RAMDULARIDEVIVISHWANATH DUBEY Vs. RAMTEJ SHRIDULL MISHRA

JUDGEMENT

(1.) ON January 13, 1987 the respondent (the defendant)in collusion with one Mr. Pandit Brahmdutt Awasthi, claiming to be the landlord of the suit chawl, filed a suit in the Court of Small Causes at bombay being R. A. Declaratory Suit under Stamp No. 222 of 1987, for a declaration that he is the tenant of the suit premises viz. , Room No. 4 in the said chawl and that his possession is being disturbed by the said Pandit brahmdutt Awasthi and the present appellant No. 2. Relying on the statement made by the respondent, the Court of Small Causes at Bombay granted an order of injunction restraining the defendants in the said suit viz. Pandit Brahmdutt Awasthi and appellant No. 2 from dispossessing the present respondent from the suit premises otherwise than by due process of law. In fact, the present respondent was not in possession of the premises at all. On that day, the present appellant No. 2 was in possession of the premises. This order of injunction was obtained on January 15, 1987 on an interim application in the said suit. Thereafter on January 21, 1987 present appellant No. 2, was dispossessed from the premises. He had not been served with the order of injunction. He went to the Police Station complaining about his dispossession. The present respondent was thereafter arrested by the police. On January 22, 1987 the order of ad interim injunction was served on the present appellant No. 2. He then moved the court of Small Causes for vacating the order of injunction. The Court of small Causes by its order dated July 15, 1987 after hearing both the parties and by a reasoned order vacated the order of injunction. The learned Judge came to the conclustion that as on the date of the filing of the suit and on the date when the order of injunction was granted, the present respondent (the plaintiff in the said suit) was not in possession of the suit premises at all. He also came to the conclusion that the present appellant No. 2 (defendant No. 2 in the said suit) was in possession of the suit premises on that day. The learned Judge further came to the conclusion that it was a collusi [e suit, collusion being between the said Pandit Brahmdutt Awasthi (defendant No. 1 in the said suit) and the present respondent, apparent

(2.) AT that stage, the present appellant No 2 made an application that since he was dispossessed from the suit premises on January 21, 1987, his possess on should be restored and an order to that effect should be passed. The learned Judge somehow came to a very strange conclusion viz. , that defendant No. 2 i. e. the present appellant No. 2, was not dispossessed from the suit premises in pursuance of the order of the Court and, therefore, it is on that assumption he felt that he was unable to give any relief to the present appellant No. 2 in that behalf. Though, the learned Judge categorically stated that the order of injunction was obtained by suppressing material facts which were within the knowledge of the plaintiff in the said suit anil though he awarded heavy costs in favour of the present appellant no. 2, hie was unable to do justice in the matter.

(3.) AGAINST this judgment, the respondent herein filed an, appeal before the Bench of two Judges of the Court of Small Causes being Appeal no. 368 of 1987. While confirming the finding given by the learned trial judge of the Court of Small Causes, the Appeal Court dismissed the appeal on the ground that the dispute, in fact, was not a disputed between a landlord and a lenant inasmuch as the landlord was openly colluding with the plaintiff therein and it is on that ground the appeal was dismissed. In the result, the order passed by the learned trial Judge dated July 15, 1987 stood confirmed. That order is still in force. But possession was not restored.