( 1 ) THIS is an appeal by the plaintiff of Title Suit No. 10/80 now pending in the 4th Bench of the City Civil Court at Calcutta and is directed against an order dated September 9, 1980 refusing the plaintiff appellant's prayer for temporary injunction under Order 39 Rules 1 and 2 of the Civil Procedure Code.

( 2 ) THE plaintiff appellant (hereinafter called the plaintiff) instituted the suit for a declaration that the plaintiff is a tenant in respect of the suit premises which comprises one room on the ground floor of 49 Rafi Ahmed Qidwai Road and for further declaration that an order passed by the learned Executive Magistrate dated December 21, 1979 arising out of a proceeding under S. 144 Cr. P. C. is not binding on her. Claim includes a prayer for permanent injunction restraining defendant No. 1 from disturbing the peaceful possession of the plaintiff. The case of the plaintiff in brief is as follows:

( 3 ) THE plaintiff is tenant under the defendant No. 2 in respect of the suit room and has been in occupation thereof for more than 24 years. On March 29, 1978 the defendant No. 1 insisted for letting out the suit premises to him but the plaintiff refused to do so and she had not the right either to sublet the premises in view of the legal prohibition under S. 14 of the West Bengal Premises Tenancy Act. The plaintiff in fact holds 2 tenancies in the same premises, the other carrying a rental of Rs. 30/- per month which is now in the occupation of the plaintiff's son. In view of the illegal demand of defendant No. 1 the plaintiff filed an application under S. 144 of the Cr. P. C. and the defendant No. 1 likewise filed another application under the aforesaid section alleging that he was a sub-tenant in occupation but that he had been ousted by the plaintiff on March 31, 1978. The learned Executive Magistrate started a proceeding under S. 145 Cr. P. C. and by order dated December 21, 1979 declared that the defendant No. 1 shall be deemed to be in actual possession of the suit room and further directed the plaintiff to deliver possession to defendant No. 1 within 15 days from the date of the order. Hence the suit for the reliefs already mentioned.

( 4 ) IN this suit the plaintiff filed an application under Order 39 rules 1 and 2 of the Civil Procedure Code on the self-same allegations and asked for temporary injunction restraining defendant No. 1from disturbing the peaceful possession of the plaintiff and also prayed for an interim order.

( 5 ) AS it appears from the record that initially the learned Judge passed an order directing the parties to maintain status quo. By the impugned order however the prayer for temporary injunction was refused and the order of status quo was vacated. The learned Judge found that the criminal court had directed the defendant No. 1 to be restored to possession and any interference with such direction even by way of a temporary injunction would amount to restraining the defendant No. 1 from prosecuting a proceeding in a criminal matter which is prohibited under S. 41 of the Specific Relief Act. He further held that the defendant No. 1, in view of the order of the learned Magistrate was entitled to possession even if he is ultimately found to be a trespasser until evicted by an order of the Civil Court made in due course of law. In coming to this conclusion the learned Judge relied on the decision reported in AIR 1959 SC 960. On such findings the application for temporary injunction was dismissed. Being aggrieved the plaintiff has preferred the present appeal.

( 6 ) THE proceeding under S. 145 was registered as Misc. Case No. 523/78 Evidence was adduced by both parties before the learned Magistrate. The learned Magistrate found as it appears from the order that the defendant No. 1 was in actual possession of a portion of the suit room upon a claim of sub-tenancy for several years upto March 31, 1978 and that he had been ousted from possession on April 1, 1978. The portion of the room in the occup

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