RAMESH DEVCHAND PALA Vs. JAYANTKUMAR GORDHANDAS MADANI

JUDGEMENT

(1.) This Revision Application is directed against the order dated 20.1.1988 passed by the Second Extra Asstt. Judge Junagadh whereby the learned Judge set aside the order of the Second Civil Judge (SD),. Junagadh below Exh. 5 in RCS No. 599/97 dated 25.11.1997 and granted injunction below Exh. 5 directing the defendants to handover the vacant and peaceful possession of Shop No. 8 situated in Balkrishna Market, Haveli Gali at Junagadh City within 10 days as a tenant of the suit shop.

(2.) The question posed in this Revision Application is whether a tenant who has been thrown out by the landlord in a high-handed manner indisregard to the rules recognized in a civilized society, is entitled to interim relief by way of mandatory injunction for restoration of possession pending suit? While the learned Trial Judge answered the question posed in negative, the Appellate Judge observing that in such a situation, the Courts cannot sit and watch the proceedings as a silent' spectator and show its helplessness, answered the question in affirmative. The learned Judge, while granting relief of restoration of possession by interim order, has placed reliance on various decisions of the Apex Court i.e., AIR 1990 SC 867 and AIR 1989 SC 2097.

(3.) The necessary facts are that respondents No. 1 and 2, the original plaintiffs were in possession of the suit shop as tenants of respondent No. 3-Soni Ramniklal, original defendant No. 1, on a monthly rent of Rs. 125/- per month It is alleged that movable property worth Rs. 80,000/- was lying in the suit shop. On 10th November 1997, the defendant i.e., the landlord defendant no. 1 and the petitioner-original defendant No. 2 forcibly dispossessed the original plaintiff tenants by broke open the door, entered illegally, removed the articles from the shop and removed the board of the plaintiff's shop. An FIR in this regard was immediately lodged at the Police Station at Junagadh on 11.11.1997 which has been registered as CR No, 432/97. The plaintiffs also, filed a suit under Section 6 of the Specific Relief Act for recovery of possession of the shop. Along with the suit an application for interim mandatory injunction was also filed under Order 39 Rules 1 and 2 read with Section 151 of the Civil Procedure Code. The plaintiffs also stated that they smelling some foul play between the defendant Nos. 1 and 2, filed a suit for declaration and permanent injunction. The said suit was filed on 4.11.1996 in the court of Joint Civil Judge (SO); It was stated therein that the plaintiff got information that the defendants No. 1 and 2 have entered into some illegal transaction with respect to the suit shop. An injunction was granted by the court restraining the defen-. dants not to interfere with the possession of the plaintiffs. Petitioner-defendant No. 2 filed a pursis Exh. 28 stating therein that he has nothing to do with the suit shop and no transaction is made with respect to the suit shop. In view of this statement, the suit was withdrawn with liberty to file fresh suit It was contended that undisputedly, the plaintiffs were in possession in the suit shop till they were unlawfully dispossessed on 10.11.1997. Thus, according to the plaintiffs a prima facie case is in their favour. It was also contended that the plaintiffs were carrying on their business in the suit shop for the last more than 9 years and they have been abruptly thrown out and they have been deprived of their only source of livelihood. Thus, if the injunction is not granted, they will suffer irreparable injury which cannot be compensated in terms of money. Balance of convenience is also in favour of granting interim injunction in mandatory form to continue the business of the plaintiff in the suit premises which they were carrying on for last more than 9 years. This application was contested by the respondent. It was stated that the plaintiffs have voluntarily handed over possession of the suit shop. It was also stated that a sum of Rs. 30,000/- was given on loan by the defendant No. 2 to the plaintiffs and they consented to repay the loan in instalments and an undertaking in this regard was given that if they do not pay the amount as agreed, they would hand over possession of the suit shop to the defendant No. 1. The plaintiffs filed to repay the loan amount within one year i.e. by 10.11.1997. In view of this, the plaintiffs voluntarily delivered the possession on 10.11.1997. After the vacant possession was delivered to the defendant No. 1, the suit shop was rented out to the petitioner-original defendant No. 1 on a monthly rent of Rs. 150/-. The application for interim relief below Exh. 5 was rejected by the order of the Joint Civil Judge (SD). Junagadh on 25.12.1997. The Appellate Court examined the entire matter in great depth and detail and found that the version of the original defendant No. 2 is not believable. The learned Judge, on perusal of the pleadings in the previous suit i.e., the suit which was filed on 4.11.1996. found that the petitioner-defendant No. 2 specifically denied the allegation of money transactions with respect to the suit shop. The parties did not utter a word with respect to the story of loan of Rs. 30,000/- in that suit. In the opinion of the learned Judge, the version given by the defendant No. 2 in the previous suit is prima facie an admission under Section 17 of the Evidence Act. The learned Judge also looked into the documents and found them to be suspicious. The learned Judge, after looking into other documents and evidence found that there was a strong prirna facie case against the plaintiffs. The teamed Judge, relying on a judgment reported in 1995 2 GLR 1369 wherein it is held that the interim prohibitory injunction restraining the defendants from interfering with the plaintiff's possession can be granted under Order 39 Rules 1 and 2 of the CPC as well as under Sections 6 and 37 of the Specific Relief Act, 1963 granted injunction. The Court also relied upon a decision reported in AIR 1970 SC 846