SUNIL Vs. SHYAM SINGH & ORS.

JUDGEMENT

(1.) The main appeal has been filed against the order of the learned District Judge, Jodhpur dated Nov. 23,1993 by which he has allowed die application of the plaintiff-respondent No. 1 Shyam Singh moved under Order 39 Rules 1 & 2 and Sec. 151, C.P.C. in a suit filed under Sec. 6, Specific Relief Act and has directed the defendant-appellant and defendant-respondents No. 2 to 9 to immediately restore die actual and physical possession of die disputed premises to him and not to effect any change therein till then. Along with the appeal, an application for stay of the operation of the impugned order has been moved.

(2.) On 26.11.1993, arguments on the stay application were heard. On 30.11.1993, the plaintiff was directed to make clear as to whether his suit is under Sec. 6, Specific Relief Act or not and the defendant-appellant was also directed to show as to how the appeal is maintainable if the suit is under Sec. 6, Specific Relief Act. In pursuance thereof, the defendant-appellant filed an application that the appeal is maintainable and if, for any reason, it is held not to be maintainable it may be treated as a revision petition-under Sec. 115, C.P.C. and a revision petition has also been filed along with it. The plaintiff-respondent also moved an application that his suit is under Sec. 6, Specific Relief Act.

(3.) It has been contended by learned counsel for the defendant-appellant that the plaintiff-respondent has been dispossessed in execution of die ejectment decree obtained by the defendants against M/s. Jainarain Modi & Sons, the firm was the tenant-in-chief, the plaintiff was in occupation of the suit premises as a sub-tenant of the said tenant-in-chief, he was dispossessed in due course of law and as such the suit under Sec. 6, Specific Relief Act is not maintainable. He relied upon Kamini Vs. Sahib Sheikh & others, 14 Cal. Weekly Notes 409. He further contended that in a suit for ejectment against the tenant, the sub-tenant is not a necessary party and placed reliance upon, AIR 1953 SC 73. He also contended that the plaintiff admits in his written-statement that he had executed a rent-note in favour of M/s. Jai Narain Modi & Sons (tenant-in-chief) in the year 1985, he thus attorned to them and as such it is not open to him to say that he was in occupation and possession of the suit premises as a tenant-in-chief. He further contended that the learned trial Court had no justification to issue a mandatory injunction directing the defendants to restore the possession of the suit garage to the plaintiff when the latter was dispossessed under Order 21 Rule 99, C.P.C. He also contended that the appeal is perfectly maintainable as the impugned order was not passed in the main suit and it was passed on an application moved under Order 39 Rules 1 & 2, C.P.C. He relied upon A.I.R. 1991 Rajasthan 94, Kailash Chandra Vs. Govind Ram, 1961 R.L.W. 95. In the alternative, he contended that if the appeal is held not maintainable, it may be treated as a revision petition as requisite court-fee has already been paid and revision petition is still within limitation. He lastly contended that the learned trial Court acted with material irregularity and illegality in passing the impugned order.