Besheshar Nath vs Smt. S. Bikram

Sukhdev Singh Kang, J.—Besheshar Nath, petitioner, filed an application u/s 15 of the East Punjab Rent Restriction Act (hereinafter called the Act) for ejectment of his tenant Smt. Surjit Kaur widow of Bakhtawar Singh. Initially, Bakhtawar Singh was the tenant. He died on June 8, 1976, leaving behind his widow Smt. Surjit Kaur, his daughter Smt. S. Bikram and other heirs. The Rent Controller passed a decree for ejectment on the 20th of January, 1979. The appeal filed by Smt. Surjit Kaur against this order was dismissed by the Appellate Authority on the 10th of August, 1979. It has also been stated at the bar that the revision petition filed by her was also dismissed by this Court.

Smt. S. Bikram had filed a suit for injunction restraining Besheshar Nath, petitioner, from ejecting her in pursuance of the decree passed against Smt. Surjit Kaur, her mother, on the ground that she was the owner of the 3/4th share of the suit property and the decree of ejectment had not been passed against her. This suit was dismissed, in default on the 27th of October, 1979. Previously, an ad interim stay order had been granted in her favour.

On the 30th of October, 1979, Smt. S. Bikram filed another suit for declaration that she had inherited the tenancy rights of her deceased father Bakhtawar Singh and was in occupation of the house as a tenant and the order of Rent Controller has no effect on her rights. She also sought an injunction restraining the defendant from dispossessing her in execution of the ejectment order passed by the Rent Controller. She filed an application under order XXXIX, rules 1 and 2 read with section 151 of the Civil Procedure Code, fur issuance of ad interim injunction. An ad interim injunction was granted. However, after the defendant filed a written statement, this temporary injunction was vacated. Smt. S. Bikram filed an appeal against the order. This appeal was accepted by the learned Additional District Judge, Ludhiana. He set aside the order of the trial court and issued an order that the parties should maintain status quo regarding possession. Dissatisfied with this order, Besheshar Nath has filed this revision petition.

Mr. V.P. Sarda, the learned counsel for the petitioner, has strenously argued that the present suit is (sic) one and has been filed mala fide to defeat the decree obtained by the petitioner He has stated that this suit was not competent in view of the provisions of order IX, rule 9 of the CPC The earlier suit on the same cause of action had been dismissed by the trial Court. Therefore, the subsequent suit was not maintainable. He has contended that the case is not covered by order XXXIX, rule 1, Civil Procedure Code, because that rule applies only to these cases where effort is made to take possession of immovable property forcibly and illegally. It does not apply to the case where valid decree has been obtained and possession is sought to be obtained in execution of such decree.

On the other hand, Mr. Vijay Jhanji, the learned counsel for the respondent-plaintiff, has argued that the petitioner deliberately did not implead Smt. S. Bikram as respondent in the ejectment proceedings. After the death of her father, she inherited the rights of tenancy she became a tenant in her own right. It was the duty of the petitioner to implead her. Since be did not implead her, she was not bound by the decree passed against her mother. The earlier suit had been filed for declaration to the effect that she was the owner. The cause of action in the earlier suit was entirely different from the cause of action in the subsequent suit. Order XXXIX, rule (sic), Civil Procedure Code, squarely applies to the facts of the present case. In any case, it is contended by the learned Counsel that there is no jurisdictional error in the judgment of the learned lower Appellate Court and the revision petition is liable to be dismissed.

In view of the authoritive pronouncement of their lordships of the Supreme Court in Damadilal and Others Vs. Parashram and Others, a tenancy is heritable. On the death of Bakhtawar Singh in 1976, Smt. S. Bikram became a tenant in the demised premises. Admittedly, the ejectment orders have not been passed against her. I will not go into the details as to whether the cause of action in the earlier suit was the same as the one in the latter suit. However, one fact is manifest that in the earlier suit Smt. S. Bikram had claimed to be the owner to the extent of 3/4th share in the demised premises but in the second suit she has sought relief in the capacity of a tenant and not as an owner. By Act 104 of 1976, clause (c) has been added to Rule 1, order XXXIX, Civil Procedure Code, and it reads as under:-

that the defendant threatened to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit.

No doubt, earlier, it was the view of this Court as enunciated in Shankar Singh v. Firm Sudarshan and Co. (1968) 78 P.L.R. 354, that the word "injury" as used in Order XXXIX, Rule 2, Civil Procedure Code, means an act which is contrary to law and where a person was trying to obtain possession of land in pursuance of an order of a Court while so doing, cannot be said to be acting contrary to law. However, after the amendment the law has undergone a change.

Mr. Sarda has contended that even after the amendment, the remedy only against apprehended forcible possession has been provided. The words in clause (c) only mean that the defendant threatened to take forcible possession. I am afraid there is no merit in this contention. The Legislature in its wisdom has not chosen to use the word "forcible" in Rule 1. The matter is not res integra. It was held in Madan Mohan v. Revti Prasad (1978) 1 R.C.R. 175 :-

The provisions of order 39 Rule 1 of Civil Procedure Code, have recently been amended by the CPC Amendment Act (Act No. 104 of 1976) by the inclusion of clause (c), obviously this amendment has been made for the purpose of including within the purview of provisions of Order 39 Rule 1. C.P.C. such suits where the defendant threatens to dispossess the plaintiff or otherwise cause any injury to the plaintiff in relation to any property in dispute in such suit. It appears that the legislature felt that such, a suit should also he covered by the provisions of order 39 Rule 1 C.P.C. and by the inclusion of clause (c) in order 39 Rule 1 C.P.C. maintenance of status quo in respect of possession of immovable property could also he one of the circumstances in which a civil court may be entitled to issue a temporary injunction under that provision.

Even otherwise, the interpretation suggested to be put on Rule 1, will render the provision nugatory. If a decree is passed against "A" and the property in fact belongs to "B", who is in possession of the same, then "B" while filing the suit for declaration can surely ask for relief of injunction against his dispossession. If that were not so it will perpetuate injustice. To remove any doubts this provision has been engrafted on Order 39, Rule 1, Civil Procedure Code. A plaintiff can seek an injunction against a defendant, who wants to dispossess the former even though in execution of the decree if he can make out a case for grant of the same.

Mr. Sarda then contended that the plaintiff did not deserve the equitable relief of injunction, because she had not come to court with clean hands. This argument is also without any merit. There is no evidence on the file that the petitioner knew about the ejectment proceedings. She had clearly stated in the second suit regarding the filing of the previous suit.

There is no merit in this revision petition and and the same is dismissed. However Smt. S. Bikram shall deposit Rs. 300/- per annum in the trial Court for the use and occupation of the premises in dispute within a month from today and then by the 31st of January of every year during the pendency of the suit. If the plaintiff fails to deposit this amount, the injunction granted in her favour shall stand vacated. No costs.