DUNICHAND ALIAS DULICHAND Vs. KISHOR CHAND

JUDGEMENT

(1.) THIS revision petition under Section 115, C.P.C., has been filed against the appellate judgment and order dated 16.4.96 passed by the learned Additional District Judge, Raisinghnagar in Civil Misc. Appeal No. 37/95, thereby accepting appeal against the order dated 9.10.95 passed by the Civil Judge (J.D.) and Judicial Magistrate, First Class, Raisinghnagar whereby the application filed under the provisions of Order 39 Rules 1 and 2 and Section 151, C.P.C. for issuance of temporary injunction against the petitioner defendant was rejected.

(2.) BRIEFLY stated, the facts relevant for the disposal of the present petition, are that the plaintiff who is presently respondent in this petition, filed a civil suit in the lower Court for permanent and mandatory injunctions pleading that the suit premises, as described in the plaint itself, was of the ownership of the defendant, who is presently petitioner, and the demised premises consists of a shop and a verandah measuring 10 ft. x 15 ft. situated in front of the shop. In the rear portion of the demised shop a portion measuring 10 ft x 11 ft. is covered over 'ballies' (wooden-logs). Adjoining to the rear wall of the demised premises, there is residential portion of the defendant-landlord. The defendant, with an ulterior and mala fide intention often commits mischief by discharging water on the rear wall of the shop which separates the premises of the landlord and the one so demised to the plaintiff. Some damage has been caused to the roof of the shop thereby creating some holes in the roof as a result of which water falls into the demised premises of the plaintiff as a result of which it creates great hindrance and obstruction in smooth running of business by the plaintiff in the demised premises. Besides, the defendant has got disconnected the electricity connection of the demised premises. The defendant-landlord also previously filed a civil suit for eviction of the present plaintiff from the suit premises and the lower Court decreed the suit of the defendant by awarding a decree for eviction of the plaintiff from the suit premises on 7.8.82. The plaintiff-tenant being aggrieved by the decree of the lower Court preferred Civil Appeal No. 09/82 titled as Kishor Chand v. Dunichand alias Dulichand in the Court of Additional District Judge, Raisinghnagar and the same was accepted on 10.8.82 thereby reversing the decree of eviction passed against the plaintiff-tenant and the same was never challenged. The defendant having not been able to evict the plaintiff in due course of law, has been devising ways and means to somehow force the plaintiff-tenant to vacate the suit premises and, as a result, he has been creating mischief, as stated above. The tenanted premises were also not got repaired and kept in a tenantable, safe and secure conditions as required by the provisions of Section 20 of the Rajasthan Premises (Control of Rent of Eviction) Act, 1950 and, therefore, while seeking relief of issuance of permanent and mandatory injunctions, simultaneously, an application for issuance of temporary injunction, as above, was filed in the trial Court. The trial Court, while disposing of application for temporary injunction vide its order dated 9.10.95, held that no relationship of a landlord and a tenant was established and, as a result, in absence of contract or relationship of landlord and tenant between the litigating parties, no prima facie case has been made out in favour of the plaintiff and, consequently, holding that there did not arise any question of any irreparable injury resulting to the plaintiff and so the balance of convenience also, being not in favour of the plaintiff, the application was dismissed and, being aggrieved, the plaintiff preferred appeal in the Court of Additional District Judge, Raisinghnagar, as above, which was accepted by the learned trial Judge vide impugned judgment and order dated 16.4.96 thereby holding that a relationship of a tenant and a landlord between litigating parties was fully established and the contrary view taken by the learned trial Judge was erroneous and, consequently, a temporary injunction was issued against the defendant-petitioner thereby restraining him from causing any obstruction or hindrance in the repairing works to be carried out by the plaintiff-respondent and, at the same time, the petitioner was injuncted to immediately restore the electricity connection to the demised suit premises, with a further direction not to cause any obstruction or hindrance either in the use and occupation of the suit premises by the plaintiff-tenant and as well as in the use of electricity. Alternatively, it was also ordered that in case of failure of the defendant's landlord to get the electricity connection restored, the plaintiff-tenant was entitled to get the electricity connection restored in his own right.

(3.) I have heard the learned counsel for the petitioner as well as the learned counsel for the respondent and have also perused and considered the legality, propriety and regularity of the same.