RAM I LAL MAHINDAR KUMAR Vs. NARESH KUMARI

JUDGEMENT

(1.) This Revision Petition under Section 1 15 of the Code of Givil Procedure (for short 'the Code') is directed against the judgment and order dismissing the petitioners' application for grant of temporary injunction. The other Revision Petition (C.R. 288 of 1982) is directed against the judgment and order dismissing their application for leave to amend the plaint. This judgment will dispose of the two revision petitions.

(2.) The registered partnership firm Ramji Lal Mahinder Kumar, plaintiffs-petitioners above named, on 24th January, 1981 filed a suit for permanent injunction against Smt. Naresh Kumari Sharma (respondentdefendant No. 1) and M/s. Bhagwan Dass Jagan Nath (respondent-defendant No. 2). The plaintiffs have alleged that the firm Ramji Lal Mahinder Kumar has been tenant in the shop along with roof bearing Municipal No. 635, Chandni Chowk, Delhi, that the building is a single storeyed building and plaintiffs have been using the said shop and the roof for the last more than 38 years, that defendant No. 1 approached for enhancing the rent from Rs. 130.00 to Rs. 200.00 but they refused, and defendant No. 1 in collusion with defendant No. 2 threatened to take possession of the open roof by force and to raise unauthorised construction over the roof and thus prevent the plain- tiffs from the use of the tenanted portion without any just, and sufficient cause, that the property bearing Municipal Nos. 634-635 is a composite property under the Evacuee Interest (Separation) Act 1951, that defendant No. I has no right, title or interest in the property and that the plaintiffs approached the defendants not to interfere with their possession of the shop and roof. The plaintiffs thus prayed for an injunction restraining the defendants from taking forcible possession of the shop and the roof otherwise than in due course of law and from causing any interference in their peaceful use and enjoyment of the tenanted premises in any manner whatsoever. An application under Order 39 Rules 1 and 2 of the Code for grant of temporary injunction restraining the defendants from taking forcible possession of the said shop and roof and from raising any construction on the said roof was also made. On 24th January, 1981 an ex-parte injunction was issued restraining the defendants from dispossessing the plaintiffs from the roof and from raising any construction on the roof of premises No. 635, Chandni Chowk, Delhi till further orders. The trial Court had also appointed a Local Commissioner to inspect the roof in question and to report about the existing position and possession. The Local Commissioner inspected the premises on 24th January, 1981 at 5 P.M. He has reported that the roof over shop Nos. 634 and 635 is vacant and can be used by the occupants of shop No. 633 as the door of the structure above his shop opens towards the connected roofs of shop Nos. 634 and 635, and that the door of property No. 636 also opens towards the roof of property No. 635.

(3.) The defendants filed their separate written-statements on 18th February, 1981. Defendant No. 1 has pleaded that plaintiffs' firm Ramji Lal Mahinder Kumar was not her tenant, that 'M/s. Ramji Lal Tirlok Chand' has been her tenant in shop No. 635, Chandni Chowk, Delhi but the said firm has not been a tenant with regard to the roof over the shop, that the other two shops No. 634-A and 634-B Chandni Chowk, Delhi are in occupation of other tenants under her, that there has been a room on the roof of shop Nos. 634-A, 634-B and 635 in continuous use of defendant No. 2, and the first floor of the aforesaid shops was let to defendant No. 2 for which rent receipts were issued and a formal agreement of letting was executed, that she has every right to let the first floor and has rightly let to defendant No. 2, that the plaintiffs have demolished the structure over the said roof.