Judgment BHASKAR BHATTACHARYA, J. :- This first miscellaneous appeal is at the instance of a plaintiff in il suit for declaration of title, permanent injunction, mesne profit and is directed against Order No.5 dated 18th November, 2008, passed by the learned trial Judge thereby dismissing an application for temporary injunction filed by the appellant. 2. Being dissatisfied, the plaintiff has come up with the present first miscellaneous appeal. 3. The appellant before us filed in the Fourth Court of Civil Judge, Senior Division, Alipore, a suit being Title Suit No. 2541 of 2008 thereby praying for the following relief: "a) A declaration that the plaintiff is the owner of the said flat, more fully and particularly described, in the Annexure-"A" to the plaint entitled to the quite, exclusive and vacant possession of the same to the exclusion of all others including the defendants and each of them; b) A decree against the defendants and each of them including the defendant No.3 directing the eviction of each of them from the said flat more fully and particularly described in the Annexure-"A" to the plaint; c) A decree against the defendants and each of them for recovery of quiet, vacant, peaceful and exclusive possession of the said flat more fully and particularly described in the Annexure-"A" to the plaint to the plaintiff; d) A perpetual order of injunction be passed against the defendants and/or each of them by themselves or by their officers or agents or employees or servants or assigns or otherwise howsoever from entering upon or remaining or occupying and part or portion of the said flat, more fully and particularly described in the Annexure-"A" to the plaint. in any manner whatsoever; e) A perpetual order of injunction be passed against the defendant~ and/or each of them by themselves or by their officers or agents or employees or servants or assigns or otherwise howsoever from disturbing or interfering with or obstructing the plaintiffs exclusive user, occupation arid enjoyment of the said flat, more fully and particularly described in the Annexure-"A" to the plaint. in any manner whatsoever; f) A decree for Rs. 70.0001- towards mesne profits against each oftI1e defendants as pleaded in paragraph ,22 hereof; g) Alternatively. in any manner whatsoever; f) A decree for Rs. 70.0001- towards mesne profits against each oftI1e defendants as pleaded in paragraph ,22 hereof; g) Alternatively. an enquiry to ascertain the mesne profits payable, by each of the defendants and a decree, for such sum as may be found due and .payable upon such enquiry; h) For the purposes aforesaid all necessary enquiries. accounts and directions; i) Receiver; j) Injunction; k) Attachment; l) Costs; m) Such further or other relief or reliefs as this Learned Court, may deem fit and proper. " 4. The case made out by the plaintiff was that there was an agreement for licence between the plaintiff and the defendant No. 1 for eleven months but even 'after the expiry of such licence the defendant No.3. the wife of the defendant No.2 had been staying in the suit property. According to the plaintiff, the defendant No.3. the wife of the director of the defendant No.1. is a rank trespasser and has no right to stay in the said flat. 5. In connection with the said suit. the wife of the defendant No.2 had been staying in the suit property. According to the plaintiff, the defendant No.3. the wife of the director of the defendant No.1. is a rank trespasser and has no right to stay in the said flat. 5. In connection with the said suit. the plaintiff came up with an application under Order' No. 39 Rules 1 arid 2 of the Code of Civil Procedure thereby praying for temporary injunction as mentioned below: "a) An order of temporary injunction restraining the respondents each of them, their servants, agents or assigns from in any way or manner interfering with the possession and right to enjoyment of the plaintiff in any way or manner whatsoever; b) An order of temporary injunction restraining the respondents and each of them, by themselves or by their servants or agents or assigns or otherwise howsoever from in any way or manner disturbing the right title and interest of your petitioner of and in the suit flat c) An order of temporary injunction restraining the respondent No.3, her men servants, agents and assigns from asserting for claiming any right of and in the suit flat in, any way or manner' howsoever or whatsoever; , d) An order of temporary injunction restraining, the respondents their respective servants, agents or assigns from in any way or manner taking any steps, to or remove any goods, furniture and fixture belonging to the petitioner and lying at the suit flat; e) An, order of temporary injunction re-straining the respondents and each of them, their respective men servants agents and/ or assigns from entering into the suit flat or any part 'or portion thereof in any way or manner howsoever or whatsoever; f) An order of injunction be passed directing the respondents and each of them jointly and/or severally to make deposit in such manner as this learned Court may deem fit and proper the mesne profit and/or damages for such wrongful and unuthorised use enjoy and occupation of the suit premises on and from 7th August, 2008 until handing over the vacant khas and peaceful possession thereof to your petitioner calculated at the rate of Rs. 10,000/- per diem until the disposal of the suit; g) An order of temporary- injunction be passed, restraining the respondents each of them, their servants, agents, or assigns from in any way or manner interfering with the possession and right to enjoyment of the plaintiff; h) Ad interim orders in terms of prayers (a) to (g) above; i) The respondents and each of them be directed to bear the costs of and incidental to the instant application and to pay the same to your petitioners herein; j) Such further and/or other orders be passed and/or direction or directions be given as Your Honour may deem fit and proper. " 6. The said application was opposed by the defendant No.3 by filing written objection thereby contending that the agreement for licence was, a camouflage one and was really an agreement for tenancy between the plaintiff and her husband who is the defendant No. 2 and the defendant No. 1 was a company controlled by the defendant No.2. According to the defendant No.3. due to matrimonial dispute between the defendant No. 2 and herself. the defendant No. ,2 had deserted her and was staying in a different place. She hiid already filed proceedings under the Protection of the Women from Domestic Violence Act. 2005 and has obtained an order against her husband and other members of his family from disturbing her possession in the suit flat.. The defendant No.3. therefore. really claimed to be the wife of the lawful tenant under the plaintiff. 7. The defendant Nos. 1 and 2. however, supported the, version of the plaintiff but expressed their inability to vacate the suit property, in view of the fact that the same was in forcible occupation of the defendant No.3. 8. The learned Trial Judge, on consideration of the materials on record, came to the conclusion that the defendant No.3 was in exclusive Possession of the property. The learned trial Judge was of the view so long the defendant No. 3 was not dispossessed by due process of 1aw, by way of interim order, the Court could not disturb her possession in the Property. Regarding the prayer of interim mesne profit, the learned trial Judge held, that the question of granting mesne profit would arise only after the passing of decree of eviction with the finding that the defendant No, 3 is a trespasser and therefore. Regarding the prayer of interim mesne profit, the learned trial Judge held, that the question of granting mesne profit would arise only after the passing of decree of eviction with the finding that the defendant No, 3 is a trespasser and therefore. by way of interim relief. no order of temporary mandatory injunction could be passed against the defendant No, 3 for Making payment of any amount by way of occupation-charge as a condition of her occupation. The learned trial Judge, thus, dismissed the application for temporary injunction. 9. Being dissatisfied, the plaintiff has come up with the present appeal. 10. Mr. Dev the learned senior advocate appearing on behalf of the appellant, by relying upon the decision of the Supreme Court in the case of Purushottam Das Bangur v. B. Majumdar Samajpati and Sons Hotel Private Ltd., reported in (2008) 7 SCC Page 447: ( AIR 2008 SC 2715 ) strenuously contended before us that a' Court has every power to pass direction upon the defendant to pay a reasonable amount as occupation charge when the defendant is ,not claiming ownership of the property and: particularly when according to defendant .No.3, she is the wife of a tenant. Mr. Dev submits that this Court, therefore, should set aside the order impugned and direct the defendant No.3 to pay a reasonable amount as occupation charge during the pendency of the suit by way of mandatory injunction. 11. Mr. Talukdar, the learned advocate appearing on' behalf of the defendant No.3, on the other hand, has opposed the aforesaid contention and has submitted that before passing a decree for eviction, the Court cannot pass any order upon the defendant for payment of occupation charge. Mr. Talukder contends that in the case of Purushottam Das Bangur (supra), relied upon by Mr. Dev, the Supreme Court in exercise of its power under Article 142 of the Constitution of India passed a direction for deposit of certain amount but: by the said decision, by way of proposition of law,. it was never held that a Court is competent to pass such direction as condition of occupying the suit property by way of interim order. Mr. Talukder, therefore, prays for dismissal of the appeal. 12. it was never held that a Court is competent to pass such direction as condition of occupying the suit property by way of interim order. Mr. Talukder, therefore, prays for dismissal of the appeal. 12. Therefore, the only question that falls for determination in this appalls whether in a suit for eviction even of a trespasser, a Court at the instance of the plaintiff can compel the defendant by way of interim order granting mandatory injunction to pay or deposit certain amount as occupation charge. 13. Before answering the aforesaid question, we should bear in mind that the plaintiff has preferred this first miscellaneous appeal against an order of rejection of her application under Order 39, Rules 1 and 2 of the Code of Civil Procedure by taking aid of Section 104 read with Order 43, Rule 1 (r) of the Code. 14. Therefore; in order to succeed in this appeal the plaintiff must establish that the prayer of mandatory injunction for a direction upon the defendant to deposit occupation-charge comes within the purview of Order 39 of the Code. In the case of Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal reported in AIR 1962 SC 527 . it has been held that the effect of the expression "if so prescribed" in Section 94 of the Code is to prescribe the circumstances in which Court can exercise its power or grant a particular relief and ordinarily, the Court is not to use its inherent power to make the necessary orders in the interest of justice but its duty is to see whether the circumstances of the case come within the prescribed rule. Therefore, in a case where the plaintiff seeks temporary injunction. the Court is required to ascertain whether the facts of the case fall under Order 39. For that reason. in exercise of power of the Court to issue temporary injunction. Section 94 has a role to play Section 94. however, does not take away the right of the Court to exercise its inherent power. If the circumstances necessitating the prayer of injunction do not come within the purview of Order 39 and the relief is prayed in exercise of power under Section 151 of the Code, refusal of such relief by a Court however, will not make the order appealable under Order 43 of the Code. 15. Therefore. If the circumstances necessitating the prayer of injunction do not come within the purview of Order 39 and the relief is prayed in exercise of power under Section 151 of the Code, refusal of such relief by a Court however, will not make the order appealable under Order 43 of the Code. 15. Therefore. within the scope of this appeal under Order 43. Rule 1 (r) of the Code, we shall restrict our scrutiny to consider whether the prayer for grant of temporary mandatory injunction for a direction upon the defendant to deposit a reasonable amount as occupation charge comes within the purview of Order 39. Rules 1 and 2 of the Code. 16. The provisions contained in Order 39. Rules 1 and 2 are quoted below: "1. Cases in which temporary injunction may be granted - Where in any suit it, is proved by affidavit or otherwise - (a) that any property in dispute in a suit in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a ecree; or (h) that the defendant threatens, or intends, to remove or dispose of his property with a view to (defrauding) his creditors. 2(c) that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit.) the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging alienation, sale, removal or disposition of the property 3 (or dispossession of the plaintiff, . or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit) as the Court thinks fit, until the disposal of the suit or until further orders. 2. or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit) as the Court thinks fit, until the disposal of the suit or until further orders. 2. Injunction to restrain repetition or continuance of breach.- (1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right. (2) The Court may by order grant such injunction, on such terms as to the duration of the injunction, keeping an account, giving security, or otherwise, as the Court thinks fit." 17. In the case before us, the plaintiff has described the defendant No.3 as a trespasser and has prayed for recovery of possession and also for mesne profits as a final relief in the suit. In the application for temporary injunction, although the plaintiff prayed for injunction restraining the defendants from entering into the suit property, such prayer was not made before us and the learned counsel for the appellant pressed for passing the order for direction upon the defendant No. 3 to deposit occupationcharge in mandatory form as an interim measure. 18. The law relating to the grant of interim mandatory injunction is now well settled by the Supreme Court in the case of C. D. George v. Assistant Commissioner of Central Excise, Trichur, reported in AIR 1990 SC 847 in the following terms : 'The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last noncontested status which preceded the pending controversy-until the final hearing when full relief may be granted or to compel the