S. R. MISRA, J. ( 1 ) BY means of this appeal, plaintiff/appellant challenges an order passed by the learned Judge, VIIth Bench, City Civil Court at Calcutta In Title Suit No. 974 of 1905 dated 2. 8. 1995 refusing to pass an interim order directing the bearing of the injunction matter. Plaintiffs application for temporary injunction under Order 39 Rules I and 2 read with section 151 of the Code of the Civil Procedure restraining the defendants from evicting the plaintiff/appellant from the Suit Premises by way of executing sought to be executed in Title Suit No. 10 of 1994, pending before the learned Registrar, Bench of this Court in support of file stay application filed before this Court for the grant of injunction reads follows: ( 2 ) THE plaintiff/appellant/petitioner filed a Title Suit being Title Suit No. 974 of 1995 before the Learned Judge, VIIIth Bench, City Civil Court at Calcutta for a decree for declaration and permanent injunction against the defendants/respondents/opposite Parties and in the very suit the plaintiff/appellant/petitioner filed an application under Order 39 Rules 1 and 2 read with section 151 of the Civil Procedure Code, 1908 with a prayer for granting an order of temporary injunction restraining the defendants/ respondents/opposite parties No. 1. 2, and 3 their men, agent representatives and/or assignees from executing the decree sought, to be executed in Title Execution Case No. 10 of 1994 pending before the learned Registrar, City Civil Court at Calcutta till the disposal of the suit being No. 974 of 1995 and an order of ad-interim injunction in like manner as prayed to be passed and also prayer was made for other relief or relief's to which the plaintiff/appellant/petitioner was entitled to under law, equity and natural justice. ( 3 ) THE case made out by the plaintiff/appellant/petitioner is as follows: at all material times the plaintiff/appellant/petitioner is a tenant in respect of a shop room on the ground floor of the premises No. 15. Radhabazar Street since renumbered as 16a Radhabazar Street, Police Station Hare Street, Calcutta-700 001 within the jurisdiction of the learned Court at a monthly rental of Rs. 366. 25 paise payable according to English Calendar month under one Fida Hussain Ahmed Bhoy and Jainal Bhai Ahmed Bhoy, registered Partnership Firm, having its office at 9. Ganesh Chandra Avenue, Police Station. Hare Street, Calcutta. 366. 25 paise payable according to English Calendar month under one Fida Hussain Ahmed Bhoy and Jainal Bhai Ahmed Bhoy, registered Partnership Firm, having its office at 9. Ganesh Chandra Avenue, Police Station. Hare Street, Calcutta. The said shop room for the sake of brevity is hereinafter called and referred to as the "suit premises". ( 4 ) THE defendants/respondents/opposite party No. 1 is a Partnership firm and the defendants/respondents/opposite parties Nos. 2 and 3 are, its partners and they claimed themselves as the new purchasers of the entire Premises No. 15, Radhabazar Street, Calcutta since renumbered as 16a. Radhabazar Street. Police Station Hare Street, Calcutta-700001 on and from 31st day of January 1988 by virtue of an alleged registered Deed of Conveyance. ( 5 ) THE Defendants having alleged to have purchased the premises in question spreaded a rumour in collusion with one Shyamlal Gupta that the suit premises had been in the possession of the sold Shyamlal Gupta who had been alleged to have been running a shop them in the name of Messers. Shyam Watch Company, which is not correct and true, and they further spreaded a rumour in the market that the said Shyam Watch Company had surrendered the suit premises to the defendants. That after having spreaded the said rumour on 1. 10. 1988 the defendants Nos. 2 and 3 went to the roof of the suit premises and demolished a portion of the roof. These defendants also removed a portion of turfelt and some morter of the roof and every day they were bringing goondas, anti-socials and scums of the Society for the purpose of evicting the plaintiff from his lawfull possession forcibly and illegally without less taking recourse of law. ( 6 ) THE defendants Nos. These defendants also removed a portion of turfelt and some morter of the roof and every day they were bringing goondas, anti-socials and scums of the Society for the purpose of evicting the plaintiff from his lawfull possession forcibly and illegally without less taking recourse of law. ( 6 ) THE defendants Nos. 2 and 3 with the help of anti-social and scums of the Society had practically created such a situation that the plaintiff in such circumstances being apprehensive or dispossession from his lawful possession as tenant was constrained to file n suit being Title Suit No. 1784 of 1988 in the City Civil Court at Calcutta praying for a decree for declaration and permanent injunction and on a motion made on 13/10/ 1988 relating to an application under Order 39 Rules 1 and 2 read with section 151 of the Code of Civil Procedure obtaining an interim order of injunction in the form of direction to the parties concerned to maintain status quo in respect of the possession of the plaintiff in the suit premises from the learned Judge, 12th Bench. City Civil Court, at Calcutta. ( 7 ) THE said order inspite of having duly communicated and continuance and subsistence the same, the defendants Nos. 1, 2 and 3 on 14. 10. 1988 about 9-30 A. M. with the help of anti-social and scums of the Society dispossessed the plaintiff forcibly from his lawful possession in the suit premises by breaking open the padlock of the suit premises and also by cutting the rolling shutter with gas Cylinder. ( 8 ) THEREAFTER the Plaintiff filed a suit being Title Suit No. 107 of 1989 under section 6 of the Specific Relief Act, 1963 for recovery of the possession of the suit premises against the defendants telling, Inter alia, that he had been in the possession in the suit premises till the date of such dispossession ie. on 14. 10. 1988. on 14. 10. 1988. It may be stated here that in the meantime the aforesaid Title Suit No. 1784 of 1988 had been transferred from the Court of the learned Judge, 12th Bench to learned Judge,11th Bench, City Civil Court at Calcutta by the order of the learned Chief Judge, City Civil Court at Calcutta on an application under section 10 of the City Civil Court Act, 1953 by the defendants and the learned Judge, 11th Bench, City Civil Court at Calcutta heard the injunction application on contest and vacated the interim order granted on 13. 10. 1988 by his order dated 28. 5. 90. ( 9 ) THEREAFTER the plaintiff made a prayer for amendment of the plaint as regards to the recovery of the possession of the suit premises which was ultimately allowed by the learned 11th Bench, City Civil Court at Calcutta but the defendants as against the said order of amendment of plaint had preferred a Revisional Application before the Hon'ble High Court at Calcutta which was dismissed for default by an order passed by the Hon'ble Mr. Justice Pabitra Kumar Banerjee as none appeared on behalf of the defendants when the matter was called on for hearing. But however, the said Revisional Application was restored by an order passed by his Lordship Hon'ble Mr. Justice Rajkhowa on a prayer made by the defendants but again the defendants allowed the said Revisional Application to have been dismissed for default when the matter was called on by his Lordship the Hon'ble Mr. Justice Tarun Chatterjee. ( 10 ) THE Title Suit No. 107 of 1989 filed by the plaintiff for recovery of possession under section 6 of the Specific Relief Act 1963 against the defendants Nos 1, 2 and 3 were decree exparte on 4th day of June, 1990 by the learned Judge, 12th Bench. City Civil Court at Calcutta. ( 11 ) HAVING obtained the exparte decree on 4th day of June, 1990 of the Plaintiff herein put the decree for execution and obtained the delivery of possession of the suit premises on 22nd day of May, 1992 through the seal bailiff of the City Civil Court at Calcutta empowered with an order of the learned Register, City Civil Court at Calcutta to break open the padlock of the suit premises. ( 12 ) THE defendants Nos. ( 12 ) THE defendants Nos. 1, 2 and 3 immediately thereafter filed an application under Order IX Rule 13 mad with section 151 of the Code of Civil Procedure. 1908 registered as Misc. Case No. 411 of 1992 before the learned Judge XIIth Bench. City Civil Court at Calcutta for setting aside the decree passed on 4th June, 1990 by the learned Judge, 12th Bench, City Civil Court at Calcutta on the grounds stated herein and the learned Judge ultimately allowed the said application on contest and act aside the said exparte decree on 15/5/1993 and consequently the above Title Suit No. 107 of 1989 was restored' to its original file and number. ( 13 ) HEREINAFTER the defendants filed an application under section 144 of the Code of Civil Procedure, 1908 before the learned Judge, 12th Bench, City Civil Court at Calcutta for restitution of the possession of the suit premises and the said application was registered as Misc. Case No. 1362 the learned Judge after hearing both the parties allowed the prayer for restitution of the suit premises on contest by his Order dated 6112/1993. ( 14 ) HAVING obtained the order for restitution in an application under section 144 of the Code of Civil Procedure 1908 the defendants put the same into execution which has been registered as Title Execution Case No. 10 of 1994 before the learned Registrar, City Civil Court at Calcutta and the same is pending for disposal. ( 15 ) AS against the said order passed under section 144 of the Code of Civil Procedure, the Defendants being aggrieved by and dissatisfied with the same preferred an appeal being F. A. T. No. 553 of 1994 before the Hon'ble High Court at Calcutta and a Division Bench of the Hon'ble High Court at Calcutta comprising the Hon'ble Mr. Justice Samir Kumar Mookherjee and the Hon'ble Mr. Justice J. K. Mathur after hearing both the parties dismissed the same by their Lordships' Judgment dated 16th September, 1994. ( 16 ) THE Title Suit No. 107 of 1989 being restored to its original file and by virtue of an order date 15th day of May, 1993 was subsequently dismissed for non-prosecution by the learned Judge, 12th Bench, City Civil Court at Calcutta. ( 17 ) THE Hon'ble Mr. Justice Samir Kumar Mookherjee and the Hon'ble Mr. ( 16 ) THE Title Suit No. 107 of 1989 being restored to its original file and by virtue of an order date 15th day of May, 1993 was subsequently dismissed for non-prosecution by the learned Judge, 12th Bench, City Civil Court at Calcutta. ( 17 ) THE Hon'ble Mr. Justice Samir Kumar Mookherjee and the Hon'ble Mr. Justice J. K. Mathur while delivering judgment in the aforesaid appeal being numbered F. A. T. No. 553 of 1993 on 16/9/94 stated "it may be pointed out that the appellant was a tenant in the property. The contention of the appellant is that he was forcibly dispossessed while the Respondents who are the owners of the property contend that the appellant had surrendered his tenancy long before the alleged dispossession. "their Lordships further stated-"and also because the parties still have the forum of the regular suit to have their rights determined. In these circumstances, the proceeding under section 144 of the Code of Civil Procedure cannot be converted into omnibus proceedings while they are only to consider entitlement to restitution in terms of the provisions of Law". ( 18 ) THE plaintiff submits that in the premises Their Lordships have given bar liberty to the plaintiff to have the rights to him and other parties decided by way of a filing a suit as the proceeding under section 144 of the Code of Civil Procedure cannot be converted into omnibus proceedings. ( 19 ) THE plaintiff submits that since at all material times, he is a lawful tenant in respect of the suit premises he is only liable to be evicted form the suit premises by an order or decree passed in a suit for eviction on the ground as contemplated under the West Bengal Premises Tenancy Act, 1956, for evicting of a tenant an no other decree or order passed by any Court of law cannot evict a tenant who hired a premises on the strength of his tenancy and is binding upon him to give delivery of possession. ( 20 ) THE plaintiff further submits that although he was forcibly disposed by the defendants from the suit Premises on and from, 14. 10. 1988 to the after noon of 22. 5. ( 20 ) THE plaintiff further submits that although he was forcibly disposed by the defendants from the suit Premises on and from, 14. 10. 1988 to the after noon of 22. 5. 1992 the right of a lawful tenant in respect of the suit premises was not extinguished and also the relationship between the defendants and the plaintiff as landlords and tenant was never determined at any point of time to the date such illegal dispossession from the suit premises and still today. ( 21 ) MOREOVER, carrying of an order of restitution of possession in decree passed in a proceeding under section 144 of the Code of Civil Procedure is required to be legally determined finally on a fullfledged judgment and decree passed in an ejectment suit having the proper cause of action arising out or the adequate legal steps taken in accordance with the provisions contemplated under the West Bengal Premises Tenancy Act. 1956. ( 22 ) THE Plaintiff submits that the nature of his possession in respect of the suit premises is definitely endorsed by law as he is a premises tenant and decree passed in a proceeding under section 144 of the Code of Civil Procedure cannot outweigh the provisions contemplated under the West Bengal Premises Tenancy Act, 1956. ( 23 ) THAT in the circumstances, and for the masons stated herein above the plaintiff is constrained to life this suit for a decree for declaration that he is a lawful tenant in respect of the suit premises at premises No. 15, Radhabazar Street, since renumbered as 16a, Radhabazar Street, Police Station Hare Street. Calcutta-700 001 and the Title Execution Case No. 10 of 1994 filed by the defendants for delivery of possession of the suit premises by way of executing a decree passed in an application under section 144 of the Code of Civil Procedure is not at all maintainable against him and also a decree of declaration that the decree passed on 6/12/1993 by the learned Judge, 12th Bench. City Civil Court in Misc. City Civil Court in Misc. Case No. 1362 of 1993 under section 144 of the Code of Civil Procedure and further decree for declaration that the defendants are not entitled to get delivery of possession of the suit premises by way of executing a decree passed in an application under section 144 of the Code of Civil Procedure, 1908 by evicting the plaintiff being a lawful tenant from the suit premises and also for a decree for permanent injunction restraining the defendants, their men, agents, representatives and/or assignee from eviction the plaintiff from the suit by way of executing the decree under challenge. ( 24 ) AFFIDAVIT-IN-OPPOSITION was filed which in substance states the stand taken by the defendants/respondents before filing a written statement before the trial court and application under sections 10 and 11 of the Code of Civil procedure was filed and also contentions raised on behalf of the defendants/respondent which are contained in paragraph 1-8 of the Affidavit-in-opposition as quoted hereunder :"i say that I am the O. P. No. 2 and a partner of the O. P. No. 1 and I have been authorised by the O. P. No. 3 to affirm this affidavit on his behalf. I am also fully acquainted with the facts and circumstances of this case and as such I am competent to make and affirm this affidavit on behalf of all the respondents, which I am so doing. I say that I have read a copy of petition verified by the affidavit of Dilip Kumar Dey in September 1995 (as the affidavit portion of the supply copy of the said petition contains blanks) and I have understood the purports meanings and contents thereof. With reference to paragraphs 1 and 2 (including the sub paragraph, thereunder) I say that the statements made thereto are matters of record, and save what appears from records is denied by me. In this behalf the respondents reserve the statements made in the plaint of T. S. No. 974 of 1995 in their written statement if the occasion so arises. I however deny that the T. S. No, 974 of 1995 is maintainable as the same is barred under section 10 CPC. In fact the said T. S. No. 974 of 1995 was filed by the appellant in or about April 1995 but the appellant chose not to move any application for Injunction prior to August 1995. I however deny that the T. S. No, 974 of 1995 is maintainable as the same is barred under section 10 CPC. In fact the said T. S. No. 974 of 1995 was filed by the appellant in or about April 1995 but the appellant chose not to move any application for Injunction prior to August 1995. Before the application for Injunction was filed in the said T. S. No. 974 of 1995 the, O. P. 's herein as defendants therein entered appearance and filed an application under section 10 CPC a copy of which is annexed herewith and marked 'a' and the statement thereof me therefore not repeated but fully relied upon. I say that the defendants have also filed their objection to the application for injunction In T. S. No. 974 of 1995 a copy which without its annexures is annexed herewith and marked with the Letter 'b' and as such the contents thereof are not repeated for the sake of brevity but fully relied upon. With further reference to paragraph 2 and the sub paragraphs there under I particularly deny that the petitioner is a tenant in respect of any portion of premises No. 16a, Radhabazar Street, Calcutta or that the obtaining of possession by the O. P's from Shyamlal Gupta was illegal or collusive, or that the O. P. 's are guilty of any illegal act or act of hoollganism or have ever taken help of gundas, antisocials or scums of society, It is further denied that the O. P. s are guilty of any act of violation or violation of any order of court. In fact proceedings are pending against the petitioner for having violated orders of court. I say that the case made out by the petitioner in T. S. No. 974 of 1995 is exactly the same in so far as establishing his alleged title is concerned, as made out in T. S. No. 1784 of 1988. A copy of the plaint of the said T. S. No, 1784 of 1988 is annexed hereto and marked with the letter 'c'. The Statements thereof are not repeated for the sake brevity but fully relied upon. A copy of the plaint of the said T. S. No, 1784 of 1988 is annexed hereto and marked with the letter 'c'. The Statements thereof are not repeated for the sake brevity but fully relied upon. I say that a comparison of the statements made in the plaint of T. S. No. 1784 of 1988 and the subparagraph of paragraph 2 of the said petition will go to show that the petitioner has made out the self same case over again. In the said T. S. No. 1784 of 1988 the Injunction application of the petitioner was rejected on contest and the ad Interim order vacated. A copy of the said order is annexed herewith and marked with the letter 'd'. Thus if the Injunction application in T. S. No. 974 of 1995 is allowed it will give rise to a conflict of Judicial decision and will help the petitioner achieve indirectly what he could not achieve directly earlier. I say that the petitioner most wrongfully and Illegally obtained an exparte decree in T. S. No. 107 of 1989 and which decree has been finally set wide and the suit withdrawn the petitioner obtained possession of the suit premises in execution of the said exparte decree but as the same has been set aside and repossession and/or restitution of possession directed by court any injunction preventing such repossession shall be a denied of justice to the opposite parties and the principles of equity demand that no such injunction be granted. By T. Execution Case No. 10 of 1994 the opposite parties seek to recover such possession and the bailiff went to delivery such possession on 3. 8. 1995 but was resisted and as such the opposite parties have instituted proceedings before the learned 12th Bench City Civil Court at Calcutta being Misc. Case No. 1757 of 1995 under order 21 Rule 97 CPC and article 208 of Civil rules and orders for obtaining possession with police help. The next date fixed in the matter is on 15. 11. 1995 and a copy of the sold petition is annexed herewith and marked 'e' and such the contents thereof are not repeated for the sake of brevity. I say that on 7. 8. 1995 notices had been sent to the petitioner in the said misc. The next date fixed in the matter is on 15. 11. 1995 and a copy of the sold petition is annexed herewith and marked 'e' and such the contents thereof are not repeated for the sake of brevity. I say that on 7. 8. 1995 notices had been sent to the petitioner in the said misc. case but the report is that the petitioner was never to be found in the suit premises. It is therefore obvious that the petitioner is not utilising the suit premises and as such as the petitioner will not suffer if the injunction is not granted. I crave reference to the final order passed in F. A. T. No 553 of 1994 on 16. 9. 1994 for ascertaining its true purport. scope, effect and meaning. With reference to paragraphs 3 and 4 of said application I deny anything appearing therein not borne out from records and I say that the learned Judge was correct in refusing injunction. With reference to paragraphs 5. 6 and 7 of the said application I deny that the petitioner will suffer my loss or Injury and I reiterate the statements already made herein before. On the contrary it is opposite parties who shall continue to suffer irreparable loss and injury. I deny that the said application is bonafide for the ends of justice. I submit that the sold application be dismissed and interim order passed on 26. 9. 1995 be vacated. " ( 25 ) THAT when the matter of injunction was taken before the trial court defendants entered appearences and filed a caveat and also an affidavit in-opposition. So the trial court instead of considering the question of grant of an interim order directed the hearing of the injunction matter. To appreciate the controversy, It is necessary to quote order of the trial court dated 2. 8. 1995 which is as Follows:"received the record from the Registrar's Bench. This is a petition for temporary injunction made by the plaintiff / petitioner under order 39 rules 1 and 2 read with section 151 of the same code restraining the defdts. from evicting the plaintiff/petitioner from the suit premises by way of executing the decree sought to be executed in T. S. No. 10 of 1994 pending before the learned Registrar's bench of this Court. Defdts. have entered appearance and file a caveat and also an affidavit-in-opposition. Under this circumstances. from evicting the plaintiff/petitioner from the suit premises by way of executing the decree sought to be executed in T. S. No. 10 of 1994 pending before the learned Registrar's bench of this Court. Defdts. have entered appearance and file a caveat and also an affidavit-in-opposition. Under this circumstances. no interim order is passed. Fix 23. 8. 95 for hearing the injunction matter. " ( 26 ) AGGRIEVED by the order, the plaintiff / appellant has filed this appeal and also an application under Order 39 rule 1 and 2 read with section 151 of the Code of the Civil Procedure. Parties have exchanged their affidavit. The narration of the facts contained in the affidavit support of the injunction application and affidavit-in-opposition to the application for injunction have been quoted in extensive. We have heard the learned Counsel for the parties at length. We do not however propose to decide the controversy involved in the case as this appeal arises; out of an interim order refusing to grant and ad interim order pending disposal of the injunction application. It is clear that the defendants/respondents have not yet filed a written statement. So the question of framing issue does not arise. Our expression of prima facie view may prejudice the parties at the time of disposal of the Injunction application. ( 27 ) IT has been urged on behalf of the learned Counsel for the plaintiff appellant that the trial Judge fell into an error in not passing an order of ad interim injunction restraining the defendants/respondents from executing the deem in Title Suit No. 10 of 1994. It has also been pointed out that plaintiff/appellant was a tenant of the premises in dispute and sought a deem for declaration and permanent injunction against defendants/ respondents and/prayer for temporary injunction and since the plaintiff was in actual physical possession over the property in dispute, the trial court ought to have passed an order in his favour and without an application of mind, the trial court has rejected application for an ad interim injunction. It was further urged that the plaintiff/appellant admittedly at one point of time was a tenant of the accommodation in dispute and he never surrendered his tenancy and he was forcibly disposed of without following the procedure of law and in a Suit trader section 6 of the Specific Relief Act. It was further urged that the plaintiff/appellant admittedly at one point of time was a tenant of the accommodation in dispute and he never surrendered his tenancy and he was forcibly disposed of without following the procedure of law and in a Suit trader section 6 of the Specific Relief Act. Appellant obtained possession on the basis of an exparte decree. The exparte decree having set aside the application under section 144 of the Code of Civil procedure was allowed, directing the appellant to deliver possession against the said order, appellant filed an appeal but the mid appeal was dismissed. Dismissal of the appeal itself gave right to appellant to agitate the matter in regular suit. Relevant portion of the judgment of the appellate Court in proceedings under section 144 in appeal contained in paragraph 26 are as follows:"the extent of enquiry under section 144 cannot be enlarged to usurp the jurisdiction of the regular court, especially when that court had the question raised before it by parties but was not permitted to adjudicate finally. This Court cannot enter upon rights of the parties which were in fact the subject matters of the suit and decide them in the proceedings under section 144 CPC, in the circumstances of the present case where the appellant pressing for the decision of this question has avoided a decision by a competent Court and also because the parties still have the forum of the regular suit to have their rights determined. In these circumstances, the proceedings under section 144 cannot be converted into omnibus proceedings while they are meant only to consider entitlement to restitution in terms of the provisions of law. " ( 28 ) TAKING assistance of the observation made in appeal arising out of proceedings under section 144 It was urged that what is relevant at this stage is whether triable issues have raised by the plaintiff and whether there am substantial questions are to be investigated. " ( 28 ) TAKING assistance of the observation made in appeal arising out of proceedings under section 144 It was urged that what is relevant at this stage is whether triable issues have raised by the plaintiff and whether there am substantial questions are to be investigated. It was also pointed out that what will be the effect of the Title Suit No. 1784 of 1988 and 107 of 1989 is a matter to be heard and examined when the written statement of the defendants is on the record and at this stage when admittedly the plaintiff/appellant is in possession his possession is to be protected and the application for injunction should have been allowed and apparent error has been committed by the trial judge in refusing to pass an order in favour of the plaintiff/appellant. ( 29 ) IT has also been urged that in a suit for declaration and injunction when a prayer is made for grant of an ad interim injunction and the question involved are such which requires a decision and issues are triable issues. It is obligatory on the part of the trial Judge to pass an order pending the disposal or the suit or the injunction application but the trial court has erred in keeping injunction application pending and refusing to pass order of ad interim injunction. When the appeal was filed before this Court this Court passed an order of Status Quo, which is still continuing. The learned Counsel for the defendants/respondents has raised a number of plea and according to him once a suit was filed by the plaintiff/appellant in the year 1988 and in that suite plaintiff did not get an order of injunction. Thereafter initiating proceedings under section 6 of the Specific Relief Act they obtained an exparte order and in execution of the said order got possession and on reversal of the exparte defendants/respondents am legally entitled for restoration of possession and there is no justification on the part of the plaintiff/appellant or resist execution of the order under section 144. Code of Civil Procedure which also affirmed for an appeal by a Bench of this Court. ( 30 ) IT was further urged on behalf of the defendants/respondents that raising all technical pleas by the appellant is without a substance he has no equity not balance of convenience. Code of Civil Procedure which also affirmed for an appeal by a Bench of this Court. ( 30 ) IT was further urged on behalf of the defendants/respondents that raising all technical pleas by the appellant is without a substance he has no equity not balance of convenience. On the other band after instituting various suits and having failed to obtain an order of Injunction In suit of 1988, them was no justification on the part of the appellant to Me another under the prevision of the Specific Relief Act and thereafter to resist the execution of proceedings under 144. It was also been urged that on reversal of an, exparte decree restitution is a condition precedent and it is duty of the Court to execute the decree. It was further pointed out that suit was filed in April 1995 and the injunction application was filed in August, 1995. This clearly goes to show-that the appellant has no case on merit and he has only chance by Initiating various legal proceedings and hoping for a favourable order from one Court or the other. Plaintiff Title Suit No. 174 of 1988 which was dismissed for non-prosecution. Second suit was not maintainable. In Title Suit No, 174 of 1988, an application for temporary injunction was filed and the said application was dismissed on 28th of May, 1990. ( 31 ) IT was further pointed out that the trial court has not gone into the merit of the case and it is open for the appellant to pursue his injunction application before the trial court and there is no substance in the appeal. The learned Counsel for the appellant also placed a reliance on a decision reported In 1981 (1) CLJ Page 339 in the case of Debabrata Mukherjee v. Kalyan Kumar Roy. The Bench has held as under :"the learned Judge of the Court below in substance found that the decision in the said ejectment suit in which Debabrata and Kalyan were co-defendants operated as res judicata and therefore the plaintiff in the present suit could not be heard to say that he was a sub-tenant under Kalyan. At this Interlocutory stage the question of res judicata ought not to have been decided because the materials on record at incomplete and insufficient and the suit itself remains for disposal. At this Interlocutory stage the question of res judicata ought not to have been decided because the materials on record at incomplete and insufficient and the suit itself remains for disposal. Therefore, the trial court committed an error in rejecting the plaintiffs application for temporary injunction practically only on the ground that the suit brought by the plaintiff was barred by res judicata. " ( 32 ) IN support of the contention that at the interlocutory stage, the question of res judicata or finality is not to be finally decided and what is relevant at the stage of considering the question of grant of a temporary injunction or ad interim injunction, golden three principles laid down in this regard (i) Prima facie case (ii) balance of convenience and (iii) irreparable injury, if the appellant is ejected. Without going into the question involved in the case, irreparable injury will cause to the appellant. The relevant portion of the judgment of the Division Bench referred to above. Although at the cost of repetation we have already indicated that we do not propose to decide and record our findings on the point addressed by the learned Counsel for the parties as any decision or observation at this stage will effect the right and interest of the parties. Parties during the course of the argument have cited some of the authorities in support of their contentions but we do not propose to decide at this stage the point of finality, maintainability of the suit or the res judicata as such we need not lengthen our judgment by giving reference to the decisions referred to or which can be said to be on the point in question. During the course of the hearing though not directly admitted by the learned Counsel for the defendants respondents but when the question arises before us that whether the order passed by the learned trial Judge can be sustained and it was an implied silence on the part of the learned counsel for the respondents that the order as itself cannot be sustained. ( 33 ) THE moot question involved and which requires a consideration and a decision of this court is whether the suit for declaration and injunction at the time of presentation of such a suit when the court is called upon to consider an application for an ad-interim injunction along with the suit and before filing of the written statement at the threshold of the proceeding a question arises like a plea of sections 10 and 11 of the Code of Civil Procedure. In such a case what is the duty of the court. Some of the options which are open to the court are: (1) to consider the application for ad interim injunction on the basis of the materials placed before the court and to make up a mind and if a prima facie case balance of convenience and irreparable injury is likely to be caused, the Court may pass an order of injunction or reject the same as the case arises, When a question arises whether the suit is maintainable because there has been an earlier suit and the decision will bind the parties and will attract res judicata. Another class may where the court may like to hear the defendant and after filing of the written statement, the question of applicability of sections 10 and 11 may be heard together along with other issues and the suit be decided expeditiously. In this connection another question also arises that when various options are open and available to a court in a given case which of the mode is more appropriate it will depend on the facts and circumstances of each case. However, broadly speaking for special feature of a case in the normal course the court may consider the application for ad interim injunction on merit in accordance with law and not to postpone the matter so as to not to consider at initial stage of an irreparable injury which may be caused to a party. When the court considers the injunction application, the case must contain a triable issue. When the court considers the injunction application, the case must contain a triable issue. What to a triable issue is also a complex question but in such-view of the matter commonsense view may also be considered mere filing of a suit and raising a plea that the earlier suit or decision is not binding must be based on some plausible explanation that is why the principle before granting an injunction is that party must make out a prima facie case where triable issues are to be considered and then alone the other two conditions balance of convenience and irreparable injury, are to be taken into account. ( 34 ) A perusal of the impugned order will go to show that when the injunction application was filed defendants have already appeared and they have filed their objections. It was the duty of the trial court to have decided the injunction application and not to postpone the matter and reject the application at that stage which in substance means that injunction application may not be said to have been disposed of on merit though the words used by the trial court which reads as under. "affidavit-in-opposition under these circumstances no interim order was passed. " this cannot be said to be an order in the eye of law as; after the filing of the affidavit-in-opposition there is no impediment on the part of the learned judge to take a decision one way or the other. We are also of the opinion that in such matters the attempt on the part of the court should be to consider the injunction application on merit and not to postpone the matter-giving rise to appeals, which are not required in substance. It is also to be taken note of that the order impugned was dated 2nd of August 1995 fixing the date 23rd of August 1995 for hearing of the injunction application. If the parties would have agitated before the trial Court instead of hurriedly coming to this Court in this miscellaneous appeal but for the mistake committed on the part of the trial Judge that instead of deciding the injunction application; he postponed the matter and the plaintiffs appellant apprehended that if the decree is executed, the consideration of the injunction application at a later stage may make the injunction application infractuous. After the filing of this miscellaneous appeal. After the filing of this miscellaneous appeal. What happened before trial court is not known to this Court as the parties have not placed the materials in this regard. ( 35 ) LASTLY, it was urged by the learned Counsel on behalf of the respondent that if this court comes to the conclusion that the order of the trial Judge cannot be sustained and the same is liable to be set aside and then instead of sending the case back to the trial court for deciding the injunction application, since parties have placed materials before this Court, this court in its appellate jurisdiction may consider and dispose of the injunction application itself which will expedite the disposal of the injunction application and it will not cause any unnecessary harassment to the parties and whatever may be the fate of the injunction application it may be known to the parties. In reply to this argument of the learned Counsel for the appellant it was urged that when the trial court has not considered the materials from the record and the order is found to be bad, the trial court be directed to decide the injunction application and there is no reason as to why the appellant be deprived of an opportunity to argue the case before the trial court. We are of the opinion that since we have come to the conclusion that the order of the trial judge is liable to be set aside it appears to be appropriate that the trial judge be directed to consider and dispose of the application for injunction on merit in accordance with law. Since the trial court has not considered the materials in support of the injunction application nor considered the opposition to the said injunction application the mere presence of the materials before us necessarily do not call for a decision by appreciating evidence by this court and in an appropriate case, this Court may exercise such a power and decide the controversy instead of remanding the case but the case in hand, the learned judge has posted injunction application for hearing and in the meantime prayer for ad interim Injunction was rejected. This view of the trial Judge having held by us as erroneous, the trial court will consider the application on merit. This view of the trial Judge having held by us as erroneous, the trial court will consider the application on merit. We must clarify that while hearing of this appeal arising out of the injunction application we have not gone into the merit of the case. ( 36 ) HAVING considered the arguments and the authorities as well as the materials on the record, the affidavit of the parties, we are of the opinion that the trial court should consider and dispose of the injunction application on merit in accordance with law. The trial court is face to Pass an appropriate order and for a period of four weeks from the date of presentation of a copy of this order to the trial court, parties to maintain status quo. The trial court is requested to decide and to dispose of the injunction application and both parties will co-operate before the trial court so that the injunction application be disposed of. We have already observed earlier that we do not propose to make observation on merit of the contentions by the parties which will prejudice the consideration of the injunction application and the suit itself in such a view of the matter. It is also open for the parties to place materials if they so desired during this period so that the injunction application may be disposed of within the time allowed by this Court. Accordingly, the appeal succeeds and the order of the learned trial Judge. dated 2. 8. 1995 is set aside to that extent and he is directed to decide and dispose of injunction application a fresh in accordance with law within a period of four weeks from the date of presentation of a copy of the order passed by this Court. Office is directed to communicate this order to the trial court through a special messenger, costs of which will be borne by the respondents and the order is to be communicated within three days from today. Office is directed to communicate this order to the trial court through a special messenger, costs of which will be borne by the respondents and the order is to be communicated within three days from today. It is made clear that granting of status quo for a period of four weeks is without considering the respective cases of the parties and the learned Judge will not be influenced by an order of status quo and he is free to decide the injunction application strictly on the materials on the record or any other materials which may be supplied by the parties to dispose of the injunction application in accordance with law and looking after the provision of the Order 39 Rule 1 and 2 of Code of Civil Procedure. Parties are directed to bear their own costs. It is open for the parties to take out the gists or the operative portion of the order and the learned Trial Judge will act on the same. S. Narayan. J. I agree. Appeal succeeds