AMINA BEGUM Vs. BANARSI LAL

JUDGEMENT

(1.) THE petitioner is aggrieved by an order dated 1st September 2007 whereby an appeal of the petitioner against an order of learned Civil Judge dismissing an application of the petitioner under Order 39 Rule 1 and 2 CPC was dismissed.

(2.) THE petitioner had filed a suit before the trial court for permanent injunction. In the suit, the petitioner pleaded that he was a tenant and wanted to repair his shop as per the plan attached with plaint and the respondent (landlord) was causing obstruction in the repairs, therefore, a permanent injunction be granted against the landlord restraining him from obstructing the repairs to be done by the petitioner. In the application under order 39 Rules 1 and 2 CPC, he made the same prayer as he made in the suit. The learned trial court after considering the application on merits observed that no written notice had been given by the petitioner to the landlord for repairs. There was a specified remedy available to the petitioner under Delhi Rent control Act in view of the provisions of section 50 of DRAC act under section 44 (3) for making a grievance about the repairs. The petitioner had not applied for repairs. It was also observed that it was not the contention of the petitioner that the shop needed repairs so as to make it habitable and worth running a business. He only wanted to do beatification work. The trial court dismissed the application. The learned first appellate court also dismissed the appeal of the petitioner observing that if the relief sought by the petitioner was allowed, it would result into decreeing the suit of the petitioner without trial.

(3.) I consider that the order of the learned Civil Judge or the appellate court does not suffer from jurisdictional error or material irregularity. In the suit, the only relief sought was of issuance of permanent injunction against the landlord from interfering in the repair. The relief sought by the plaintiff (petitioner herein) in the application under Order 39 Rules 1 and 2 CPC is also the same. Allowing application of the plaintiff without giving an opportunity to the respondent to contest the claim of the petitioner would amount to decreeing the suit of the plaintiff without trial. I am in full agreement with the observations of the first appellate court in this regard. I find no force in this petition. The petition is hereby dismissed. No orders as to costs.