DEVILAL SHRIVASTAVA Vs. RAMESH CHANDRA GUPTA

JUDGEMENT

(1.) BY the impugned order dated 8.7.1997 passed in Civil Suit No. 30 -A of 1991 of Additional Judge to the District Judge, Gwalior, at Dabra, an application under Order 39 Rules 1 and 2 CPC read with section 151 CPC of was dismissed against which the present appeal has been filed.

(2.) APPELLANT had filed a civil suit before the trial Court for declaration and permanent injunction on the ground that he is tenant of the defendant -respondent in a shop situated at Subhashganj, Dabra. It is alleged that the defendant -landlord is threatening to dispossess from the suit premises. An application under Order 39 Rules 1 and 2 CPC was filed along with the plaint on which the learned trial Court ordered to maintain status quo. Subsequently, plaintiff filed an application under Order 39 Rules 1 and 2 CPC dated 30.9.1991 to the effect that on 22nd August 1991 defendant with the aid of anti -social elements had thrown him out of the possession of the shop and therefore the possession be restored to him. In reply the defendant denied the forcible dispossession of the plaintiff, however maintained that plaintiff had entered into a compromise during pendency of the suit to vacate the shop. However, before expiry of the said period of twenty two months he has voluntarily offered the vacant possession to the defendant.

(3.) LEARNED counsel of respondent has submitted that the learned trial Court has rightly held that whether the plaintiff was forcibly dispossessed or he has voluntarily offered vacant possession to the landlord is a question of inquiry and must be decided on merits. However, admittedly, no such inquiry was deemed fit by the learned trial Court before passing the impugned order.