Ajmer Singh vs Improvement Trust Khanna and Another

N.K. Kapoor, J.—This revision petition is against the order dated 25.2.1995 of Additional Senior Sub Judge declining the petitioner''s application for restoration of possession of property No. SCF 124, Guru Amar Dass Market, khanna.

Plaintiff filed a suit for permanent injunction restraining the defendants, their agents or servants from dispossessing the plaintiff and from interfering in any manner in the possession of the plaintiff illegally and forcibly. The suit was filed on 20.8. 1994. On 22.8.1994 the plaintiff filed an application for appointment of a Local Commissioner so as to prove and protect the present possession. The trial Court appointed Mr. Manjit Singh, Advocate, as Local Commissioner on 22.8.1994 who visited the spot and submitted his report dated 7.9.1994. It is the case of the plaintiff that the defendants forcibly dispossessed the plaintiff on 22.8.1994 in the after-noon and so when the Local Commissioner visited the disputed premises, the same was found to be freshly white washed and outside the property a number of tables, chairs, cooler, bhathi made of drum, ceiling fans, padestal fans etc. were lying scattered; If is in these circumstances that the plaintiff prayed that he be put back in possession till the matter is finally decided by the Court.

In pursuance to the notice issued by the Court, the defendants put in appearance and resisted the application. As per the case set up by the defendants, the plaintiff had banded over the vacant possession of the demised premises voluntarily on 19.8.1994 and so the suit as well as the present application is an after-thought. Since the plaintiff was not in possession on the date he approached the Court, he is not entitled to restoration of possession.

Learned counsel for the petitioner in support of his case made mention of the filing of the suit on 20.8.1994 which was taken up for consideration on 22.8.1994 and as per the request made by the plaintiff, Local Commissioner was appointed on 22.8.1994. According to the counsel, the petitioner was in possession of the suit property on 20.8.1994 and as he has been dispossessed during the pendency of the suit, the trial Court ought to have, in the circumstances of the case, ordered its restoration till the matter is finally decided. Reference was made to the report of the Local Commissioner who observed that the property has been freshly white washed and the words ''Kings Hotel/Kwality Ice-Cream were visible despite this white-wash. Similarly, the Local Commissioner noticed various articles like chairs, tables, cooler, bhathi made of drum, ceiling fans, wooden counter, pedestal fans, curtain rods etc. lying scattered in the open place in front of the property in dispute. Criticising the view taken by the court, the counsel urged that the same is highly conjectural. In fact, as admitted by the defendants also, the plaintiff was in possession as a lessee and so was only served with a notice to quit on 19.81994. Thus till 19.8.1994, it was reasonable to infer that the plaintiff was in possession of the suit property. However, in what manner he gave up his possession is indeed not understandable. The trial, Court has tried to make out a case which perhaps even the defendants did not intend to plead. Similarly, the trial Court observation that since no report had been lodged with the local police or administration is an indication that he was not in possession of the property in dispute is again erroneous. Since the civil court was seized of the matter wherein an application had been filed for interim stay as well as appointment of a Local Commissioner, non lodging of report with the police could not be taken as a factor for declining the petitioner''s just prayer for restoration.

Learned counsel for the respondents, on the other hand, highlighted the fact that the petitioner has been a defaulter. According to the counsel, during all these years, he did not pay any lease money despite a number of notices issued by the defendants in this regard. According to the counsel, notices were sent to the petitioner on 1.10.1993,11.11.1993, 27.7.1994 and 29.7.1994. On account of persistent request, ultimately the petitioner could deposit a sum of Rs. 6000/- only on 3.8.1994. Since the petitioner had no money to pay the lease money, he on his own gave up the possession and so the same was taken by the authorities. The respondents on getting the property in dispute got it white-washed and has given to ''Daftar Nagar Sudhar Ghar, Khanna'' and so when the Local Commissioner visited the spot on 22.8.1994 at 5.30 p.m., the Local Commissioner rightly observed that the property in dispute was in possession of ''Daftar Nagar Sudhar Trust, Khanna''. As regards the various articles which were lying outside the disputed property, the same were to be taken by the petitioner at his own convenience. Thus, there is no basis to infer that the petitioner has been illegally or unauthorisedly dispossessed. Even on merit, the counsel urged that since the Court has found that the petitioner was not in possession of the disputed property on 20.8.1994, his claim for restoration of the property has rightly been declined. In addition to it, the petitioner is guilty of suppressing the other material facts i.e. rejection of his application for interim injunction vide order dated 20.3.1995. Otherwise too, such an order is not revisable u/s 115 of the CPC and so the revision petition deserves to be dismissed.

Admittedly, the petitioner was a lessee of the respondents. According to the petitioner, he remained in occupation of the property till 22.8.1994 when he was evicted unauthorisedly, whereas, according to the respondents, the petitioner gave up possession on 19.8.1994. The respondents have not placed on record any prima facie proof in support of their contention that the petitioner gave up possession voluntarily. Except for verbal assertion, there is no writing in possession of the defendants till today. Whether the petitioner gave up his possession voluntarily at best can be examined when the parties will adduce the evidence before the trial Court ? At the moment, it will be safe to infer that the petitioner was in possession of the property and has been unauthorisedly dispossessed as there is no order of eviction by any competent Court. A person in possession of a property is deemed to continue till evicted in due course of law. In the present case, the petitioner was admittedly inducted as a lessee and continues to be so till 19.8.1994 (as per case of the respondents) and till 22.8.1994 (as per case of the petitioner). It is well settled that a person in possession can be ousted according to law. The apex Court in case reported as Mohan Lal and Ors. v. The State of Punjab and Ors. 1971 P.L.J. 338 has held that

"under our jurisprudence even an unauthorised occupant can be evicted only in the manner authorised by law. This is the essence of the rule of law."

The relief sought by the petitioner is in the nature of interlocutory mandatory injunction i.e. prayer is to relegate the parties the status quo of the last non-contested status, in the instant case August 19, 1994. The apex Court in case reported as Dorab Cawasji Warden Vs. Coomi Sorab Warden and others, , dilated upon this aspect of the matter i.e. when the relief of interlocutory mandatory injunction is to be granted and held as under:-

"The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are:

(1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction

(2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.

(3) The balance of convenience is in favour of the one seeking such relief.

Being essentially an equitable relief the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the Court to be exercised in the light of the facts and circumstances in each case. Though the above guidelines are neither exhaustive or complete or absolute rules, and there may be exceptional circumstances needing action, applying them as pre-requisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion."

Almost similar matter came up for consideration in case reported as Jivanbhai Jerambhai Patadia Vs. Bhavanjee Vinasjee Thakkar, The Court after relying upon the decision of the apex Court referred to above, held as under:-

"True, when there is contest or controversy between the parties about the status, the Court normally refrains from granting the final relief at an interlocutory stage, but Court is certainly entitled to scan the so called defence about the denial of status of tenancy raised by the other side, otherwise Court would be encouraging the dishonest defence and allowing the party to live at the mercy of the opponent till his rights are finalised at the end of the trial and thereafter, in appeal and what not? It is very easy for the opponent in any case to deny the status of one party who goes to Court after doing illegal acts and then to contend that no final relief be granted at an interlocutory stage. The Court in such situation cannot sit and watch the proceedings as a silent spectator and show its helplessness. The Court in this situation can certainly take recourse to the guidelines narrated by the Supreme Court in Dorab Cawasji Warden Vs. Coomi Sorab Warden and others, , namely, whether the plaintiff has a strong case for trial which shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction ? Whether it is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money? Whether the balance of convenience is in favour of the one seeking such relief?

Keeping in view the aforesaid two decisions and in the light of the material which has come on record. I am, prima facie, of the view that it would be more just and appropriate if the petitioner is put in possession of the property which he undisputedly held till 19.8.1994 till the matter is finally decided by the trial Court subject to, however, his depositing all the arrears of rent/for use and occupation of the premises in dispute due towards him till he was allegedly illegally evicted, within two weeks from the passing of this order. Neither the petitioner''s induction in the property in dispute nor any payment made by him towards the alleged rent due will prejudice the case of any of the parties. Accordingly, I accept the revision petition, set aside the impugned order and direct that the petitioner be inducted in the premises in dispute subject to his paying or clearing all the arrears of rent due towards him less the payment already made within two weeks from the passing of the order. The trial Court is further directed to decide the matter expeditiously, preferably within six months.