that in the instant case the plaintiffs have not produced any document to show that they paid any rent for the said premises since January 2004, nor they placed any material before the court to show that they made any effort to pay rent since 2004.... Even no document showing their possession in the suit property since 2004 has been produced by the plaintiff. Admittedly the business which their predecessors used to carry on in the said tenancy has been stopped long ago. Thus though this Court finds that the plaintiffs have made out a prima facie case in support of their claim for tenancy right in the suit premises but their possession therein as on the date of filing of the suit is doubtful, as no material showing their possession therein as on the date of filing of the suit, has been produced.
16. Be that as it may, the plaintiff themselves have admitted in their application for contempt that the entire building has been demolished completely by 26th May, 2009. Thus admittedly the suit premises is not in existence as on today. It is true that even if the premises is demolished, the tenancy right of tenant does not evaporate automatically and such right will stand restored and/or revived whenever the building is reconstructed. Thus if the plaintiffs ultimately succeed in proving that they inherited their tenancy right in the suit premises and their tenancy right has not been extinguished otherwise, then their tenancy right will revive with the reconstruction of the new building therein.
17. In my view, the relief which was claimed by the plaintiff in the instant application for injunction cannot now be granted in the changed scenario inasmuch as the plaintiff admitted in their contempt petition that the said building was completely demolished on 26th May, 2009.
18. Under this circumstances this Court holds that the order of status quo which was passed earlier in this application practically has become redundant as the plaintiffs are now not in actual possession though they may have constructive possession therein and their actual possession may be restored ultimately after reconstruction of the said building provided they can establish their tenancy right in the suit premises.
19. Accordingly the said interim order stands vacated. The learned Appeal Court is thus directed to consider the said appeal on its own merit as early as possible by impleading the added opposite parties herein as respondents therein, if the added opposite parties apply for their addition in the said appeal.
20. It is also made clear that the learned Appeal Court is absolutely free to decide the said appeal on its own merit without being influenced of any of the observations made hereinabove. The disbursement of the costs amount deposited by the petitioner is left to the discretion of the learned Appeal Court, which will pass necessary order in this regard at the time of disposal of the appeal.
21. The revisional application is thus disposed of.
Re: CAN No. 981 of 2010
22. In view of the disposal of this revisional application in the manner as aforesaid, no further order need be passed on this application for vacating the interim order being CAN No. 981 of 2010 filed by the added opposite parties herein. The said application is thus deemed to be disposed of accordingly.
Re: CPAN No. 718 of 2009
23. Let the contempt application being CPAN No. 718 of 2009 filed by the petitioner herein be placed in the list for its consideration two weeks hence under the heading contempt application.
24. Urgent xerox certified copy of this order, if applied for, be given to the parties as expeditiously as possible.
25. LATER
26. On the prayer of Mr. Chatterjee learned Advocate for the petitioner, let a plain copy of this order be given to the petitioner on usual undertaking.
