Om Parkash vs Kishan Chand and Others

Sarojnei Saksena, J.—Petitioner plaintiff-tenant has, assailed the trial Court''s outer dated 17.5.1996, whereby this petition filed the suit u/s 151 read with Order 26 Rule 9, Civil Procedure Code, is being disallowed.

Succinctly facts of the case are that the plaintiff-petitioner filed the suit u/s 6 of the Specific Relief Act alleging that he was a tenant on first and second floor of the disputed property No. 148/6-A situated in Chowk Kuluwala, Peeri Gali, Amritsar since 1952. For 15 days he went out of Amritsar in the month of November, 1993. On 22.11.1993 when he came back he found that the defendant-landlords have broken the lock of the premises and have removed his stocks: and thus, have; forcibly occupied the premises. He made, report to the police, but no action was taken by them. He filed this suit on 1.12.1993 claiming restoration of possession of the demised premises Along-with this suit he also filed the petition under order 39 Rules 1 and 2, Civil Procedure code, restraining the respondent-landlords from transferring or parting with the possession of the premises to any third person, that petition was decided on 1.2.1996. After ad interim injunction was granted, the defendant-respondents started taking steps to use the premises for their own use and occupation. On 11.5.1994 the plaintiff-petitioner filed an application for locking and sealing the premises through the Local Commissioner so that the defendant-respondents may not take undue advantage of forcible dispossession of the plaintiff-petitioner. This petition was dismissed by the impugned order.

The petitioner''s learned counsel relying on M/s Batliboi & Co. Ltd. v. K. Verma 1993(1) RRR 265 and Samir Sobhan Sanyal Vs. Tracks Trade Pvt. Ltd. and others, strongly stressed that the plaintiff-petitioner was occupying the demised premises as a tenant. During his absence, the defendant landlord forcibly dispossessed him. No doubt, the trial Court restrained them front creating third party rights by leasing it out or transferring-it to any other person, but it has. dismissed his petition filed u/s 151 read with Order 26 Rule 9, Civil Procedure Code, whereby he prayed that the premises be locked so that the landlord-defendants may not enjoy the fruits of their illegal action.

Respondents'' learned counsel relying on Smt. Harvin Kaur v. Godha Ram and Anr. 1979 PLJ 562 and Pritam Singh and Another Vs. Sunder Lal and Others, contended that since the plaintiff- petitioner''s petition filed under Order 26 Rule 9, Civil Procedure Code, was dismissed by the impugned order, this revision assailing the same order is not maintainable. No doubt, in these authorities, it is held that the order passed under Order 26 Rule 9, Civil Procedure Code, refusing, to appoint a Local Commissioner is not revisable as the impugned order does hot decide any issue nor adjudicates the rights of the parties for purposes of suit.

In M/s Batliboi''s case (supra), a Single Bench of Delhi High Court considered identical facts. In that case also, the landlord physically dispossessed-his tenant, the tenant filed civil suit u/s 6 of the Specific Relief -Act for delivery of possession; the court observed that the status quo cannot be maintained, as it would give advantage to the landlord of his wrong. Hence, the direction was issued that the premises be sealed under the seal of Registrar of the High Court during pendency of the suit. The Apex Court also considered such facts in Sri Samir Sobhan''s case (supra): In that case, without any decree or order of eviction of the appellant-tenant from the demised premises, he was unlawfully dispossessed from the premises without any due process of law. He filed the petition under Order 21 Rules 98 and 99, Civil Procedure Code. The question was whether he should be allowed to remain in possession till his application under Order 21 Rules 98 and 99, Civil Procedure Code, is adjudicated upon and order is made. Repelling all the contentions made by the decree-holder''s learned counsel, the Apex Court held "since the letter of the law should strictly be adhered to, we find that high-handed action taken by the respondent Nos. 1, 3 and 6 in having the appellant dispossessed without due process of law cannot be overlooked nor condoned. The court cannot blink at their unlawful conduct to dispossess the appellant from demised property and would say that the status quo be maintained. If the Court gives acceptance to such high-handed action, there will be no respect for rule of law and unlawful elements would take hold of the due process of law for ransom and it would be a field day for anarchy. Due process of law would be put to ridicule in the estimate of the law-abiding citizens and rule of law would remain a mortuary". Hence, respondent No. 1 was directed to put the appellant-tenant in possession within 24 hours.

Respondents'' learned counsel contended that the tenant willingly handed over the possession of the demised premises to the respondent-landlords, who got a receipt executed by him. He also obtained huge sum of money for vacating the demised premises. He also contended that the tenant petitioner filed the applications before the Electricity Board as well as before the Municipality to disconnect the electric connection and water supply in his name. All these facts will be proved by the defendant-landlords at the stage of evidence.

So far as the maintainability of the revision is concerned, plaintiff-petitioner did not file the petition under Order 26 Rule 9, Civil Procedure Code, simpliciter to make a local investigation with regard to any matter in dispute or of ascertaining the market value of any property or amount of any mesne profits or damages or annual net profits etc. In this case, the plaintiff-petitioner filed the said application u/s 151 read with Order 26 Rule 9, Civil Procedure Code, praying that a Local Commissioner be appointed to lock the demised premises. Hence, it was not a petition in the strict sense of the terms under Order 26 Rule 9 Civil Procedure Code, but the inherent jurisdiction of the Court was invoked to pass such an order. Hence, in my considered view, the revision against the impugned order is maintainable.

Without expressing any opinion on the disputed facts of the case, since the plaintiff-petitioner owner is dispossessed from the demised premises and on his application filed under Order 39 Rules 1 and 2, Civil Procedure Code, the defendant-respondents have been restrained from letting or transferring the disputed property to third party and as, admittedly, the defendants-landlords have started using the premises for their own purposes, it will be in the fitness of things that the demises premises is kept locked till the decision of the case. The case is at the evidence stage.

Hence, the revision is allowed; the impugned order is set aside. The lower court is hereby directed to get the premises locked within 3 days of the receipt of copy of this order and to proceed with the trial and to conclude it expeditiously, preferably within three months.