MANGI LAL Vs. KAILASH CHAND SHARMA

JUDGEMENT

(1.) This is a plaintiff's revision against the order of the Additional District Judge No. 5, Jaipur City, Jaipur, dated 13-10-1981 upholding the order of the learned Munsiff, Jaipur East, Jaipur dated 22-9-1981 dismissing the plaintiff's application under Order 39, Rules 1 and 2, C. P. C.

(2.) One Govind Lal obtained an ex parte decree for eviction against Kailash Chand defendant non-petitioner. Kailash Chand defendant non-petitioner filed an appeal against the decree for eviction and obtained a stay order from the appellate Court on 7-9-78, which was communicated to tbe trial Court on 16-9 78. In spite of the above stay order, it appears that Govind Lal obtained possession over the suit shop in execution of the decree on 16-1-1979. Kailash Chand filed an application for restitution of possession but the same was disallowed by the executing Court. Kailash Chand thereafter, filed a revision in this Court and the revision was contested by Govind Lal. This Court, however, on 6-5-1981 allowed the revision taking the view that after the communication of the stay order passed by the appellate Court, the trial Court had no jurisdiction to allow possession to Govind Lal in execution of the decree. It was further observed that the petitioner Kailash Chand was entitled to restoration of possession under Section 151, C. P. C. as it was a mistake of the Court in giving possession to Govind Lal. In the meantime during the pendency of the revision. Govind Lal let out the suit shop to the plaintiff-petitioner on 24-5-78. Kailash Chand defendant non-petitioner wanted to take possession in pursuance to the order of the High Court dated 6-5-81, the petitioner Mangi Lal filed the present suit for injunction restraining the defendant Kailash Chand from taking over the possession of the suit shop and an application under Order 39, Rules 1 and 2, C. P. C. Both the lower Courts dismissed the application for temporary injunction filed by the petitioner. In these circumstances, the plaintiff Mangi Lal has filed this revision.

(3.) It is contended by Mr. Patodiya, learned counsel for the petitioner that the petitioner Mangi Lal was a bona fide transferee in possession over the suit property. He had no knowledge about any litigation between Govind Lal and Kailash Chand and it was not proper for the Courts below to have refused injunction without making any enquiry in the suit. Reliance in this regard is placed on Sham Lal v. Jaswant Kaur, (AIR 1980 Delhi 171), in which it was held : "Where on eviction of a tenant in execution of an ex parte decree for eviction, another tenant who was unaware of the litigation was inducted and the earlier decree for eviction subsequently reversed, the evicted tenant could not be presented possession when the tenant subsequently inducted opposed it. He would be entitled to protection of Section 14. To such a case, Section 144, C. P. C. was not applicable". It is also argued that though the defendant non-petitioner had not filed any reply, the lower Courts took into consideration the facts which were not supported by any document placed on record.