GOVERDHAN SINGH Vs. MULKH RAJ

JUDGEMENT

(1.) THIS revision is directed against the order of the learned District Judge, Jammu, dated 25-4-1972 confirming on appeal the order of the Sub Judge (CJM) Jammu granting temporary injunction in mandatory from permitting the plaintiff to reconstruct the dismantled walls and doors of the shop in dispute. A suit for permanent injunction brought by Mulkh Raj and others against Goverdhan Singh is pending in the court of Sub Judge (C.J. M.) Jammu. The plaintiffs' case is that they are in possession of the shop held by them as tenants. The defendants are interferring with their possession and in the peaceful enjoyment of the shop. They filed an interim application for grant of temporary injunction restraining the defendants from interferring with the peaceful enjoyment of the property. A temporary injunction was issued subject to objections of the defendants. The defendants filed an application for vacating the said temporary injunction, as according to them, the Government sought demolition of a portion of the shop acquired by the Collector Jammu for public purposes. They also objected to the grant of temporary injunction on merits. The Court of Sub Judge after hearing the arguments in the application observed that it was evident as also from the order of the High Court that a portion of the shop in question was to be demolished under the orders of the Collector, Jammu. The plaintiffs are prepared for the demolition of this portion of the shop but their fear is that in the garb of this demolition the defendants might not dispossess them from the shop in question. Considering this apprehension of the defendants as genuine which was reinforced by certain facts raised in the objections filed by the defendants the trial court ordered the demolition of a portion of the shop. The court further ordered that after the demolition the shop shall be made habitable so as to make it safe for carrying on the business for which it has been held by the plaintiff applicants. The court further ordered that in case the defendants did not reconstruct the walls and doors or pay the necessary amount for its construction the plaintiffs could do so at their own cost. With these observations the temporary injunction was made absolute On appeal before the District Judge, the order of the trial court was affirmed. The learned District Judge observed that there was nothing wrong in the order under appeal as to call for any interference. The learned counsel for the appellant could not make any alternate suggestion before him as to what order other than the one passed by the trial court could in the circumstances of the case be passed.

(2.) BEFORE me it has been contended on behalf of the defendants petitioners that the order of the trial court is without jurisdiction in as much as no such order could be passed in the mandatory form in a suit for permanent injunction. It is, however, conceded before me that notwithstanding the fact that a portion of area under the shop has been acquired by the Collector for public purposes, the defendants would not disturb the possession of the plaintiffs who are the tenants of the shop: The plaintiffs have no objection to the retention of possession by the tenants but they could not be compelled to reconstruct the wall or to re-roof the shop in question. The order was beyond the scope of the suit. Reliance is placed upon A.I.R. 1956 Cal. 45 (d) and page 187 and also on A.I.R. 1963 Gujarat 163.

(3.) THE must question that calls for decision in the case is as to whether the trial court was competent to issue interim mandatory injunction asking the defendants to rebuild the wall and re-roof the house. In order to appreciate the position it is necessary to examine the pleadings of the parties. The plaintiffs suit originally was for grant of permanent injunction restraining the defendants from interferring with the possession and peaceful enjoyment of the shop hold by the plaintiffs as tenant. The averment made was that the plaintiffs are the tenants of the defendants and that the latter with mala fide intention threatened to demolish the walls and dismantle the roof of the shop so that the plaintiffs may be forced to handover its possession to the defendants. The defendants were interferring with the peaceful enjoyment of the premises held by the plaintiffs. An interim application was moved alongwith the plaint. The trial court ordered interim injunction directing the defendants not to interfere with the peaceful possession of the property held by the plaintiffs. Later on in pursuance of the order of High Court that a portion of the land under the shop was to be acquired by the Collector the order was modified. The High Court file reveals that in a suit for partition (pending in this very Bench) an application was moved by the tenants before Hon'ble Jaswant Singh J. with the twin prayer (i) that they may be impleaded as parties to the suit for partition and (ii) that implementation of the High Court order dated 29-12-71 permitting the defendants to demolish the buildings in question, be stayed. The Hon'ble Judge vide his order dated 29-4-72 observed that the plaintiffs could not be made parties to the suit, their only interest could be that their tenancy is protected. This they could not achieve by becoming a party in the suit and they were asked to seek some other remedy available to them under law. It was further observed in the said order that the earlier order of this court was never intended to permit the parties to extend the demolition to any portion not required by the Collector so as to make it impossible for the tenants to remain in occupation of the portion other than that required for road widening. Consequent upon this order of the High Court the trial court of sub-Judge (C.J. M.) on the application of the tenants modified its earlier order of interim Injunction. In partial modification of its earlier order the trial court passed a mandatory interim order asking the defendants landlords to make the shop habitable and reconstruct the wall after it was partially demolished as required by the Collector for the purpose of widening of road. The court further directed that in case the defendants non-applicants did not reconstruct the wall and doors the plaintiffs could do it at their own cost. it is to be seen if the civil court is vested with such a power.