OSHO TELEPHONE ACTIVITY MONITORS Vs. LAXMAN AGRAWAL

JUDGEMENT

(1.) BY this petition under Article 227 of the Constitution of India challenge is made to the appellate order dated 18/4/2013 dismissing the appeal No. 04/2013 under Section 104 read with Order XLIII Rule 1 CPC thereby confirming the order passed by the trial court dated 21/2/2013 in civil suit No. 20 -A/2013, whereby trial court has rejected the application under Order XXXIX Rule 1 and 2 CPC filed by plaintiff/appellant.

(2.) FACTS necessary for disposal of the appeal are to the effect that suit for permanent injunction has been filed, which is pending consideration in the Court of Tenth Civil Judge, Class -II, Gwalior, on the premise that plaintiff entered into an agreement with defendants in the year 2007 for using terrace of the house of defendants' ownership situated at Indarganj Chauraha, Lashkar, Gwalior for the purpose of putting up advertisement hoardings for an area of 25 X 20 i.e. 500 sq. ft. on monthly rent of Rs. 5,000/ - for three years. Thereafter, on 3/12/2010 revised rent was agreed between the parties at the rate of Rs. 8,333/ - per month. From 4/12/2011 rent was increased to Rs. 9,166/ - per month. For the period since 5/12/2011 to 4/12/2012 separate cheques of Rs. 55,000/ - to each defendants have been paid. As such, the tenancy is in continuity. However, the defendants in order to fetch more rent of the suit premises have started obstructing the plaintiff in the matter of accessibility to the terrace and in maintenance of hoardings. Plaintiff having been apprehended for forcible dispossession has filed the suit for permanent injunction.

(3.) THE trial court while adverting to the application under Order XXXIX Rule 1 and 2 of CPC has discussed threefold well settled principles for consideration of aforesaid application. The trial court has critically examined the matter and found that admittedly there is no agreement between the parties after 4/12/2012. The alleged payment of rent through cheques sent by the registered post is found to be of no relevance and consequence as though on cheques date is shown to be 4/12/2012, whereas the same have been posted by registered post on 8/1/2013 i.e. after a month while the defendants had already entered an agreement with new advertising company viz. Deepak Advertisers on 5/1/2013. The trial court, therefore, found that the plaintiff was reluctant to seek renewal of agreement, as though the agreement expired on 4/12/2012, but she took one month's time for seeking renewal thereof by sending cheques by post on 8/1/2013 for which there is no explanation. Accordingly, no prima facie case was found to be in favour of plaintiff. Likewise, in para 10 of the order the trial court has also questioned the intention and calculated move of the plaintiff in the matter of alleged claim of depositing the amount in the defendants' accounts to in the sum of Rs. 4,590/ - for one month, whereas agreement allegedly was sought to be renewed for one year and that too the amount was deposited in one account, whereas earlier rents in equal proportion used to be deposited in the accounts of defendants separately. With the aforesaid consideration, the trial court found that there is no balance of convenience in favour of plaintiff/petitioner and consequently has found that no irreparable loss will be caused to the plaintiff. Accordingly, rejected the application under Order XXXIX Rule 1 and 2 of CPC. The first appellate court confirmed the order passed by the trial court.