Bhaskar Bhattacharya, P. N. Sinha, JJ.

( 1 ) INSTEAD of disposing of the application for stay being C. A. N. No. 2725 of 2006, we propose to hear out the appeal itself by treating the same as on day's list with the consent of the parties.

( 2 ) THIS first miscellaneous appeal is at the instance of the plaintiffs in a suit for declaration and injunction and is directed against Order No. 52 dated february 13, 2006 passed by the learned Trial Judge thereby rejecting the plaint.

( 3 ) THE present appellants filed a suit before the City Civil Court at Calcutta being Title Suit No. 1605 of 1997 thereby praying for declaration that the defendants were entitled to realize the arrear taxes from the plaintiffs on the basis of consolidated rate bills of premises No. 76c, Acharyya Jagadish Chandra bose Road, Calcutta, but the defendants were not entitled to realize arrear consolidated rate of taxes without the consolidated rate bills from the plaintiff's in respect of the premises and for permanent injunction restraining the opposite parties from taking any other recourses by issuing notice of distress warrant for realizing all arrear consolidated rate of taxes in respect of the said premises, but to allow the plaintiffs to continue in making payment by instalment of Rs. 15,000/- per mensem as per order of the Corporation dated July 10, 1992.

( 4 ) THE Corporation after entering appearance filed an application under order 7 Rule 11 of the Code of Civil Procedure for rejection of the plaint alleging non-compliance of the provisions contained in section 586 of the Kolkata municipal Corporation Act and also relying upon the bar created under section 189 (9) of the Act.

( 5 ) THE learned Trial Judge by the order impugned herein has accepted the contention of the defendant-respondents and consequently, rejected the plaint on the ground of non-compliance of the provisions contained in section 586 of the Act and also on the ground that the suit was not maintainable in view of the provisions contained in section 189 (9) of the Act.

( 6 ) BEING dissatisfied, the plaintiffs have come up with the present first miscellaneous appeal.

( 7 ) MISS Sanyal, the learned Advocate appearing for the appellants has strenuously contended before us that the learned Trial Judge erred in law in rejecting the plaint on the aforesaid grounds inasmuch as those provisions are not attracted in the fact of the present case.

( 8 ) MISS Sanyal first relies upon a decision of the Division Bench of this court in the case of Gowardhandas Rathi vs. Corporation of Calcutta and Anr. , reported in AIR 1970 Cal 539 in support of her contention that provision of section 586 of the Kolkata Municipal Corporation Act has no application to a suit for declaration and permanent injunction. She contends that although her clients in the plaint have prayed for both declaration and permanent injunction, nevertheless, the suit should be treated to be one under section 38 of the Specific relief Act, and, thus, section 586 (4) of the Act is attracted.

( 9 ) MISS. Sanyal next contends that in the present case even section 189 (9)of the Act has no application inasmuch as her clients have not challenged the assessment order under the provision of the Kolkata Municipal Corporation act. According to her, the plaintiffs have merely prayed for declaration that without the consolidated rate bills for the period involved in the suit the arrear taxes cannot be realized and further the plaintiffs should be entitled to get the benefit of the order dated July 10,1992 permitting the plaintiffs to pay arrears by instalment of Rs. 15,000 /- a month and so long that amount is paid every month, the Corporation is not entitled to invoke the other penal measures, such as, issue of distress warrant, etc.

( 10 ) MR. Das Adhikary, the learned senior Advocate appearing for the corporation has on the other hand relied upon a decision given by a learned single Judge of this Court in the case of Kolkata Municipa

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