ASHVINKUMAR JAYANTILAL SHAH Vs. HARICHAND KEDARNATH KHANNA

JUDGEMENT

(1.) This Civil Revision Application under Section 115 of the Code of Civil Procedure is directed against judgment and order passed by Assistant Judge at Navsari in Misc. Civil Appeal No. 95 of 1993 whereby the lower appellate Court has allowed the appeal preferred by the present petitioner against the judgment and order passed by Civil Judge, J. D., Pardi below Exhibits 5 in Regular Civil Suit No. of 1993. While allowing such appeal and quashing and setting aside the order passed by the Court of Civil Judge, J. D., the lower Appellate Court has directed that the present respondents (original defendants) shall not dispossess the present petitioner of the suit factory without due process of law till the disposal of the Suit No. 73 of 1993 subject to following conditions:

(2.) It is against the aforesaid order passed by the lower appellate court which is substantially in favour of the present petitioner, that the petitioner has moved this Court under Section 115 of the Code of Civil Procedure.

(3.) Mr. J. B. Pardiwala, learned Counsel appearing for the petitioner has strenuously urged before this Court that though appeal of the present petitioner is allowed and accepted by the lower appellate Court, by imposition of condition which is impossible of compliance, the lower appellate Court has in substance dismissed the appeal or in substance refused to exercise the jurisdiction vested in it by law by making it impossible for the petitioner to avail of the benefit of the order of injunction. He further submitted that once it is accepted that petitioner plaintiff is in possession of the factory pursuant to hire agreement, injunction as prayed for ought to have been granted in favour of the petitioner-plaintiff and no condition could have been lawfully imposed so as to render such injunction meaningless. He has in this connection invited attention of this Court to the decision of the Supreme Court in the case of Ram Rattan v. Slate of Uttar Pradesh reported in A. I. R. 1977 S.C. p. 619. In fact, the case relates to this defence of private defence under Sections 97 and 99 of the Indian Penal Code and right of the owner of the property against trespasser. The case is directly not laying down the proposition canvased by Mr. J. B. Pardiwala, learned Counsel appearing for the petitioner. It is observed by the Supreme Court in the context of right of private defence of property that a true owner has every right to dispossess or throw out a trespasser, while the treapasser is in the process of trespassing, and when he has not accomplished his possession. The Court has further observed that this right is not available to the true owner if the trespasser has been successful in accomplishing his possession to the knowledge of the true owner. In such circumstances, the law requires that the true owner should dispossess the trespasser by taking recourse to the remedies available under the law. To the aforesaid proposition of law, which is well accepted in this country, no exception could be made. I am also in full agreement with the aforesaid proposition of law.