PAWAN NANDLAL AGRAWAL Vs. ASIAN DYE CHEMICALS

JUDGEMENT

(1.) This appeal is preferred by the original defendant against the judgment passed by the District Judge, Akola, in Regular civil Appeal No. 114 of 2001, whereby the judgment passed by the Joint Civil judge, Senior Division, Akola, in Special Civil Suit No. 51/1997 was reversed and the suit filed by the plaintiff Firm was decreed.

(2.) This Court, by the order dated 5th March, 2003, admitted this second appeal on the following substantial questions of law :

(3.) To consider the controversy involved in this second appeal as also the substantial questions of law, it is necessary to refer to a few facts : the respondent is the original plaintiff. The respondent firm named and styled as "asian Dye Chemicals" had instituted Special Civil Suit No. 51/1997, against the appellant/defendant for a decree for possession of the entire property described in para 1 of the plaint. The plaintiff also sought a direction against the defendant to pay an amount of Rs. 1,46,000/ - along with interest @ 21% per annum thereon from the date of the suit till its actual realisation. According to the plaintiff, the plaintiff was an allottee of the suit plot which was situated beyond the municipal limits of Akola. The plaintiff had installed a shed for machines, equipments, storage tank, etc. and the shed admeasured about 2800 sq. ft. The defendant approached the plaintiff in the month of December, 1992 and represented to the plaintiff that the defendant was required to vacate the godown which was previously used by him for storing cotton and he be allowed to store the cotton in one of the corners of the godown owned by the plaintiff. It was pleaded that the defendant executed an agreement dated 21-12-1993, agreeing to use the premises for some time and remove his goods and articles from the premises by 20th July, 1994. The defendant, however, failed to remove the goods as promised by the defendant. It is then pleaded that on 17-8-1994, there was a lengthy discussion between the partners of the plaintiff and the defendant and as a result of those discussions, the defendant removed the articles from the godown and the plaintiff locked the godown after the removal of the articles by the defendant. According to the plaintiff on 18-8-1994, the defendant forcibly entered into the premises and the plaintiff was required to lodge a police report on 18-8-1994. In view of the aforesaid facts, the plaintiff required to file Regular civil Suit No. 541/1994 for grant of permanent injunction against the defendant. An application was filed by the plaintiff in the said suit for grant of temporary injunction. The temporary injunction was granted in favour of the plaintiff by the trial Court. However, the defendant had falsely stated in the reply that there was an agreement of lease between the plaintiff and the defendant. The order of temporal injunction granted by the trial Court was, however, set aside in an appeal filed by the defendant and a civil revision application was filed by the plaintiff against the order passed by the Appellate Court in Misc. Appeal No. 128 of 1994. The civil revision application was pending at the time of institution of appeal. According to the plaintiff, in view of the rejection of the application for grant of temporary injunction, the defendant was occupying the entire premises. Since the decision of the revision application would take its own time, to avoid further complications and without prejudice to the rights of the plaintiff to continue the Civil Suit No. 541/1994, the plaintiff issued a legal notice to the defendant on 12-9-1996, informing the defendant that he had no right to occupy the suit property, but, however, to avoid the technical objections, the tenancy alleged by the defendant in reply Exh. 10 in Regular Civil Suit No. 541/1994 was terminated with effect from midnight of 20th October, 1996. The defendant was called upon to deliver the vacant possession of the premises before the sunrise of 21st October, 1996. It was then pleaded by the plaintiff that the defendant was unauthorisedly occupying a portion of the premises owned by the plaintiff in spite of termination of the tenancy so also he was occupying the other portion of the premises as a trespasser. According to the plaintiff, the cause of action to file the suit arose on 12-9-1996 when the notice was issued by the plaintiff to the defendant and also on 21-10-1996 when the defendant failed to hand over the possession of the suit premises to the plaintiff.