SUSHILABEN VASANTBHAI RANDERI Vs. ABHAYKUMAR PANACHAND SUKHADIA

JUDGEMENT

(1.) The petitioner is the original-defendant in Civil Suit No.53 of 2002. The petitioner purchased a property bearing survey no.1630 situated in ward no.10 of the city of Surat from one Shri Jivanchandra Chunilal Zaveri alongwith tenant, one Shri Panachand Lallubhai of M/s. Hemchand Virchand. The case of the petitioner is that thereafter on 1.12.1997, the property was leased out to one Shri Rohitbhai Lakadawala on monthly rent of Rs.250.00, because the original tenant, viz. the respondent herein, had relinquished the tenancy rights and handed over possession to the petitioner-defendant. It is further stated by the petitioner that Shri Rohitbhai Lakadawala also relinquished the tenancy rights in respect of the property on 1.12.1988, and since then the petitioner was having possession of the property.

(2.) As against this the respondent has raised a dispute that on night of 19.1.2002, when the respondent along with his family members was out-of-station, the petitioner, accompanied by her husband, seized the possession of the property by breaking open lock and throwing out goods, etc. lying in the premises. The respondent herein filed Regular Civil Suit No. 53 of 2002 in the Court of Joint Civil Judge (S.D), Surat and made an application seeking interim relief under Exhibit 5. The said application came to be decided on 22.7.2002 and the said order is challenged seeking the following reliefs :

(3.) Mr.A.M.Kapadia, learned Advocate for the petitioner contended that the Trial Court has erred in passing the impugned order without appreciating the correct position in law. That the Trial Court has not considered the aspect regarding balance of convenience before passing the impugned order and this was a relevant factor which had material bearing in relation to the application below Exhibit 5. Mr.Kapadia also submitted that it was not permissible for the Trial Court to pass the mandatory order directing the petitioner to hand over possession of the property at an interim stage. It was also submitted on behalf of the petitioner that the suit was under Section 6 of the Specific Relief Act, 1963 and in these circumstances, before making the order the Trial Court ought to have taken into consideration that the petitioner would be left without any remedy even if ultimately the suit is dismissed, because the petitioner would have to file the suit for restitution if the respondent plaintiff did not hand over possession of the property. Mr.Kapadia cited two decisions in support of the proposition that the High Court had wide powers under Article 227 of the Constitution of India vis-a-vis the provision of Section 115 of the Code of Civil Procedure,1908. It was also submitted that under Article 227 it was open to the High Court to intervene in the order of Trial Court when it had recorded a finding of fact which was not supported by the material on record. It was also submitted that the order granting interim relief should not render any one party remediless, which the impugned order would result into.