SASHI VERMA Vs. TEK SINGH AND ANOTHER

JUDGEMENT

(1.) During the pendency of Civil Suit No. 27-S/1, of 14/13, an application cast, under the provisions of Order 39, Rules 1 and 2 of the CPC, was, preferred by the plaintiff/applicant/petitioner herein, before the learned trial Court, wherein, she sought relief of ad interim mandatory injunction being pronounced vis-a-vis her, and, qua the suit premises. Also obviously she concerted to seek the restoration of possession of the suit premises, from, the defendant. The learned trial Court, dismissed the apposite application. In an appeal carried therefrom, by the plaintiff/petitioner herein, before, the learned Additional District Judge-1, Shimla, the latter did likewise. Now, the plaintiff/petitioner herein being aggrieved therefrom, hence, has instituted the instant petition before this Court.

(2.) Normally, Courts of law, would, be reluctant in granting any relief of ad interim mandatory injunction vis-avis the suit premises concerned, also, would obviously refrain, from, till an adjudication is pronounced on merits visa-vis the apposite lis, mete directions, upon the defendant(s) , qua handing over, of, possession of the suit premises vis-avis the plaintiff/petitioner herein. However, certain exceptions tot he aforesaid intradictory bar, against, the apposite relief of ad interim mandatory injunction, being pronounced qua the suit premises, till an adjudication is meted upon the civil suit, are also encapsulated, in a judgment pronounced by this Court in a caste titled as Anil Sharma & another vs. Mehboob Hussan, 2012 Supp1 HimLR 2275, exceptions whereof are comprised in trite evidence, making prima facie</i> displays (i) of the applicant/plaintiff/petitioner being in evident possession of the suit premises, prior to his/her unlawful eviction therefrom; (b) affording of relief being necessary, for obviating the promoting of illegal dispossession, of the applicant/plaintiff/petitioner, from the suit premises; (c) dehors no adjudication on merits being pronounced, upon the apposite therewith similar lis borne in the civil suit, (i) whereupon, the Courts, are, enjoined to hence ensure, the status quo qua ante, prior to the date of institution, of the suit. This Court would proceed, to apply, the expostulations borne, in the afore referred pronouncement, recorded by this Court in Anil Sharma's case , (ii) only, upon prima facie</i> material existing on record, and, its earmarking a graphic display qua 6 months prior to the plaintiff/applicant/petitioner, herein being purportedly illegally dispossessed, from, the suit premises by defendant No.1, rather hers being in possession thereof. The plaintiff/petitioner herein had depended, upon a partnership deed executed inter se her and defendant No.2, for hers legitimizing her claim qua hers holding possession, of, the suit premises. The learned Appellate Court, discounted vigour thereof, on, the trite grounds, of, with rent agreement being evidently executed vis-a-vis the suit premises inter se defendant No.1, and, with defendant No.2, thereupon, the plaintiff/applicant, prima facie</i> failing to adduce cogent proof qua hers holding possession of the suit premises, importantly six months prior to hers being purportedly illegally dispossessed, from, the suit premises, besides concluded of the partnership deed executed inter se defendant No.1, and, the plaintiff/applicant/petitioner herein, especially vis-a-vis the suit premises being a sequel, of contrivance inter se defendant No.2, and, the plaintiff/petitioner herein. The factum, of, tenancy qua the suit premises inhering in defendant No.1, though, is borne by a copy, of eviction petition existing on record, wherein, defendant No.2 claims eviction of defendant No.1, and, of the plaintiff/petitioner herein, from, the suit premises, on anvil or ground, of defendant No.1 subletting the same vis-avis the plaintiff/petitioner herein, (a) yet any imputation of any credence thereto, is totally insignificant, for determining the tenacity of the espousals, made, by the plaintiff/applicant, in her apposite application, (b) importantly when the mandate expostulated by this Court in Anil Sharma's case , for hence the plaintiff/petitioner herein being rendered empowered, to seek the relief ventilated in her apposite application, rather enjoins satiation of the trite factum, of, the plaintiff/petitioner herein being in evident possession of the suit premises, prior to hers being unlawfully dispossessed therefrom. Even though, the aforesaid revelations, borne, in the rent petition, may hence, with evidently a partnership deed being executed inter se the plaintiff and defendant No.2, beget concomitant adversarial effects upon its success, nonetheless, prima facie</i> at this stage, as aforestated, and, for the reasons to be ascribed hereinafter, the learned Appellate Court, has visibly gone astray, in omitting to apply the expostulation(s) , enshrined by this Court in Anil Sharma's case . His deviations, from, the mandate of the verdict pronounced by this Court, in Anil Sharma's case , is comprised in his not alluding, to evidence germane, to hence satiation being begotten vis-a-vis the trite principles borne therein, of the plaintiff holding possession of the suit premises, six months, prior to hers being illegally dispossessed therefrom. The relevant evidence germane thereto, and, which appears to stand visibly untenably discarded, by the learned Appellate Court, is comprised, in defendant No.1 lodging a complaint, on 3.2013, with, the Incharge of Police Post, Solan, complaint whereof carries therein, articulations of his hence acquiescing, of, his not holding possession of the suit premises. The effects of the aforesaid acquiescences, borne in the report made on 3.2013, by defendant No.1, with, the

(3.) For the foregoing reasons, the instant petition is allowed and the impugned orders are set aside. Consequently, the plaintiff's/petitioner's application, cast under the provisions of Order 39, Rules 1 and 2 CPC, is allowed, and, defendant No.1/respondent No.1 herein is directed to, within two weeks from today, hand over the possession of the suit premises, to the plaintiff/petitioner herein. The parties are directed to appear, before, the learned trial Court on 23rd April, 2018. However, it is made clear that the observations made hereinabove shall have no bearings on the merits of the case. No order as to costs. All pending applications also stand disposed of . Records be sent back forthwith.