A suit for declaration of tenancy right over immovable property is maintainable in the City Civil Court despite an order for delivery of possession under Chapter VII of the Presidency Small Cause Courts Act.

( 1 ) THIS appeal is directed against the order No. 4 dated 18th of December, 1996 passed by the learned judge, 3rd Bench, City Civil Court at Calcutta in Title Suit No. 3660 of 1996, granting an ad interim injunction in favour of the respondent No. 1 restraining the appellants from evicting him from the suit premises till disposal of the injunction application.

( 2 ) IN short, the facts of the case inter alia, are that the appellants are the owners of premises No. 30, Creeck Row, Calcutta-14. The respondent No. 2 was the licensee in respect of 7 rooms on the first floor of the suit premises with clear understanding that he would vacate the suit premises as and when demanded by the owners. Since, in spite of repeated demands, the licensee did not vacate the suit premises, the appellants along with their mother Sudhanghshudebi Moitra, since deceased, filed SCC Suit No. 2766 of 1982 under section 41 of the Presidency Small Cause Courts Act for eviction of the said licensee namely, the respondent No. 2. In the said suit one Badal Ch. Sen was made defendant No. 2, who was living along with the respondent No. 2 in the suit premises at the relevant time, without any authority.

( 3 ) IN the said suit, both the respondent No. 2 and Badal Ch. Sen entered appearance, but the written statement was filed only by the respondent No. 2 denying and disputing the allegations made in the plaint. Ultimately, however, as the respondent No. 2 did not appear when the suit was called for hearing, the same was decreed ex parte against the defendants on 13th of March, 1986. The said decree was put into execution for taking delivery of possession of the suit premises, by the plaintiffs but the same was resisted by the respondent no. 2 and as such, the appellants prayed for appropriate police help. Accordingly, the bailif went to the site for delivering possession of the suit premises with the assistance of the police, but as the police assistance was inadequate, possession could not be delivered. The appellants thereafter, filed an application for more police help which was allowed by the executing Court.

( 4 ) IN the meantime, the respondent No. 1 filed title suit no. 3660 of 1996 in the Court of learned judge, 3rd Bench, City Civil Court, Calcutta against the appellants as well as their deceased mother Sudhanghshudevi Moitra and also against the respondent no. 2, claiming inter alia for a declaration that he was a bonafide tenant under the appellants in respect of the suit premises and that the appellants were not entitled to execute the decree passed in the aforesaid SCC Suit No. 2786 of 1982 since it was a nullity, and also for permanent injunction. In the said suit, the respondent No. 1 also filed an application for temporary injunction upon which the learned judge of the Court below was pleased to pass an ex parte ad interim order of injunction by his order No. 4 dated 18. 12. 96, which is the subject matter of challenge in the present appeal.

( 5 ) MR. Roy Chowdhury, learned senior counsel, appearing on behalf of the appellants inter alia, contended that since section 48 of the Presidency Small Cause Courts Act provides that Code of Civil Procedure would apply to all proceedings under Chapter VII of the said Act, the proceeding, initiated by the appellants against the respondent no. 2 for his eviction from the suit premises as a licensee filed under section 41 of the Presidency Small Cause Courts Act being a proceeding under Chapter VII of the said Act, would also be covered by section 48 of the same, and as such, as the execution case was pending, the only course for the respondent No. 1 was to challenge the order of eviction in the execution proceeding, but he could not file a separate title suit in view of the provisions of Order 21 Rule 101 of the Code of Civil Procedure and referred to the decisions reported in AIR 1950 Calcutta 244; AIR 1954 Madras 985 and 1997 (1) CHN 495.

( 6 ) MR Roy Chowdhury further contended