GOMTI DEVI SHARMA Vs. CHANDA DEVI

JUDGEMENT

(1.) THE two orders passed by the learned Assistant District Judge, Shillong, namely, (i) the order dated 22-4-2005 in misc. Case No. 14 (H) of 2004 vacating the interim injunction dated 13-8-04 and directing the O/c, Shillong P. S. to open the lock and seal of the suit shop and (ii) the order dated 22-4-2005 passed under Section 10 of the Code of Civil Procedure staying the connected Title Suit No. 18 (SH) of2004, are challenged in this revision petition.

(2.) THE material facts of the case, as pleaded by the petitioner, are that the husband of the respondent herein, namely, the late Gurupada Kar, who was her tenant in respect of the suit shop located at Police bazar, Shillong under Municipality holding no. 87, had surrendered his tenancy on 14-6-2004, but after his death, the respondent on 16-7-2004 attempted to enter the suit shop by force and other means, which resulted in sealing in the suit shop by the police. This compelled the petitioner to institute Title Suit No. 18 (SH) of 2004 before the learned Assistant District Judge, Shillong for declaration of her title to the suit shop, for declaration that the tenancy agreement executed with the husband of the respondent had no effect and enforceability in law and for permanent injunction. The petitioner also simultaneously filed Misc. Case No. 14 (H) of 2004 before the same Court for an interim injunction as well as for directing the police not to allow the respondent and her men from breaking open the lock of the suit shop during the pendency of the connected suit. The Court, after hearing the petitioner, passed the interim injunction order dated 13-8-2004 directing the police not to open the lock of the suit shop or otherwise from allowing the respondent to break open the lock and to show cause against the prayer for temporary injunction. The respondent entered her appearance before the court but did not file her written statement or show cause against the prayer for interim injunction. Instead, she filed an application under Section 10 read with Order 39, Rule 4 of the Code for staying the suit contending that she herself had instituted Title Suit no. 19 (H) of 2004 and Misc. Case No. 22 (H)of 2004 before the learned Munsiff, Shillong in respect of the same subject-matter, which was pending for adjudication. According to the petitioner, she had also filed an application under Section 10 of the Code before the learned Munsiff, Shillong. The petitioner, as the defendant therein, took the plea of Section 10 of the Code for staying Title Suit No. 19 (H) of 2004 and Misc. Case No. 22 (H) of 2004 and had also filed her written statement and show cause in connection therewith. It is also the case of the petitioner that she filed her written objection against the plea of stay of suit in respect of Title Suit no. 18 (H) of 2004 and Misc. Case No. 14 (H)of 2004 pending before the learned Assistant District Judge, Shillong made by the respondent. The learned Assistant District judge, after hearing the parties, passed the impugned order dated 22-4-2005 staying further proceeding of Title Suit No. 18 (H) of 2004 and the other impugned order vacating the interim injunction order passed ex parte and directing the police to break open the lock of the suit shop and hand over possession thereof to the respondent. It is the specific case of the petitioner that the suit shop was not in possession of the respondent, and had been kept under lock and seal by the police in addition to the lock placed by her because of the pending dispute between her and the respondent. Taking advantage of the impugned orders, contends the petitioner, the police in a most illegal and arbitrary manner delivered possession of the suit shop to the respondent by breaking open the lock of the door of the suit shop. The interference of this Court is, therefore, sought for by the petitioner in this revision petition.

(3.) MR. S. Changkija, the learned counsel for the petitioner, contends that the learned assistant District Judge exceeded his jurisdiction in taking up the plea of the respondent for staying the suit, namely, Title Suit no. 18 (H) of 2004 under Section 10 of the code when the respondent had not even filed her written statement and when no issue had been framed in that behalf, and the impugned order staying the suit is, therefore, bad in law and is liable to be set aside. He further submits that there was absolutely no evidence to show that the respondent was in possession of the suit shop before and after the death of her husband, and the vacation of the interim order dated 13-8-2004 on the basis of such perverse findings and the direction passed by the learned assistant District Judge upon the police to open the lock and seal of the suit shop and to allow the respondent to take possession thereof for continuing her business thereon, are illegal and cannot be sustained in law. He, therefore, strenuously urges this Court to set aside the impugned orders forthwith to prevent grave miscarriage of justice, Mr. S. K. Deb Purkayastha, the learned counsel for the respondent, supports the impugned orders and submits that no interference is called for in the Impugned orders, which are perfectly just and proper on the materials available on record.