JUDGMENT
Bhaskar Bhattacharya, J.
1. This first miscellaneous appeal is at the instance of plaintiff in a suit for declaration and injunction and is directed against Order No. 3 dated 23rd April, 2004 passed by the learned Judge-in-charge, 7th Bench, City Civil Court at Calcutta, in Title Suit No. 461 of 2004 thereby refusing the prayer of ad interim injunction on an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure filed by the appellant. By the said order, the learned Trial Judge merely issued notice upon defendants to show-cause why the prayer of the plaintiff for temporary injunction should not be granted.
2. The appellant filed in the City Civil Court at Calcutta the aforesaid suit being Title Suit No. 461 of 2004 thereby praying for the following relief:
(a) Declaration that the defendants has got no right to deny the right of the plaintiff as a tenant in respect of the tenanted premises and/or in respect of the equivalent space to be constructed in the building at the premises aforesaid; (b) Permanent injunction restraining the defendants from demolition and/ or destruction and/or changing the nature of the building, and/or the tenanted premises; (c) Permanent injunction restraining the defendants from encumbering and/or creating third party interest, alienating and/or parting with the possession of the tenanted premises without leaving or keeping apart the equivalent spaces in the new building to be constructed at the said premises for the plaintiff; (d) Temporary injunction directing the defendants to restore the tenanted premises in the same condition as it was prior to 4th July, 1999 and for the purpose for which the same was let out to the plaintiff and make over to the same within such time as this learned Court may deem fit and proper; (e) Mandatory injunction directing the defendants to provide an alternative and adequate accommodation to the plaintiff at premises No. 4, Netaji Subhas Road, Calcutta till full restoration of the said tenanted premises is made for the plaintiff in terms of prayer (d) above; (f) Receiver be appointed with the direction to take possession of the suit premises and observe that no demolition takes place and to take possession of the space measuring about 6030 square feet after reconstruction of the building and to hand over the same to the plaintiff after the construction is completed; (g) Receiver; (h) Injunction; (i) Cost; (j) Such other and/or further orders. 3. The case made out by the plaintiff may be summed up as follows:
1. The defendant No. 1 as landlord had let out various portions of the suit building being premises No. 1, India Exchange Place, Calcutta -700 001 to various tenants. The plaintiff is a tenant of the ground floor of the building of the said premises containing the carpet area of 6030 square feet and also a servant quarter at the rear block of the said building under the defendant No. 1 at the monthly rental of Rs. 3705/-.
2. On 4th July, 1999 when the tenant and occupier of the said premises were not there, the said premises was gutted by fire rendering the tenanted premises substantially and permanently unfit for human more particularly, by reason of its failure to keep the said premises safe and secure in all respect particularly from all fire hazards. The fire had its devastating effect on the plaintiff as the entire portion of the said premises in occupation of the plaintiff had been damaged resulting in incalculable loss to the plaintiff.
3. After the aforesaid fire, the defendant No. 1 stopped realization of rents in respect of the said premises from plaintiff which the defendant No. 1 used to do by debiting from the current account maintained by plaintiff with the defendant’s Bank.
4. The plaintiff, therefore, sent a letter dated 6th September, 1999 accompanied by cheque dated 6th September, 1999 for Rs. 7410/- and also by a further letter dated 4th October, 1999 the plaintiff forwarded the cheque on account of rent of October, 1999.
5. The aforesaid cheques were sent back by defendant No. 1 vide letter dated 27th October, 1999 and thereafter, the plaintiff had been regularly depositing the rent with the Rent Controller.
6. After the said fire, the defendant No. 1 has deliberately failed and/or neglected to take any steps whatsoever for restoration of the said tenanted premises of the plaintiff to the condition in which it was let out originally.
7. The plaintiff very recently on 24th March, 2004 came to learn that the defendant No. 1 has entered into some kind of agreement with the defendant No. 2 whereby defendant No. 1 agreed to transfer its right, title and interest over the said premises in favour of the defendant No. 2 and the defendant No. 2 was inter alia authorised to take such steps as it thought fit and proper including right to deal with the tenants of the property.
8. On 24th March, 2004, some people came to demolish the existing building and structure at the said premises and in fact started demolition of the back portion of the building at the said premises and the plaintiff came to know that the persons came for demolition had been sent by the defendant No. 2.
9. The plaintiff never consented to demolish any part or portion of the building and it is the obligation of the defendants to restore the said premises to the plaintiff in such condition as the same was let out.
4. In connection with the aforesaid suit, the appellant filed an application for temporary injunction under Order 39 Rules 1 and 2 of the Code of Civil Procedure thereby praying for temporary injunction restraining the respondents, their men and agents from in any way demolishing or destructing the present building and also in any way encumbering and from parting with the possession of the tenanted premises without keeping apart or apportion the petitioner’s tenanted premises.
5. As indicated above the learned Trial Judge on such application issued a notice to show-cause upon the defendants why the prayer of the plaintiff should not be granted but refused to granted interim order of injunction.
6. Being dissatisfied, the plaintiff has come up with the present appeal.
7. Mr. Mitra, the learned senior counsel appearing on behalf of the appellant, has by placing strong reliance upon the decision of the Supreme Court in the case of T. Lakhsmipathi and Ors. v. P. Nithyananda Reddy and Ors., , has contended that if a tenanted premises is destructed by fire, in such a case, notwithstanding destruction of the building, the right of tenancy in the property remains with the land beneath the building and as such, the defendants have no authority to take away the tenancy right of the plaintiff and to encumber the property in favour of third party. Mr. Mitra contends that even if the property is demolished and new constructions are made, his client is entitled to have equal amount of space in the ground floor of the building as occupied by his client prior to setting out of fire. Mr. Mitra contends that the learned Trial Judge acted illegally in refusing the prayer for ad interim order of injunction inasmuch as, in the absence of injunction, the defendants may induct a tenant or create any third party’s interest in the property.
8. The aforesaid contentions of Mr. Mitra are seriously disputed by Mr. Mukherjee, learned senior counsel appearing on behalf of defendant No. 2. Mr. Mukherjee in this connection places strong reliance upon the decision of the Supreme Court in the case of Vannattankandy Ibrayi v. Kunhabdulla Hajee, reported in 2001(1) SCC 564. According to Mr. Mukherjee, the tenancy of the plaintiff in this case being admittedly restricted to building portion, on destruction of the building by fire, the said tenancy of the plaintiff cannot survive. Mr. Mukherjee contends that this is not a case where the landlord has deliberately demolished the building and as such, the aforesaid decision of the Supreme Court is squarely applicable to the case in hand. Mr. Mukherjee further contends that the decision cited by Mr. Mitra has no application to the fact of the present case, inasmuch as, it will appear from paragraph 20 at top of page 161 of the said judgment that in that case the tenancy was not only over the building but also over the land and in such circumstances, the Apex Court laid down the aforesaid principles which cannot have any application to the present case where the tenancy is admittedly restricted to building portion. Mr. Mukherjee further points out that in the aforesaid Supreme Court decision relied upon by Mr. Mitra, the earlier decision of the Supreme Court in the case of Vannattankandy Ibrayi v. Kunhabdulla Hajee (supra), was not taken note of and consequently, Mr. Mukherjee proceeds, the decision relied upon by Mr. Mitra cannot be cited as a precedent in the fact of this case. He, thus, submits that the learned Trial Judge had not committed any illegality in refusing to grant ad interim injunction.
9. After hearing the learned counsel for the parties and after going through the materials on record, we are of the view that in this appeal since the scope of the appeal is very limited and is restricted to the question whether during the pendency of the injunction application, there should be an order of injunction, we should not enter into the merit of the case in details as the main injunction application is yet to be decided by the learned Trial Judge on merit.
10. However, we are of the opinion that in view of the decision of the Supreme the plaintiff has not been able to make out prima facie case on the basis of averments made in the plaint so as to obtain an ad interim order of injunction. It is now settled position of law that ad interim order of injunction is given in extreme urgent cases where in the absence of such injunction, the ultimate relief claimed in the suit may become inappropriate. Since the suit has already been filed and it is admitted that the tenanted portion has become unusable for human habitation, it cannot be said that for refusal of grant of ad interim order of injunction, the plaintiff’s ultimate relief in the suit will become inappropriate. We have already indicated that a suit having already been filed, if today, any third party’s interest is created over the suit property, such right will be subject to Section 52 of the Transfer of Property Act and thus, it cannot be said that plaintiff will suffer irreparable loss and injury or that its relief claimed in the suit will become infructuous. We, thus, do not intend to interfere with the order passed by the learned Trial Judge. The defendants are directed to file written objection to the application for injunction before the learned Trial Court within two weeks from the date, reply if any, within one week thereafter. The learned Trial Court is directed to dispose of the application for the temporary injunction within three weeks from the date of communication of this order. We make it clear that while considering the question of grant of temporary injunction, the learned Trial Court will not be influenced by the fact that this Court did not interfere with the order refusing to grant interim injunction as the scope of grant of ad interim order of injunction is different from that of grant of temporary injunction on contested hearing after considering the cases of the parties.
11. With the above observations, the appeal is dismissed. The interim order granted earlier stands vacated.
Rajendra Nath Sinha, J.
12. I agree.