M B MUHAMMEDALI Vs. IBRAHIM HAJI

JUDGEMENT

(1.) This revision is directed against the order dated 30.1.2002 of the Principal Sub Judge, North Paravur in C.M.A. No. 28/2001.

(2.) The facts necessary for the disposal of this revision may be stated as follows: The building bearing No. 776/1 of Edathala Panchayat belonged to the petitioner and it was taken on rent by the respondent for conducting rice, flour and oil mills therein. While the respondent was conducting business in the aforesaid building the petitioner instituted O.S. 339/2000 before the Munsiff Court, Aluva for a perpetual injunction restraining the respondent from subletting or transferring possession of the building. While the suit was pending, the building was completely destroyed on the night of 10.9.2000. According to the petitioner, the building came down on its own while according to the respondent it was pulled down by the petitioner. The respondent filed O.P. 26922/2000 before this Court for giving police protection for reconstruction of the building. That Original Petition was disposed of by this Court allowing the respondent to construct a temporary shed to house the machines and the police was directed to see that no obstruction was caused by the petitioner for the construction of the shed. This court also observed that whether the respondent can reside or do business there has to be worked out through civil and criminal proceedings. When the respondent started construction of a temporary shed, the petitioner obstructed the construction of the same and the contempt case was filed by the respondent. Thereafter, specific direction was given to the Circle Inspector of Police, Aluva to give police protection to construct the temporary shed. The temporary shed was constructed with police protection on 13.2.2001. Aggrieved by the order of the Single Judge in O.P. 26922/2000, the petitioner preferred W.A. No. 2254/2000 before this Court. A Division Bench of this Court dismissed the Writ Appeal confirming the order of the Single Judge in O.P. 26922/2000. The petitioner herein did not prosecute the suit, O.S. 339/2000 and the suit was dismissed. Then the respondent filed an application before the Munsiff Court, Aluva for allowing him to start his business in the temporary shed. That application was dismissed. The order of the Munsiff, rejecting the request of the respondent to start business in the temporary shed was challenged before this Court in C.R.P. 1165/2001. This Court dismissed the CRP confirming the order of the Munsiff. Thereafter, the respondent filed the suit, O.S. 297/2001 against the petitioner for a perpetual injunction. Along with the plaint, he moved an application for interlocutory injunction restraining the petitioner from causing any obstruction to the respondent in conducting the business in the scheduled building. Though the application was stoutly opposed by the petitioner, the learned Munsiff allowed the application. Aggrieved by the order, the petitioner preferred CMA 28/2001 and the learned Principal Subordinate Judge, North Paravur dismissed the C.M. Appeal confirming the order of the Munsiff. Hence, this revision.

(3.) The learned counsel for the petitioner strongly contended that the orders of the courts below are clearly illegal and cannot be sustained either in law or on facts. According to the learned counsel, the lower courts should have found that since the tenancy is exclusively for the building and not for the land, on the destruction of the subject matter, the said tenancy stands extinguished. He also placed much reliance on the decision of the Supreme Court in Vannattankandy Ibrayi v. Kunhabdulla Hajee 2001 (1) SCC 564 ). On the other hand, the learned counsel for the respondent supported this impugned orders and urged that there is no ground for interference. According to the learned counsel, since this Court has permitted the respondent to construct the shed, the respondent is entitled to continue his business and the lower courts were fully justified in granting the relief of interlocutory injunction.