SHAFQAT HUSSAIN Vs. DISTRICT JUDGE MORADABAD

JUDGEMENT

(1.) D. K. Seth, J. Suit No. 540 of 1997 has been filed by the petitioner before the learned Additional Civil Judge (Junior Division) IVth Court, Moradabad against the opposite parties for an injunction restraining them from taking possession of the properly except through proceedings instituted in the Court of law. The Trial Court upon an application under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure granted an ad interim injunc tion by an order dated 21st December, 1998. Misc. Civil Appeal No. 11 of 1999 and Misc. Civil Appeal No. 15 of 1999were filed by the defendant opposite parties and the plaintiff petitioner, respectively, against the said order. By an order dated 17th July, 1999 passed by the learned Dis trict Judge, Moradabad, Misc. Appeal No. 11 of 1999 was allowed and the order dated 21st November, 1998 was set aside. By the same order, Misc. Appeal No. 15 of 1999 was dismissed.

(2.) MR. K. K. Arora has challenged the order dated 17th July, 1999 passed in the appeal No. 11 of 1999 on the ground that the question that was posed before the Court below was as to the consideration whether z prima facie case is made out or not. On the other hand, the court had entered into the question as to whether the petitioner had any right to possess the property or not. In fact is has dealt with the merit of the case, which was not supposed to be done while considering the question under Order XXXIX, Rules 1 and 2. He further contends that even if the petitioner's claim for tenancy appears to be invalid or void by reason of Sections 11, 13,16 and 17 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, still then he cannot be evicted except through a proceeding under Section 12 of the i said Act. He further contends that the Petitioner cannot be dis possessed by reason of the execution of the order passed in proceedings under Sec tions 145 and 146 of the Code Criminal Procedure, particularly when the petitioner was not a party to the said proceedings. Therefore, in the present case, the petitioner was able to made out a prima facie case for grant of interim order in his favour as was granted by the learned trial Court. Therefore, the order passed by the learned appeal court suffers from infir mity, which should be interfered with through this petition under Article 227 of the Constitution pf India. He has also relied on the balance of convenience and inconvenience between the parties and has also pointed out from the order itself that there were certain materials on the basis of which it could be said that there was a tenancy created by the holders of the power of attorney in his favour. He also contends that the order passed by the ap pellate court is full of perversity and can not be sustained and as such, the said or ders should be quashed.

(3.) THE petitioner is claiming his right of possession by reason of agreement for tenancy entered into between him and one Sri Rajendra Prasad Shukla on 26th May, 1994. It is alleged that Rajendra Prasad Shukla was holding the power of attorney of the owners of the premises. THE said tenancy had commenced with effect from 1st June, 1994 and he had paid rent for which receipts were granted and therefore, there was sufficient, prima facie case for grant of injunction.