MOHD SULTAN WANI Vs. QASIM ALI

JUDGEMENT

(1.) THE plaintiff applicant brought a suit for permanent injunction against the defendants respondents in the court of City Munsiff Srinagar. He averred that he is the tenant in a shop owned by the defendant No. 1. Defendants 1 and 2 have been interfering with his possession and have been indulging in other acts of malfeasance to pressurize the plaintiff to vacate the shop. He, therefore, sought decree for permanent injunction against the defendants and also for mandatory injunction for compelling the defendants to reconstruct the demolished wall. The defendants in their written statement denied the plaintiffs claim and pleaded that the plaintiff had already surrendered the possession of the shop of his own accord as that shop was in a dilapidated condition and there were huge amounts of rent outstanding against the plaintiff.

(2.) ON the application of the plaintiff the court passed an interim injunction against the defendants temporarily restraining them from interfering with the possession of the plaintiff. During the progress of the trial of the case the plaintiff moved an application for contempt in the trial court averring therein that the defendant forcibly turned out the plaintiff from the shop and thus violated the interim order of the court. On this application the court invited objections of the defendants. Proceedings however, continued. The plaintiff did not seek any amendment of the plaint because of the subsequent event alleged by him. On conclusion of the trial in the main case the court found that the plea of the defendants that the plaintiff had surrendered the possession of the shop was not established. It further found that the plaintiff was in the possession at the time of institution of the suit, the possession of the plaintiff was disturbed during the pendency of the suit, the order of temporary injunction notwithstanding. The trial court, instead of passing the decree in terms of the reliefs sought for passed a decree for possession of the shop in favour of the plaintiff. On appeal filed before the Sub Judge (C.J.M.) the learned appellate court on appraisal of the evidence came to the conclusion that the plaintiff had not established that he was in possession of the suit property at the time of the institution of the suit. Further, the court held that the relief of possession granted by the trial court was outside the pleading of the parties. The trial court had erred in giving the relief which was not at all asked for by the plaintiff. No amendment was sought by the plaintiff in this behalf. For these reasons the appeal was allowed and the Judgment and decree of the trial court were set aside. Aggrieved by this judgment and decree of the first appellate court the plaintiff has come up in revision before this court.

(3.) SHRI J. N. Langer appearing for the petitioner has submitted that the first appellate court has misconstrued the provisions of 0.7, R.7 of the Code of Civil Procedure which confer power on the court to grant such relief as it may think just to grant. It is not necessary for the plaintiff to ask for general or other relief which the court could in the circumstances of the case grant to the plaintiff. Because the plaintiff had violated the order of interim injunction issued by the court against him during the pendency of the suit and by doing this the plaintiff had disturbed the status quo ante in respect of the suit property, therefore the court could take notice of the subsequent event and grant appropriate relief of possession to the plaintiff in order to secure the ends of justice.