MOHAMMAD SALIM Vs. SHAHIN SAH

JUDGEMENT

(1.) By the instant writ petition the petitioner has challenged the order dated 18-10-2005 passed by the Civil Judge (Jr. Div.) (South), Kota whereby the applications for temporary injunction as well as mandatory injunction for restoration of the possession has been accepted. The said order has remained upheld in appeal by the Additional District Judge No. 1, Kota vide his order dated 30-11-2005.

(2.) Briefly stated the relevant facts of the case are that the plaintiff-respondents filed a civil suit for permanent injunction along with an application for temporary injunction but when the plaintiff-respondents were dispossessed from the shop in question, they filed an application for mandatory injunction with the prayer for restoration of the possession. In both the applications, it has been averred by the plaintiff-respondents that they are tenant of the petitioner and running a beauty parlour in the shop of House No. 4-Cha-5 of Vigyan Nagar, Kota. The shop was taken on rent by Mohd. Siddique, the brother of plaintiff-respondent No. 1 from the petitioner initially at Rs. 800/ - per month w.e.f. 1-1-1999, subsequently, the same was increased to Rs. 1,700/- per month. The further case of the plaintiff-respondents is that during the pendency of the civil suit and application for temporary injunction, they were dispossessed forcibly from the shop in question on 23-9-2005 when the plaintiff-respondent No. 1 was out of station.

(3.) The case of the petitioner before the trial Court was that the shop in question was given to one Mohammed Atique on 4-2-99 and the possession of which has been handed over to him on 1-9-2005 by the alleged tenant Mohammed Atique. Therefore the temporary injunction become infructuous and mandatory injunction is not maintainable as possession was handed over to him before filing the civil suit.