KASINATH MALLICK Vs. HEMALATA DALAI

JUDGEMENT

(1.) IN this writ application, challenge has been made to the order dated 24.9.2009 passed by the learned District Judge, Keonjhar in F.A.O. No. 15 of 2009 setting aside the order dated 21.8.2009 passed by the learned Civil Judge (Senior Division), Anandapur in I.A. No. 23 of 2009 (arising out of C.S. No. 51 of 2009) filed by the petitioner under Order 39 Rules, 1 and 2, CPC.

(2.) THE facts as narrated in the writ application are as follows: The petitioner as plaintiff filed C.S. No. 51 of 2009 for injunction against the opposite party -defendant not to interfere with his possession over the management and operation of the disputed petroleum pump till expiry of the lease period and refund of Rs.18,50,000/ - by the defendant. He averred in his plaint that the opposite party is the proprietor of M/s. Dalai Filling Station situated near Chhenapadi Chhak under Nandipada Police Station in the district of Keonjhar. He further pleaded that the opposite party, being in need of money due to her acute financial crisis, proposed to lease out the said petrol pump in favour of the plaintiff to manage and run it for a limited period. Accordingly, the plaintiff agreed to the said proposal and mutually they decided to lease out the petrol pump for a period of three years with effect from 23.3.2008 and the plaintiff would pay Rs.5,000/ - per month for maintenance of the building and assets. The plaintiff invested and managed the petrol pump. Accordingly, on the aforesaid date the plaintiff paid Rs.18,50,000/ - to the defendant who delivered the possession in his favour. Thereafter, they entered into a written agreement on 1.11.2008 acknowledging lease of the said petrol pump in favour of the plaintiff as per the above terms. The defendant admitted that she received Rs.5,000/ - per month towards maintenance charges (Rs.34,000/ - till 1.11.2008, Rs.20,000/ - till 30.2.2009 and Rs.10,000/ - till 30.4.2009). Accordingly, he was entitled to run, operate and manage the said petrol pump till 23.3.2011 without any interruption and interference from the defendant as per the agreement and on repayment of Rs.18,50,000/ - by the defendant to him on expiry of the lease period, he shall re -deliver the possession of the said petrol pump to her.

(3.) THE defendant opposite party after receiving notice in the interim application filed her objection traversing the allegations made by the plaintiff petitioner. She averred that Bharat Petroleum Corporation Limited granted the licence to her to run the petrol pump and in absence of the said Petroleum Corporation as a party, the suit is not maintainable and as pleaded by the plaintiff regarding agreement dated 1.11.2008, it was against the terms and conditions of the licence granted by the said Corporation. Further, the agreement which the plaintiff claims to have executed before the notary public not having been registered is void and illegal and not to be considered as genuine. The plaintiff is barred by the Law of Contract and the Specific Relief Act.