JUDGMENT :

Biswaroop Chowdhury, J.

1. The petitioner before this Court is the respondent in the Learned Appellate Court and is directed against the Order passed by the Learned Court in setting aside the ad-interim Order of injunction passed by the Learned Trial Court.

2. The case of the petitioner may be summed up thus:

1) In the month of February 2021 the plaintiff/ petitioner filed the suit being T.S. No. 236 of 2021 before the Learned Civil Judge (Junior Division) 3rd Court at Howrah against the defendant/opposite party by praying inter alia for a decree of declaration against the defendant to the effect that the plaintiff is a tenant, under the defendant, decree for permanent injunction an Order for temporary injunction and other reliefs.

2) The petitioner/plaintiff along with the plaint also filed an application under Order 39 Rule 1 and 2 read with Section 151 of the Code of Civil Procedure for grant of temporary injunction.

3) The application for temporary injunction was moved before the Learned Court below and the Learned Court was pleased to grant ad-interim temporary injunction and the defendant was restrained from disposing the plaintiff/petitioner in respect of the suit property.

4) The defendant/opposite party filed an application for rejection of plaint under Order 7 Rule 11(d) of the Code of Civil Procedure and also filed his objection to the petition under Order 39, Rule 1 and 2 read with section 151 of the Code of Civil Procedure filed by the petitioner/plaintiff. Apart from filing petition under Order 7 Rule 11 CPC and objection to the injunction application an application for framing of preliminary issue on jurisdiction and for deciding maintainability of the suit under Order 14 Rule 2(2)(a) and (b) of the Code of Civil Procedure.

5) The opposite party by challenging the order dated 23-02-2021; passed by the Learned Civil Judge (Junior Division) 3rd Court Howrah in Title Suit No.-236 of 2021 preferred an appeal being Misc. Appeal No. 82 of 2021 before the Learned Additional District Judge 3rd Court Howrah alongwith petition for condonation of delay and petition for stay.

6) The petitioner is a patient of lungs disease and due to his illness he was advised by doctor not to move outside home. During the period of November 2021 he had suffered with acute lungs problem and it was not possible for him to contact and to hold conferences with his advocate and the petitioner was not represented before the Learned Appellate Court.

7) By Judgment dated 14-07-2022 the Learned Appellate Court allowed the Misc. Appeal No. 82 of 2021 ex-parte and Order dated 23-02-2021 passed by the Learned Civil Judge (Junior Division) 3rd Court Howrah, was set aside.

3. The petitioner being aggrieved by the Order dated 14-07-2022 passed by the Learned Appellate Court has come up with the instant application. It is the contention of the petitioner that the Learned Appellate Court below failed to appreciate that the plaintiff/petitioner is a tenant under the defendant/opposite party. It is further contended by the petitioner that the Learned Appellate Court below failed to appreciate that in absence of any order of injunction the plaintiff may be ousted from the suit premises by the defendant forcefully. It is also contended by the petitioner that the Learned Appellate Court below failed to appreciate that on a different Cause of action T.S.No-770 of 2017 was instituted and it has no nexus with the present suit. The opposite party/defendant filed affidavit in opposition to the petition. It is contended by the opposite party that Title Suit No-236 of 2021, was filed in full suppression of the fact that earlier Title Suit No-770 of 2027 was filed before the Learned Court for declaration and injunction with regard to self same suit property and self same relief against the self same parties except five persons who are excluded though their names were mentioned in paragraph-no-4 and who are also necessary parties to the suit. It is contended that the