LIBERTY SALES SERVICES Vs. JAKKI MULL AND SONS

JUDGEMENT

(1.) THE plaintiff is the appellant and has Filed this FAO against the order of the learned Single Judge dated 1.10.1996. This order was passed in a group of I.As. and in Suit No. 264/94 which was initially Filed by the appellant in the Court of the Sub-Judge, Delhi for permanent injunction and was later transferred to the High Court and registered as Suit No. 997 of 1996. It was so transferred with a view to be tried along with Suit No. 885 of 1994 Filed by the same appellant in the High Court under Section 20 of the Arbitration Act.

(2.) BEFORE the transfer the plaintiff-appellant obtained an ex parte injunction order on 2.4.94 from the Sub-Judge which was vacated on 15.4.94 by the Sub-Judge. Then plaintiff Filed Suit No. 885/94 under Section 20 of the. Arbitration Act in High Court and again got an interim order 23.5.94 which was made absolute on 1.3.95. Under the impugned-order dated 1.10.96, the learned Single Judge held that the relationship between the appellant and the respondent was not that of sub-tenant and tenant respectively but was that of Agent and Principal. The transferred Suit No. 997 of 1996 Filed by the appellant for permanent injunction was dismissed. But I.A. 4480/96 Filed in that suit by the defendant-respondent against the appellant after transfer of the suit to the High Court for removal of the appellant's furniture and unsold stock and decorative material from the shop was allowed. Similar application, namely, IA 2417/96 Filed on 11.3.96 by defendant against appellant in Suit No. 264/94 before the transfer of the suit to the High Court was also allowed. I.A. 4442/996 Filed by the owners (i.e. landlords of the defendant-respondent) for impleadment was also dismissed. FAO 231/96 (being M.C.A. 1129/94 on transfer) Filed by the plaintiff-appellant was also dismissed. Against the common order dated 1.10.1996, of the learned Single Judge, this single appeal has been Filed by the plaintiff. There was some dispute as to how there could be a single appeal or at any rate against FAO 231/96 but without going into the respondent's contention as to maintainability of a single appeal, we are going into the merits inasmuch as against the order in IA 4480/96 and against Final order in IA 2417/96 in Suit No. 997/96, this appeal is anyway maintainable. The brief case of the appellant in the plaint in Suit No. 264/94 for permanent injunction (transfer Suit No. 997/96) is that the respondent (who in turn is a tenant from the owners of the shop) had leased the shop to the appellant Firm as per the written agreement dated 5.1.1992 for the period 21.2.1991 to 31.3.1994. Appellant says that even though the agreement is described as one of "agency" in which the appellantplaintiff is described as "Principal" and the respondent-defendant is described as the "Agent", still the agreement is one of tenancy in favour of the appellant by the respondent and that it was deliberately camouflaged as an "Agency" agreement. Appellant also contends that the appellant was in exclusive possession as a tenant of the respondent paying a minimum rent of Rs. 30.000 during 1991-94, that at the expiry of the period, respondent demanded Rs. 60,000 p.m. and as the appellant did not agree, respondent threatened on 31.3.1994 and 1.4.1994 to dispossess the appellant forcibly. Hence, the suit was filed for permanent injunction. The case of the defendant-respondent was that the agreement dated 5.1.1992 was an agreement of Agency, the appellant (the owner of the goods in the shop) being the principal and the respondent(the tenant from the owners) being-the Agent. The agreement was not one of lease in favour of the plaintiff-appellant. Appellant is estopped from contending that it is a lease. The respondent's further case is that the appellant was supplying goods to the respondent on consignment basis and respondent, as agent, was selling them on commission. The salesmen and staff are the employees of the respondent and were registered with Employees Provident Fund Scheme, 1952, Family Pension Scheme 1971 as the employees of the respondent. They were drawing salaries from 1st defendant. The respondent was remitting the sales-proceeds to the appellant. The respondent was paying the electricity bills, water bills and maintaining telephones "in its own name". There is no question of a "minimum" rent of Rs. 30,000. (i.e. the commission received by respondent varied from month to month). The fact that the appellant registered itself under Delhi Sales Tax Act and Central Sales Tax Act or under Income Tax Act giving address at the premises No. E-27, Connaught Place was irrelevant tenancy cannot be created by an unilateral act of the appellant. The respondent is also registered under Delhi Sales Tax Act and Central Sales Tax Act and has been paying sales tax in respect of sales conducted by respondent. The Agency agreement expired on 31.3.1995 and appellant was asked to remove the goods. There was no question of taking forcible dispossession inasmuch as appellant had no possession. The respondent was in exclusive possession and control of the premises. The appellant-principal was not required to conduct business nor did they, in fact, conduct any business. Appellant was merely supplying goods to respondent (Agent) and respondent was selling the same. Appellant is bound to remove his goods on expiry of the agency agreement. The learned Single Judge came to the conclusion that the agreement was one of Agency and not one of tenancy, that appellant was estopped from pleading tenancy. Learned Judge noticed that the claim of the respondent was that the average commission upto 31.3.1994 was Rs. 40,854.3? p.m. for the period ending 31.3.1995 was Rs. 44,939.81, for the period ending 31.3.1996 was Rs. 49,433.79, the amount due upto 31.3.1996 was Rs. 11.32,483.38, the sum of Rs. 5,40,000 was received upto September, 1995 and balance due was Rs. 5,92,483.38, reimbursement of expenses incurred between 1.4.1994 to 31.3.1996 at Rs. 20,000 p.m. - Rs. 4.80,000, compensation for delay, harassment was Rs. 2 lakhs, in all Rs. 12,72,483.38 was due to the respondent and that the parties intended respondent to carry on business in the premises, respondent being in possession of premises. Plaintiff was to receive the balance sale proceeds of goods after respondent deducted commission. The question as to who was in possession had to be determined on basis or agreement and not on basis of Local Commissioner's report. Plaintiff was to sell goods through respondent-agent. After thus holding against the appellant, the learned Single Judge rejected the claim of respondent for commission at more than Rs. 30,000 p.m. by appellant to respondent. However, while dismissing the appellant's suit, the IA filed by defendant-respondent for directing appellant to remove the appellant's goods, was allowed. One of the controversies is with reference to allowing these applications of the defendants. In this appeal, the same points have been urged by the appellant's counsel as were argued in the trial court. It was pointed out that the appellant was not precluded from contending that the agreement was a tenancy agreement, that the Local Commissioner's report had to be accepted, that the relationship was one of tenancy at a minimum monthly rental of Rs. 30,000, that appellant was factually in exclusive possession, that the staff in the shop were employed by the appellant, that the furniture etc. were of appellant, that though the respondent paid the telephone bills, electricity, water bills etc, the same were reimbursed by appellant, that the documents Filed by appellant prove appellant's possession, e.g. Annexures P 19 to P 50, advertisements were to be made by respondent (Agent), but the expense was tor be borne by the appellant (Principal), and that respondent was having only symbolic possession. It was argued that upder identical circumstances; it was held in Intercraft Limited vs. Capital Boot House & Ors. (1995 (59) DLT 774) that the relationship could not be as Principal and but was one of tenant and landlord. Learned counsel for the respondent has contended that the document is an Agency agreement and that appellant is estopped from contending to the contrary. It is also pointed out that in the second suit i.e. under Section 20 Filed by the appellant, Suit No. 885/94, there was an interlocutary order dated 1.3.1995 recognising prima facie possession of appellant but on appeal, the same was set aside by the Supreme Court in SLP(C) No. 10466 of 1995 on 2.11.1995, and that the said order of the Supreme Court operates as res judicata and is also binding on this court. The entire expenses are borne by the respondent, including telephone, electricity, staff salaries etc. and not by the appellant. On the basis of the above contentions of the counsel, the following points are for consideration: (1) Whether the appellant was precluded from contending (a) that the agreement was one of tenancy and not of agency or (b) that the deed is a sham or camouflage as between parties but was implemented so far as third parties were concerned? (2) Whether on a proper construction of the agreement, the deed was in substance a lease and not an agency agreement? (3) Whether the learned Single Judge had powers to allow IA 4480/96 filed by defendant directing appellant to remove the goods, furniture and decorative material and whether this amounted to passing a decree for possession in favour of defendant and against the appellant without the defendant filing a separate suit? Point 1 : Now if a document between two parties was intended to be a sham document, that would mean that it was indeed never intended to be operative at all and its terms would, as a fact, never have been implemented as between parties. But in the case before us, parties are doing business in a public place, maintaining accounts, Filing returns before various public or statutory authorities, like PF, ESI etc. or Sales Tax authorities and keeping accounts. If these documents reveal the manner in which the business in various goods belonging to the appellants was being conducted in the shop belonging to the respondents and if the appellant-principal who was claiming to be a tenant was not paying rent but the respondent was receiving commission or was deducting commission from the sale-proceeds, and the commission was varying from month by month, subject of course to a minimum of Rs. 30,000, then it is not possible for the appellant to contend that the document remained a sham document as between parties. The facts stated above would in fact, mean that the deed was implemented not only so far as outside world was concerned but also as between parties. Again one can understand an independent plea that the document, in substance, taken as a whole, was not an agency but a "tenancy" (This aspect is being dealt with as Point 2) but not that the document was a sham between parties but true so far as the outside world was concerned. Learned counsel sought to rely upon the Local Commissioner's report to say that appellant's partner was in physical possession of the shop and was carrying on the business. The fact remains that appellant had asked for an ex parte appointment of a Local Commissioner. The fact that appellant's partner was having some keys and was sitting at the counter is not, in our opinion, very significant when it is seen that records are clearly maintained, pursuant to the document as if appellant was the principal and respondent was the agent, receiving commission. The books of accounts, the invoices and the vouchers show the real nature of the business and are in conformity with the agreement of agency. Hence, the Local Commissioner's report cannot help the appellant. We therefore hold that the appellant is precluded from contending that the deed of Agency was a sham document and that it was a tenancy agreement. Hence this point I is held against the appellant. Point 2: We shall now deal with the question whether the document is, in substance, a lease or agency. We shall have to refer to the various clauses in the deed. Clause 2 contemplates appellant principal) supplying goods to respondent (agent); clause 3 says respondent will conduct agency-business under the name 'Liberty' in conjunction with respondent's name 'Jakki Mull & Sons' and respondent will not use the name 'Liberty' independently; clause 4 says respondents can use their remaining part of business without prejudicing the sale products of appellants; clause 5 says appellant (principal) will provide furniture; clause 6 says the staff to be employed by respondent are to be intially screened by appellant and respondent jointly; respondent shall have exclusive right to remove the employees; clause 7 says that the stocks (which belong, to appellant) are to be insured by the appellant, clause 9 says: "Clause 9: That all goods consigned by Principals (i.e. appellants) to Agents (respondents) shall be sold by Agents on prices as are Fixed by the Principals from time to time; these prices will be in competition with general market abiding with government notifications. System of issuing discount on any goods will be. separately decided by the mutual consent of both the parties subsequently." Clause 10 says, all goods shall be sold for cash, but if appellants want respondents to make sales on credit or on approval basis (or otherwise than by cash), the respondent-agent shall not be responsible for the realition of the amount and the respondent shall be entitled to debit the amount of sale to appellant's account and respondent can also claim commission. Clause II says respondent shall furnish a monthly statement to appellant, of expenses and net balance due. Clause 12 deals with commission and says: "Clause 12: That the Agents shall be entitled to receive a commission of IO(ten) per -cent of the gross sales effected at the show room (excluding sales tax levied at the time of sale in the said show room only and not anywhere else) subject to a minimum of Rs. 3.60 lacs (Rupees Three lacs sixty thousand only) per annum." The above principle will not apply to clearance sales when only 2-1/2% commission is allowed. Clause 13 says Agent is to maintain regular accounts of sales and deposit in a bank account to be opened by the Agents only and will remit 85% of the sale proceeds to appellant-principal. Again sales tax collected by respondent shall be deposited in a separate account and be paid by respondent to the Sales Tax authorities. The Agent is solely liable for the sales tax. Clause 14 shows the expenses for telephones, salaries, taxes or repairs shall be paid by respondent and reimbursed by appellant. Clause 17 says all expenses of advertisement are to be borne by appellant and shall be issued in the name of Agent-respondent and clause 17 says that "... any deviation from this will be subject to specific written consent of Agents in all individual cases. Also the Principals shall inform the Agents of all publicity programmes in writing in advance. Clause 18 preserves the right of inspection by appellants-principals of the show room at any time to ensure proper maintenance of show room, proper sales men are engaged by respondent and sales by respondent-agent are conducted effectively. Clause 20 says: "That in the event of a breach of the terms and conditions contained herein, both parties shall be entitled to terminate this Agreement." Clause 21 provides that on expiry of term of agreement, appellants-principals shall be allowed to remove their furniture decoration etc. If respondents-agents were to terminate the agreement before expiry of term, the respondents shall pay appellants the sum advanced and spent by appellants-principals.on furnishing.' If appellants revoke the agreement in the middle, appellants shall pay the consolidated commission in lump-sum for the unexpired portion. Till the appellants pay the same, respondents need not return the fittings and stocks, clause 22 is very important and deals with possession being with respondents-agents. It reads as under: "Clause 22: That is a term of the Agreement that the Agents (i.e. respondents) would remain in exclusive possession and control of the premises in question to the complete exclusion of the Principals (i.e. appellants) at all times. No clause of this Agreement would deem to confer any such right on the Principals (i.e. appellants) at any time." On the basis of these clauses, can it be said that the document is one of tenancy in favour of the appellants-principals by the respondents-agents? Now if the appellants were to be tenants of the respondents (i.e. sub-tenants), they must first prove that they are in exclusive possession of the shop. But, unfortunately for the appellants, Clause 22 set out above specifically says that respondents will be in exclusive possession and not the appellants and that appellant will not at any. time be deemed to be in possession: Clause 22 expressly says that it is to be "deemed" that none of the other clauses - not even clause 18 which permits inspection of shop by appellant at any time to see if the shop, staff etc. - can lead to an inference that appellant principal is in possession of the shop. We shall explain the position taking the example of lease and licence. It is no doubt well settled that the nomenclature employed by the partics may not be conclusive while deciding whether the relation between partics is one of tenancy or a licence. One of the important tests is who is having exclusive possession. Even if the document describes the parties as landlord and tenant, if on a consideration of the various clauses, it is to be inferred that the exclusive possession is with the landlord and the tenant is liable to be ejected at any time, the relationship could be not that of tenancy but one of licence. Likewise, if on a consideration of various clauses, it is to be inferred that the exclusive possession is to be with the person described as a licensee then the relationship could not be one of licence but of tenancy. Such questions .of construction arise when the question of exclusive possession has to be decided by referring to various clauses and there is no specific clause as to who is or is to be deemed to be having exclusive possession. But where in a document whether described as a lease or licence; there is an express clause as to who is or is deemed to be in exclusive possession, the question of drawing an inference from a reading of all the clauses does not at all arise. On the same principle, when there is a dispute as to whether the deed is one of Agency or lease, the absence of a clause as to who is or is deemed to be in exclusive possession, an inference as to exclusive possession has to be drawn by reading all the clauses. But where there is a specific clause dealing with the question as to who is or is to be deemed or not to be deemed to be in possession, there is no need to have resort to all other clauses the document. Applying the above principle, we find that there is a specific Clause, namely Clause 22, staling that the exclusive possession will be with the Agent (respondent) and also that the Principal (Appellant) shall not be "deemed" to be in possession because of any other clause or clauses. In such a situation, it is, in our opinion, not a matter for construction or inference of possession to be drawn from other clauses. It is a case where it is said that appellant (Principal) is not to be deemed to be in possession. The latter part of clause 22 in fact, reads: "Clause 22............ No clause of this Agreement would deem to confer nay such right (i.e. as to exclusive possession) on the Principals (i.e. appellants) at any time." and the said clause, in our view, puts the matter beyond all controversy and precludes any argument -to the contrary by the appellant-principals based on other clauses of agreement. If, therefore, the appellant is not only not in physical possession, but is not to be. deemed, under any circumstances, to be in physical possession, and if there is no fixed rent payable but the respondent-Agent is to get commission variable from month to month, - subject to a minimum of Rs. 30,000 p.m., - and if various matters dealing with the commission of the agent, the advertisements are specified and if the dues of the staff, telephone, electricity etc. were to be paid by the Agent (though entitled to be reimbursed by the principals) such reimbursement in our opinion is part of the contract of agency and will not result inshifting the primary liability of payment therefor to the appellant and cannot convert a principal into a tenant. In our view, it is clear from the document that the Agent-respondent is primarily liable to pay these charges and is entitled to be reimbursed by the appellant. That is to say, the reimbursement clause is part of a package of the terms contained in the agency agreement. Again the PF and ESI are paid by the respondent. In form and substance therefore the document is truly one of Agency and can, by no stretch of imagination, be treated as a tenancy in favour of the appellant. So far as- the decision of a learned Single Judge in Intercraft vs Capital Boot House & Ors. 1995(59) DLT 774 is concerned, we do not propose to deal with it as, it is stated, that an appeal is pending against the said judgment. Point 2 is held accordingly. Point 3: This relates to the allowing of the IA of the respondent-defendant against the appellant for removal of goods. It is true that when a suit for injunction is field by a plaintiff against a defendant, normally, the defendant cannot get a decree for possession against the plaintiff. But, question is whether there are any exceptions to this rule. Learned counsel for the defendant pointed out that the agreement had come to an end on 31.3.1994 and the suit had been Filed by appellant for injunction in April 1994 in the court of the Sub Judge (later it was transferred to the High Court) and ex-parte injunction had been granted against respondents on 2.4.1994. The respondents filed written statement and reply in the I.A. contending that there was no tenancy and it was only an agency agreement. The learned Sub Judge vacated the temporary injunction on 15.4.1994. An Appeal M.C.A. 112/94 was filed before Senior Sub Judge and a "status quo order" was granted on 19.4.1994. This appeal was transferred to High Court as FAO 231/96. Meanwhile, appellant also filed the other suit 885/94 under Section 20 of the Arbitration Act in this Court and obtained an interim order, in the nature of a temporary arrangement on 23.5.94 as follows: "Counsel for the plaintiff states that they have been tendering money payable every month to the defendant, but the defendant has not been accepting since the filing of the suit. Mr. Malhotra states that the defendant, who has been all along in possession of the suit premises and in fact the employees are his employees and he is paying their salaries and all out goings of the staff, which are reimbursed by the plaintiff under the impugned agreement. Be that as it may, I direct that the Plaintiff should pay to the defendant in the manner he was paying under the agreement dated 31.3.1994 and this payment shall be without prejudice to the rights and contentions of both the parties. The defendant will have a right to take daily account of the daily sales to enable him to know as to what amount is payable to him. The defendant shall continue to enjoy all rights, which are provided for under the said agreement. He will also have a right to visit the premises at any time during the shopping hours, but he will not interfere with the conduct of sales of the products. This arrangement shall continue till further orders. List the case on 29th July, 1994." Thereafter the said interim injunction was affirmed, with slight modification by another learned Judge on 1.3.95, staling that prima facie the appellant was in physical possession and will continue in possession. If the agreement dated 23.5.1994 does not work, then the appellant might either tender Rs. 30,000 p.m. by cheque or draft etc. or deposit the same in Court. Appellant was to file an undertaking into Court to compensate respondent for such amount as the Court may assess if the petition filed by them is dismissed. . - This latter order dated 1.3.95 was appealed against by the respondents before the supreme Court in SLP(C) 14065/95. The Supreme Court allowed the appeal on 2.11.95 and passed the following order: "Leave granted. Having heard both sides, we are satisfied that in the facts and circumstances of the case, the interim order dated 1.3.1995 made by the High Court which has the effect of recognising the prima facie .possession of the property with the respondent and permitting its continuance subject to payment of Rs. 30,000.00 per month as rent to the appellant is not justified. Even the tentative finding on the question of possession of the disputed property may have an impact on the merits of the other points involved for decision between the parties in this and other litigations between them. The facts do not justify grant of the equitable relief of temporary injunction in this case. We refrain from mentioning or commenting upon the detailed submissions made by both sides since these matters have to be decided on merits in the first instance by the Court below. For the above reasons the appeal is allowed and the impugned order in so far as it relates to making an interim order in the nature of injunction is set aside." The above orders would, in our view, reveal .that though the agreement expired on 31.3.94, the appellant obtained a series of interim orders on the first suit 264/94 on 2.4.94 from the Sub-Judge (before transfer) and it was vacated on 15.4.94. In MCA 1129/94 filed by appellant before Senior Sub-Judge, status quo order was obtained on '19.4.94. (MCA) also was transferred to High Court as FAO). Meanwhile, appellant filed Suit No. 885/94. in High court and obtained interim arrangement order dated 23.5.94 which was modified on 1.3.95 but the latter was set aside by. Supreme Court on 2.11.95. As on 1.10.96, when the IA 2417/96 was filed in- Suit 264/94 before transfer and IA 4480/96 was filed in same suit after transfer to this court by the defendants for removal of furniture, stock or decorative material, it is obvious that the stock must have been stock brought in after suit and before 1.10.96. Directions issued in the IAs in favour of defendant against plaintiffs to remove such stock in question is, in our view indeed an order in the nature of restitution under Section 151 Civil Procedure Code. So far as the furniture and decorative material is concerned, their removal is incidental to the other directions given, further when suit 885/94 is withdrawn, appellant could not have retained any benefit obtained by interim orders. In any event, there is sufficient legal authority that in certain exceptional circumstance, a defendant can obtain an injunction against a plaintiff. This principle sometimes is applied in our country to interim injunctions i.e. while dismissing the temporary injunction applications of a plaintiff, temporary injunctions have been granted in favour of the defendant against the plaintiff. But the real basis of the principle in England appears to be that it is applied to suits, i.e. while dismissing injunction suits, a decree of injunction is passed against plaintiff and in favour of defendants, in certain situations. In Suganda Bai vs. Sulu Bai (AIR 1975 Kam. 137) which no doubt related to Order 39 proceedings, G.K. Govinda Bhat CJ quoted Collisions vs. Warrens (1901) 1 Ch. 912. There Buckley J. after referring to a number of decisions of the English Courts, quoted Lopes LJ in Carton vs. Fey (1894(2) Ch. 541 (CA) (at 545) as follows: "The question is this whether the defendant can move an injunction against . the plaintiff without filing a counter claim or issuing a writ in a cross action. In my opinion, he can in some.cases, but only in cases where the defendants claim to relief arises out of the plaintiffs cause of action, or is incidental to it." ' . Buckley J, also referred to the view of Davey LJ in Carter vs. Fey to the following effect" "In my opinion, it must be relating to or arising out of the relief sought in the action which is before the Court, and that any other injunction cannot be properly be granted in the action." This case was followed by the Calcutta High Court in Ashis Ranjan Das vs. Rajendra Nath Mullick (AIR 1982 Cal. 529) quoting Lindley L.J. in Carter vs. Fey: "If the defendants application for an injunction were in any way conected with or incidental to the object and purpose of the plaintiffs action, he would have good ground for his contention." It will be noticed therefore that a defendant can move for an injunction against the plaintiff without filing a counter-claim or suit or cross-action provided such a claim to relief arises out of the plaintiffs cause of action or is incidental to it. Halsbury's Laws of England, Vol. 24, 4th Ed, para 1048 refers to these case. It is, as already stated, significant that the principle was applied by the English Courts in the main suit itself for they say that relief can be claimed in the suit by the defendant by filing an application and without a counter-claim or cross-action or by issuing a writ. The condition is that it should arise out of the-plaintiffs cause of action or is incidental to it. In fact, in Collision vs. Warren 1910(1) Ch. 812, both plaintiff and defendant relied upon the same agreement, and it was held that defendant was entitled to apply for an injunction against the plaintiff. In that case, the plaintiff who was the owner of a business of running a hotel appointed defendant as trustee and executed a deed of arrangement describing the defendant as trustee to pay the plaintiffs creditors and agreed to occupy the lease hold house as manager. Later the defendant terminated the plaintiffs services as manager and requested plaintiff to leave the premises. The plaintiff sued for a declaration that he was to be continued as manager and sought for injunction, damages etc. Defendant, gave notice of motion against plaintiff to restrain plaintiff from remaining in or upon the hotel and not to interfere in the management. Plaintiff contended that the defendant's request was in ejectment and could not be granted in plaintiffs suit for injunction. Buckley J. applied Carter vs. Fey(1894)(2) CR. 541 while holding plaintiff has no right to continue in occupation or retain possession held: "What is the defendant's cause of action? It is identically the same thing from the opposite point of view. He negatives the plaintiffs claim to be employed and claims to prevent him from interfering with the management. In the state of things. I think he is entitled to move in the plaintiffs action. It is a novelty to me that an order can be obtained to restrain a person from remaining in a house, which is, of course equivalent to a mandatory order upon him to go out". After referring to Spurgin vs. White (1860) 2 Giff. 473 where such an injunction of a mandatory nature was held could be issued, Buckley J. held: "That appears to me to be a precedent for an order I am prepared to make, which will have the effect of restraining the plaintiff from remaining in possession of the premises." The said order was affirmed by the Court of Appeal, In the same report, by Rigby, Vaughan Williams and Stirling L.JJ. Following the aforesaid ruling, we hold that the relief claimed by the defendants in their IA against the plaintiff arises out of the same contract upon which appellant had Filed the suit and the relief is also incidental to the refusal of the plaintiffs injunction. The learned Judge was right in directing plaintiff to remove its stock, furniture and ornamental items. Point 3 is held against the appellant. In the result appeal is dismissed.