DILIPBHAI AMBALAL BHATIYA HUF SATTELLITE TENNIS CLUB Vs. SHREYASH PRATISTHAN YANE SHREYASH FOUDATION SANTHA, CHA

JUDGEMENT

(1.) PRESENT Appeal From Order under Order 43 Rule 1(r) of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC") has been preferred by the appellant herein original plaintiff to quash and set aside the impugned order dated 28.04.2011 passed by the learned Chamber Judge, Court No.16, City Civil Court, Ahmedabad below Notice of Motion Exh.6/7 in Civil Suit No.476/2011, by which the application submitted by the appellant for interim injunction, to restrain the defendant, its trustees, agents and servants from taking law in their hands and from taking forcible possession of the tennis ground housed in Bajrang Maidan (of Shreyas Foundation) and further to restrain the defendant, its agents and servants from creating hurdles, obstructions, in the use of parking facilities and from creating hurdles in the use of ancillary (toilet) facilities available at the said tennis ground situated in the Bajrang Maidan, has been rejected.

(2.) THAT the appellant herein original plaintiff has instituted a Civil Suit No.476/2011 in the City Civil Court, at Ahmedabad for permanent injunction and declaration that the defendant, its agents and servants and/or trustees have no right to take law in their hands and take the possession of the disputed ground and/or disturb the possession of the plaintiff which is being used by the plaintiff as a tennis ground as tenant. In the said suit the plaintiff has also prayed for permanent injunction permanently restraining the defendant, its agents and servants from creating hurdles and/or obstruction in the use of parking facilities and from creating hurdles in the use of ancillary (toilet) facilities available at the said tennis ground. It was the case on behalf of the plaintiff that plaintiff is in possession of the suit premises/ground since 2005 as tenant. That in the year 2005, rent was fixed at Rs.6,000/ - and thereafter rent was increased to Rs.15,000/ - from June 2007 and it was further increased to Rs.26,250/ -. That initially the playground was given to one Keyur Bhatiya who formed Satellite Tennis Club and thereafter the HUF was formed and the plaintiff HUF was accepted as a tenant and the rent etc. was paid by the HUF from its bank account. It was alleged that thereafter the dispute started with respect to increase in the rent which was objected by the plaintiff and thereafter the defendant was threatening the plaintiff to dispossess him from the suit property and therefore, to protect the possession, the plaintiff had instituted the aforesaid suit. That in the said suit, the plaintiff took out Notice of Motion for interim injunction. It was contended on behalf of the plaintiff that the plaintiff is a tenant of the suit premises/ground and therefore, they cannot be dispossessed without following due procedure of law as they cannot be termed as trespasser. The interim injunction application/Notice of Motion was opposed by the defendant by filing the reply. It was the specific case on behalf of the defendant that as such there was no privity of contract between the plaintiff and the defendant. It was the case on behalf of the defendant that playground was given to Keyur Bhatiya in his individual capacity as a tennis coach, as a licensee and not as a lessee. It was also the specific case on behalf of the defendant that plaintiff was never in exclusive possession of the playground in question and was permitted to use the said playground as a tennis coach for limited hours between 6.30 to 10.30. It was specific case on behalf of the defendant that plaintiff was never accepted as a tenant. Therefore, it was the case on behalf of the defendant that as the said Keyur Bhatiya was only a licensee to use the playground for limited hours, it was requested to dismiss the interim injunction application / Notice of Motion.

(3.) SHRI D.D. Vyas, learned Senior Advocate appearing on behalf of the appellant has vehemently submitted that learned Judge has committed an error and/or illegality in not granting the injunction as prayed for. It is submitted that the Satellite Tennis Club which was being run by member of the joint Hindu family Keyur Bhatiya who is the lessee and the rent has been recovered from the original plaintiff HUF and which has been accepted by the defendant without raising any objection, thereby accepting the HUF as a tenant and therefore, the plaintiffs cannot be evicted and/or dispossessed without following due procedure of law.