DHIRAJLAL VITHALDAS KAVAIYA Vs. RASIKLAL CHANDULAL PATEL

JUDGEMENT

(1.) This revision application is filed against an order below applications Exs. 5 and 15 in Rent Suit No. 8 of 1989 passed by the Court of Small Causes, Baroda and confirmed by the Assistant Judge Baroda in Misc. Civil Appeal No. 193 of 1989.

(2.) To appreciate the controversy in question few relevant facts may now be stated. The petitioner is the original defendant while the opponent is the original plaintiff. The plaintiff filed a Rent Suit No. 8 of 1989 in the Court of Small Causes, Baroda. It was his case that he was tenant of the defendant and was doing business in selling and repairing electric motors in the name and style of 'Baroda Winding Corporation'. The suit shop is situate at Varaimata Chowk, Lakkad Pitha, in the City of Baroda. The defendant, who was having a shop adjacent to the disputed shop, wanted the plaintiff to vacate the suit shop and hence was harassing the plaintiff. The plaintiff, therefore, filed the above suit for declaration that he was the tenant of the suit shop and the defendant was not entitled to deprive him of legal possession. He also prayed for permanent injunction restraining the defendant from interfering with possession of the plaintiff. Alongwith the plaint he filed an application, Exh. 5 for interim injunction under the provisions of Order 39 Rules 1 and 2 read with Sec. 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code'). The prayer was granted by the learned Judge and after hearing Advocate for the other side status quo was ordered to be continued. It was the case of the plaintiff that violating that interim order, the defendant broke open the lock of the plaintiff and applied his own lock as also sealed the shutters by welding. He, therefore, filed application Exh. 15 for mandatory relief directing the defendant to hand over possession of the suit shop to him.

(3.) The defendant resisted the suit as well as applications Exhs. 5 and 15 by filing a consolidated reply at Exh. 18, inter alia contending that the plaintiff was not the tenant of the suit shop and he had no right to remain in possession of the property. Allegations of breaking open of the lock have been denied and it was contended that the plaintiff agreed to hand over possession of the suit shop to the defendant and did hand over possession of the shop on 1/01/1989. Possession receipt (Kabaja Pavati) was also executed by him. Some goods belonging to the plaintiff were lying in the shop and the defendant permitted the plaintiff to take away the goods subsequently. It was, thus, averred that the plaintiff voluntarily handed Over possession of the suit property to the defendant and, therefore, both the applications were required to be dismissed.