MADAN LAL Vs. BADRI NARAYAN

JUDGEMENT

(1.) This revision petition has been filed against the order dated 23-3-1987 passed by the learned Additional District Judge No. 1, Jaipur City, Jaipur in Misc. Petition No. 54/87 confirming the order dated 17-3-87 passed by the Additional Munsiff and Judicial Magistrate No. 4, Jaipur City, by which the application of the petitioner under O.39 Rr. 1 and 2, CPC was dismissed.

(2.) The shop in dispute was mortgaged with the non-petitioners Nos. 6 and 7 for a sum of Rs. 6500/- for a period of 10 years by a registered mortgage deed dated 11-1-1968 and vacant possession of the same was handed over to the mortgagees. The mortgagees by virtue of powers vested in them according to the mortgage deed, gave the shop in dispute on rent to the present petitioner at the rate of Rs. 80/- p.m. The mortgagor filed a suit for redemption on 22-5-75 and a preliminary decree in his favour was passed on 11-7-79. On appeal, this preliminary decree was modified vide order dated 15-9-81 and final decree holding that the mortgagor was entitled to take actual possession of the shop in suit, was passed on 29-6-82. On 3-8-82 a suit for permanent injunction was filed by the present petitioner-tenant praying that he should not be dispossessed in this decree, which is passed in favour of the mortgagor. The trial Court allowed the application of the petitioner and issued a temporary injunction on 11-8-82 restraining the non-petitioners from dispossessing the petitioner. In appeal by the mortgagor the temporary injunction issued by the trial Court was vacated on 18-11-1982. The tenant petitioner came in revision before this Court and keeping in view the importance of the question of law involved in the petition, the learned single Judge referred the matter to the Full Bench of this Court. The Full Bench after hearing both the parties on 28-8-84 held that the rights of the petitioner as tenant ended with the rights of the mortgagees who inducted him as tenant in the disputed shop. Thereafter, the Full Bench sent the revision petition back to the learned single Judge for disposal in accordance with law. The petitioner filed a special leave petition in this Court against the opinion of the Full Bench, which was rejected by this Court with the remarks that the Full Bench of this Court has only delivered an opinion on the question of Law. Learned single Judge vide its order dated 15-10-1984 dismissed the revision petition and refused to issue the temporary injunction in favour of the petitioner. The petitioner approached the Supreme Court against the said order of dismissing the revision petition and the Apex Court decided the same vide its order dated 17-2-87. The petitioner again filed an application under O.39, Rr. 1 and 2, CPC in the trial Court praying that since the Apex Court vide its order dated 17-2-87 has directed that the trial Court will frame the necessary issues on the question whether the alleged lease was an act of prudent management within the purview of S.76(a) of the Transfer of Property Act, there being a stipulation in the mortgage deed to permit the mortgagee in possession to lease out the mortgage property. It was further directed that the trial Court shall afford the parties an opportunity of adducing their evidence on the questions. It was, therefore, urged by the petitioner in the trial Court that in view of the above order of the Apex Court, a temporary injunction should be issued in favour of the petitioner restraining the non petitioners from dispossessing him during the pendency of the suit. The trial Court dismissed the application on the ground that the non petitioners Nos. 1/1 to 1/7 have not been joined as party after the death of non petitioner No. 1, therefore, no temporary injunction can be issued against them. It also remarked that the matter is res judicata as the first similar application filed by the petitioner has been rejected and also the fact that this application for issue of temporary injunction has been filed on the same facts, on which the earlier application was filed and rejected. Thus there were no grounds which may change any circumstances to call for issue of any fresh temporary injunction in favour of the petitioner. The petitioner against this order went in appeal and the learned Additional District. Judge also dismissed the appeal of the petitioner holding that the first application of the petitioner for issue of temporary injunction was also dismissed and he finds that it will not be proper to issue temporary injunction in favour of the petitioner now and that the Apex Court had directed that the parties should be permitted to produce evidence whether the giving out of the property on lease was an act of prudent management as per the provisions of S.76(a) of the Transfer of Property Act and the Apex Court also did not accept the prayer of the petitioner for issue of temporary injunction in his favour restraining the non-petitioners not to dispossess him during the pendency of the proceedings in the trial Court.

(3.) The contention of the learned counsel Shri A.K. Bhandari appearing for the petitioner is that the circumstances have changed after the passing of the order dated 17-2-87 by the Supreme Court. It is pointed out that the principles of res judicata have been wrongly applied to this matter by the learned trial Court in view of the case of Arjun Singh v. Mahendra Kumar, AIR 1964 SC 993. In this case while considering the application under O.9, Rr. 7 and 13, CPC, it was observed by their Lordships as under :-