KISHORE KUMAR KHAITAN Vs. PRAVEEN KUMAR

JUDGEMENT

(1.) The respondent herein, hereinafter referred to as the plaintiff, filed a suit TS No. 119 of 1998 before the Civil Judge, Junior division, Howrah for a declaration of his status as a tenant of the suit property and for a perpetual injunction restraining the appellants herein, hereinafter referred to as the defendants, the owners of the building, from interfering with the peaceful possession of the plaintiff and for other incidental reliefs. Along with the suit, the plaintiff moved an application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure (hereinafter referred to as the 'code') , for an interim injunction pending the suit, restraining the defendants from interfering with his possession of the plaint schedule property. When the application for interim injunction was moved on 12.6.1998, the trial court found that there was no urgency which justified the grant of an ad-interim ex parte order of injunction and taking the view that the delay will not defeat justice, refused to pass an ad-interim order of injunction and issued notice to the defendants to show cause within 15 days of the receipt of the notice, as to why the temporary injunction, as prayed for by the plaintiff, shall not be granted. Feeling himself aggrieved by the non-grant of an ad interim ex parte injunction, the plaintiff filed an appeal under Order 43 Rule 1 of The Code of Civil procedure before the District Court. The additional District Judge on 19.6.1998, while entertaining the civil miscellaneous appeal admitted the same and issued notice to the defendants fixing 4.9.1998 for their appearance. After allowing an application for amendment of the application for injunction by way of incorporating a schedule thereto, the Additional district Judge along with the issuance of notice to the defendants to show cause why the prayer for temporary injunction shall not be granted, stating that in the light of the materials available it was just and proper to direct the parties to maintain the status quo as on date and delay in the grant of an ad-interim order may cause complications, passed an ex parte ad interim order directing both the parties to maintain status quo as on that day till 17.7.1998. Thereafter alleging that he was in possession on 19.6.1998 when the order to maintain status quo was passed by the additional District Judge and that he was dispossessed on 20. 6.1998 in violation of that order, the plaintiff filed an application under Section 151 of the Code for an interim mandatory injunction directing the defendants to put him in possession of the suit premises. The district Court originally passed an order of interim mandatory injunction directing the defendants to restore possession of the suit property to the plaintiff. This was challenged by the defendants before the High Court in a proceeding under Section 115 of the Code. The high Court set aside the order of the trial court and remanded the application for interim man- datory injunction for reconsideration by the district court. Thereafter, the District court reconsidered the application for interim mandatory injunction and allowed the same by upholding the claim of the plaintiff that he was dispossessed after the interim order of status quo was passed by that Court. A challenge by the defendants to that order before the High court under Article 227 of the Constitution was rejected by the High Court. This appeal by special leave is filed by the defendants challenging those orders.

(2.) We may note two incidental facts at this stage. The first is the filing of a suit TS No. 153 of 1998 by the present defendants for a declaration that the document relied on as a rent deed by the present plaintiff, be adjudged void and cancelled and for consequential reliefs flowing from the grant of the main relief. The second is that even though the petition for special leave to appeal against the order of the High Court dated 25.11.2004 was filed in this Court on 31.3.2005, in enforcement of the order of the District Court under challenge in this appeal, possession was delivered over to the plaintiff on 8.4.2005 through the process of court.

(3.) It is the case of the plaintiff that the suit property was leased to him by the first defendant on 17.4.1998 and that the transaction was evidenced by writing in the letter-head of Khaitan Paper Machine Limited owned by the first defendant. According to the plaintiff, there was an earlier litigation between the first defendant and one Shivanand Mishra, shivanand Mishra claiming a tenancy over a portion of the present suit premises and at the instance of the present plaintiff, that suit was compromised, as part of the compromise a sum of Rs. 2 lakhs was paid to Shivanand Mishra and Shivanand Mishra gave up his claim of tenancy. According to the plaintiff, the said sum of Rs. 2 lakhs which was paid to Shivanand mishra was advanced by him to the first defendant and it was in consideration of the same and the help rendered by the plaintiff in the matter of settling the dispute with Shivanand mishra, that the first defendant agreed to handover possession of the suit premises to the plaintiff immediately after recovering possession from Shivanand Mishra and it was in furtherance of the promise that the tenancy agreement was executed on 17.4.1998. Thus, the plaintiff claimed that he had been put in possession of the suit property as a tenant. In derogation of the tenancy thus created in his favour, the defendants were attempting to dispossess the plaintiff forcibly and it was in that situation that the plaintiff was filing the suit for a declaration of his tenancy rights over the suit property and for a perpetual injunction restraining the defendants from interfering with his possession as a tenant. As already noticed, though the plaintiff filed an application under order XXXIX Rules 1 and 2 of the Code for an interim injunction restraining the defendants from interfering with his possession, the trial court did not pass an ad interim order of injunction, but only issued notices to the defendants calling upon them to show cause why the prayer for injunction shall not be granted. It is against this refusal of ad interim injunction ex parte, that the plaintiff filed the appeal before the District Court in which, on 19.6.1998, the Additional District Judge passed an ad interim ex parte order directing both the parties to maintain status quo.