Jai Prakash Goyal vs Manoj Kumar & Ors

Lok Pal Singh, J

Heard Mr. Vipul Sharma, Advocate for the petitioner and Mr. Siddhartha Singh, Advocate for the respondent no.5. Although Vakalatnama has been filed by Mr. Pankaj Miglani, Advocate on behalf of respondent nos.1 to 4, but he states that now he has no instructions in the matter.

This writ petition has been filed by the petitioner seeking the following reliefs:-

i) Issue a writ, order or direction in the nature of certiorari to quash the impugned order dated 17.10.2006 passed by District Judge, Haridwar in Civil Revision No.53 of 2006 Manoj Kumar and others vs. Jai Prakash and another.

ii) Issue a writ, order or direction in the nature of mandamus commanding the respondent nos.1 and 4 to hand over the possession of the disputed shop to the plaintiff/petitioner.

Brief facts of the case are that the petitioner filed a Civil Suit No.415 of 1999 for permanent injunction against defendants/respondent nos.1 to 4 stating that he has taken an almirah type shop on rent from respondent no.5 but the respondents/defendants are trying to interfere with his peaceful possession and are trying to dispossess him. Along with the suit, the plaintiff filed an ad interim injunction application. The lower court, after considering the prima facie case, balance of convenience and irreparable loss, granted ex-parte ad interim injunction in favour of the plaintiff vide order dated 20.12.1999 and also appointed Court Commissioner to inspect the disputed property. The Court Commissioner submitted its report dated 23.12.2199 stating that the plaintiff is in possession over the disputed property. It is contended that the respondents/defendants nos.1 to 4 took the possession of the disputed property in the absence of the plaintiff. Plaintiff moved an application under Section 151 of C.P.C. stating that despite interim injunction granted in favour of the plaintiff, respondent/defendant nos.1 to 4 have succeeded to dispossess the plaintiff and have taken forcible possession over the tenanted accommodation and thus prayed that the possession of the shop be restored in his favour. Respondent/defendant nos.1 to 4 filed objections to the said application and contended that the application filed by the plaintiff is not maintainable and that plaintiff has not proved that he is in possession over the dispute property since 1991. Respondents/defendant nos.1 to 4 also contended that the plaintiff has filed the suit in collusion with defendant no.5. Lower court, after hearing the parties, vide order dated 13.08.2004, allowed the application of the plaintiff and directed the defendants/respondent nos.1 to 4 to restore the possession of the shop to the plaintiff/petitioner within 15 days. Feeling aggrieved, defendants/respondent nos.1 to 4 filed civil revision no.53 of 2006, which was allowed by the revisional court vide judgment and order dated 17.10.2006.

The revisional court, while setting aside the order dated 13.08.2004, has observed that the defendant/respondent nos.1 to 4 have disclosed about their possession over the dispute property in their written statement, whereafter application has been filed by the plaintiff to restore the possession. It has also been observed that the report of the Advocate Commissioner has not been proved by the parties and that no evidence has been led by the plainitiff to prove that the defendants have taken forcible possession from the plaintiff. The report of Advocate Commissioner is legally acceptable. Objections were not filed by the defendants against the Advocate Commissioner's report. Since the veracity of the report was not challenged by the defendants by filing any objections, the said report has prima facie evidentiary value but the revisional court has ignored it. Besides this, the revisional court, while allowing the revision, has lost sight of the fact that certain documents were filed by the plaintiff in support of his plaint so to show his possession over the disputed property since 1.1.1999. The revisional court did not consider the documents filed by the plaintiff viz. original receipt dated 11.12.19999, photographs and negative in original, original receipts dated 03.06.1999 and 30.03.1999 and copy of F.I.R. In my view, the revisional court has decided the revision without indicating any reason in a cryptic manner. In such view of the matter, impugned order is liable to be set aside.

Accordingly, writ petition is allowed. Impugned order dated 17.10.2006 passed by District Judge, Haridwar is set aside. Defendants/Respondent nos.1 to 4 are hereby directed to restore the possession of the plaintiff within one month from today.

No order as to costs.