Idris and Another vs Md. Shamim Alam and Others

S.S. Ganguly, J.—The relevant facts leading to the present appeal may be summarised as follows:

Claiming to have been dispossed while he was in exclusive possession of a shop-room situated at premises No. 98, Baithak.Khana Road the plaintiff-respondent no. 1 filed Title Suit No. 1259 of 1987 at City Civil Court, Calcutta against the present appellants (defendants Nos. 5-6) and respondents nos. 2 to 5 (defendants nos. 1 to 4) for recovery of possession of the said shop-room u/s 6 of the Specific Relief Act, 1963. The Court ordered issuing of summons fixing 20/11/87 for return and order. A petition for temporary and ad-interim injunction and also for a mandatory order for restoration of possession of the suit room during the pendency of the suit having been moved the Court passed an order for maintaining status quo in respect of the shop-room, and issued notice to show cause. The petitioners entered appearance and showed cause. On the date of hearing this petition for prohibitory and mandatory injunction was heard and disposed of in the absence of the appellants and their learned Advocates and the Court passed an order directing the appellants to make over possession of the suit-room to the respondent no. 1. The appellant preferred an appeal being F. M. A. T. No. 718 of 1988 against this order. This appeal was dismissed by the Appellate Court with the observation that the appellants ought to have made an application before the Id. Trial Court. The appellants filed an application u/s 151 of the CPC in the Court below for recalling the ex-parte order. The Id. Judge rejected this application holding that he had no power to recall his own order. The appellants went up in revision against this order. This petition was also rejected on finding that the petition u/s 151 was not maintainable since the appeal from the selfsame order had been dismissed. Thereafter the appellants filed a petition under Order 39 Rule 4 of the CPC for recalling the order. This petition was also rejected by the Id. Court below upholding its previous order of mandatory injunction on merits. Hence this appeal.

The only point which arises for decision in this appeal is as to whether the id. Trial Judge was justified in passing the impugned order.

The second proviso below Order 39 Rule 4 of the CPC provides that an order of injunction passed after giving to a party an opportunity of being heard shall not be discharged varied or set aside (1) except when necessitated by a change in the circumstances, or (2) unless the Court is satisfied that the order has caused undue hardship to that party. In the case at hand a notice to show cause as regards the petition for temporary injunction was admittedly served on the appellants (see para 4 of petition under Order 39 Rule 4 of the Civil Procedure Code) and no change in the circumstances is pleaded. It remains to be seen, therefore, if the order of mandator injunction has caused undue hardship to the appellants.

The case of the appellants is that Late Shahzada the father of the appellant no. 2 was the tenant of the disputed shop room since 1953 under Haji Quadir Buksh and thereafter under Ziauddin Khoda Buksh and he used to carry on a business in card-board box printing there under the name and style of M/s. Victoria Card Board Box Manufacturing Co. After Shahzada''s death his two widows and his only child the appellant no. 2 became the tenants of the said room and after the death of the two widows the appellant no. 2 become the sole tenant of the same. Jane Alam the father of the plaintiff-respondent, Md. Shamim Alam was engaged as manager of the business since 1970. On 19/6/87 on a visit to the disputed shop, the appellants found that Jana Alam was running a parallel business in the selfsame room under the name and style of M/s. Unique Products. They learnt further that besides granting rent-receipts to the appellant no. 2, the landlords were also granting rent receipts to the respondent no 1 for Rs.70/- per month. On learning all this the appellants discharged Jane Alam and took over the management of the business. Ultimately they closed down the business. The case of the respondent no. 1 seems to be that he is the tenant of the disputed shop room, that he was running a business of card-board box printing therein and that the appellants in collusion with the respondents nos..2 to 5 dispossessed him from the disputed shop room.

It appears that both the parties produced rent receipts from the same landlords and trade licences from the same authorities. On a consideration of the pleadings of the parties and other circumstances of the case finding that (1) previous possession of the father of the respondent no. 1 was admitted albeit as manager of the appellant''s father''s business which remained to be provided and that (2) possession of the respondent no. 1 over a portion of the disputed room was admitted by the landlords new (the respondents nos. 2 to 5) as well as old (Ziauddin) and (3) that the trade licences were issued in favour of the respondent no. 1 from year to year, the learned trial Judge held that it was established prima facie that the respondent no. 1 had been in possession of the disputed shop-room and running his business there before he was dispossessed therefrom by the appellants. He also felt that the appellants failed to establish that they had suffered any hardship due to the passing of the order of mandatory injunction. We are of the view that both the conclusions of the learned Trial Judge shall have to be upheld and for the reasons given by him.

Admittedly since 1970 neither the appellant no. 2 nor her father had any possession over the disputed shop room. The father of the respondent no. 1 was in possession of the shop room since that time. The landlords old as well as new granted rent receipts to the respondent no. 1 and admitted him to be tenant of the disputed shop room through in respect of a portion of the same. The trade licences strengthen this conclusion. Besides since it is the admitted case of the appellants that she had learnt about the situation only in June 1987 and that she closed down the business shortly thereafter it be comes difficult to understand how the impugned order has caused undue hardship to the appellants. The order passed by the learned Trial Judge cannot, therefore, be interfered with.

The point is decided accordingly. In the circumstances stated above it is hereby ordered that the appeal is hereby dismissed on contest. The order passed by the Id. Trial Judge is hereby confirmed. The Id. Trial Judge is hereby requested to hear and dispose of the suit as a special case as early as possible and in any way within a period of three months from the date of the arrival of the lower court records at his end. Send the said records along with a copy of this judgment to the learned Court below immediately.