LAKHA SINGH Vs. SOM NATH

JUDGEMENT

(1.) This first appeal is directed against the judgment and order of the Additional District Judge dated 25 August 1981 restraining the appellant -defendant from taking possession of Plot No. 65 -A, Harisapuri, Rampur, Main Road, Tri Nagar, Delhi in execution of the decree passed in his favour against the respondent/plaintiff and another in suit No. 450 of 1977 by Shri Shiv Charan, Sub -Judge, Delhi on 25 October 1979. Learned Counsel for the appellant, submits that the impugned order could not have been issued against the appellant under Order 39 Rules 1 and 2 of the Civil P.C. as the said provisions were not applicable and that even under inherent powers the trial court ought not to have exercised discretion in favour of the plaintiff.

(2.) Briefly the facts are that the appellant is the owner of the plot of land in suit. He let out the same to one Ravi Dutt in 1972 in terms of a rent note. Ravi Dutt, tenant sublet, assigned or otherwise parted with the possession of the plot to Som Nath, respondent. A notice of eviction was served upon the tenant terminating his tenancy. In 1977 the appellant filed a suit for possession against his tenant Ravi Dutt as well as sub -tenant Som Nath respondent. The suit was resisted but a decree for possession was passed by the trial court on 25 April 1979 which was confirmed by the Additional District Judge and this Court.

(3.) The appellant decree -holder on 2nd November 1979 took out execution for obtaining possession but he was resisted by the respondent. He applied for police aid for obtaining possession which was sanctioned on 23rd January 1981. Arrangement was being made to provide police aid but before it could be arranged the respondent on 28 March 1981 filed the suit for declaration, that the agreement to sell dated 9 March, 1981 between the appellant and the respondent was valid and binding and for an injunction restraining the appellant from executing the said decree for possession obtained by him. He also made an application for the grant of a temporary injunction out of which this first appeal has arisen. The appellant in the written statement took various objections including the objections that the suit for declaration and injunction was not maintainable. The plaintiff then sought leave to amend the plaint and prayed for, the additional relief of a decree for specific performance of the said agreement to sell. The amendment was allowed.