ASHWANI KUMAR & CO Vs. NARESH KUMAR KOHLI

JUDGEMENT

(1.) This revision petition is directed against the order of the District Judge, Gurdaspur, dated June 3, 1989, whereby the order of the trial Court declining ad interim order of injunction was set aside and the Punjab State-defendant in the suit was restrained from interfering in the business of the plaintiff being carried out in shop No. 3042 till final disposal of the suit.

(2.) Notice dated April 12, 1989 was issued from the Assistant Excise and Taxation Commissioner, Gurdaspur, to the plaintiff-firm M/s. Naresh Kumar Kohli and Co. It was stated therein that, it has been reported that you have L-2 vend main bazar on railway road, Pathankot. You have also submitted site plan of the L-2 in vend on railway road. Since the vend was auctioned for main bazar, you cannot function this vend outside the main bazar area on the railway road. You are, therefore, directed to immediately shift the vend in question to any shop in the main bazar, Pathankot." The plaintiff-firm filed this suit for permanent injunction to the effect that defendant be restrained permanently from interfering in any manner in shop No. 3042 situated in the main bazar. Along with the plaint, he also filed an application under Order 39 Rules 1 and 2 read with Section 151, CPC, for ad interim injunction. The trial Court granted ex parte ad interim injunction. Later on on April 26, 1989, M/s Ashwani Kumar and Co. intervened and moved two applications; one for being impleaded as party in the suit and the other for vacating the temporary injunction granted in favour of the plaintiff-firm on the plea that they were also holders of L-2 licence and the disputed shop of the plaintiff was actually located in the area allotted to them. The trial Court allowed the said applications of M/s. Ashwani Kumar and Co. and thus vacated the ex parte ad interim order of injunction. According to the trial Court, the plaintiff has violated the conditions of the licence which were granted to him for the sale of liquor. He has failed to show any prima facie case and balance of convenience is also not in his favour. The said order was set aside by the learned District Judge, Gurdaspur. According to the learned District Judge, the only point to be clinched was whether the shop No. 3042 falls in the main bazar or not. The learned District Judge relying upon the letter dated May 12, 1989, written by the executive officer of Municipal Committee, Pathankot, to the Excise Department conveying that the disputed shop falls in the main bazar. It was found that there was a prima facie case in favour of the plaintiff and the balance of convenience was also in his favour and is likely to suffer irreparable loss if he is not permitted to carry on his business in the disputed shop which appears to be located in the main bazar. The learned District Judge also observed that "there is nothing on the file against the plaintiff/appellant excepting aforementioned certificate dated 10.4.1989 which was superseded by the Executive Officer himself by issuing letter dated 12.5.1989. I am therefore, of the considered view that that learned lower Court failed to exercise its discretion in a judicious manner while vacating the temporary injunction granted by it, and, therefore, it calls for interference by this Court." Learned counsel for the petitioner submitted that unless the premises for sale of liquor are approved by the Department, the plaintiff was not entitled to carry on its business there. Since no such approval has been given by the Department, he was not entitled to any ad interim order of injunction. On the other hand, learned counsel for the plaintiff-respondent submitted that since the discretion has been rightly exercised by the lower Appellate Court in favour of the plaintiff, no revision petition was maintainable. In support of his contention he referred to Hindustan Aeronautics v. Ajit Prasad, 1973 AIR(SC) 76and Secretary to Govt. Ministry of Home Affairs, Punjab, Chandigarh and others v. Krishan Kumar and another, 1985 88 PunLR 535.

(3.) After hearing the learned counsel for the parties, I do not find any justification for interference in the discretion exercised by the lower Appellate Court in favour of the plaintiff. It appears that there is some dispute between the Municipal Committee and the Excise Department, for which the plaintiff could not be allowed to suffer. Consequently, this petition fails and is dismissed with no order as to costs.