JUDGMENT 1. - This is defendant's revision against the order of the learned Addl Civil Judge No. 1., Jodhpur dated 26.8.83 accepting the plaintiff's appeal against the order of the learned Addl. Munsiff No. 1, Jodhpur, dated 12.12.82 refusing temporary injunction in favour of the plaintiff, thereby granting an injunction in favour of the plaintiff. 2. The facts giving rise to this revision briefly stated are that the present petitioner Surajmal had filed a suit against Sevagram, who is defendant No. 2 in the present suit alleging that he was the tenant of the petitioner in respect of the shop with effect from 20.3.65 under a written rent note, which he had executed in favour of the petitioner as proprietor of M/s India Motors. In that suit summons were issued to Sevag Ram but he was not served and thereafter substituted service was directed against him. The summons were published in Tarun Rajasthan but despite that service, Sevag Ram did not appear. While the suit was under proceedings, the non-petitioner No. 1 Jaffarullah moved an application under Order 1 Rule 10, C.P.C. for being impleaded as a party to that suit alleging that he was the real tenant of the shop and that Sevag Ram was not the tenant and the suit had wrongly been filed by Suraj Mal against Sevag Ram. Therefore, non-petitioner No. 1 Jaffarullah should be impleaded as a party to that suit in order to safeguard his rights. This application was, however, dismissed on 1.5.1978 and a revision filed by Shri Jafarullah was also dismissed by this Court. Thereafter an ex parte decree was passed against Sevag Ram in that suit on 18.12.78. 3. Now Jafarullah has filed the present suit for getting that decree set aside, alleging that he was the tenant of Suraj Mal in the premises in dispute. He had neither entered the shop as a sub-tenant of Sevag Ram nor his transferor, Suraj Mal cannot execute that decree against the present plaintiff non-petitioner No. 1. His case further was that he had paid rent of the plaintiff and had produced a receipt in that respect. Along with the suit, the plaintiff also applied for a temporary injunction restraining Suraj Mal from ejecting him from the premises in dispute in execution of the aforesaid ex parte decree against Sevag Ram. The petitioner-defendant No. 1 contested the suit as well as the application. Along with the suit, the plaintiff also applied for a temporary injunction restraining Suraj Mal from ejecting him from the premises in dispute in execution of the aforesaid ex parte decree against Sevag Ram. The petitioner-defendant No. 1 contested the suit as well as the application. He denied that Jaffarullah was his tenant and maintained that he was the sub-tenant or transferee of Sevag Ram and, therefore, he was liable to be ejected in pursuance of the decree obtained by the petitioner-defendant No. 1 against Sevag Ram, who was defendant No. 2 in this suit. After hearing the parties, the learned Addl. Munsif dismissed the application for temporary injunction by his order dated 12.10.82. Jaffarullah thereupon filed an appeal, which was heard by the learned Addl. Civil Judge No. 1, Jodhpur who accepted the appeal and granted temporary injunction in favour of the plaintiff-non-petitioner No. 1 against the petitioner defendant No. 1 restraining him from ejecting the non-petitioner No. 1 from the suit premises in execution of the decree obtained by him against Sevag Ram non-petitioner No. 2. 4. I have heard the learned counsel for the parties and have gone through the record. 5. It is contended by the learned counsel for the petitioner that the learned Addl. Civil Judge acted illegally and with material irregularity in the exercise of his jurisdiction in reversing the order of the learned Addl. Munsif and granting a temporary injunction in favour of non-petitioner No. 1 without taking into consideration the necessary conditions for grant of temporary injunction. It was contended that the learned Addl. Civil Judge was merely led away by the fact of the possession of non-petitioner No. 1 on the suit premises in holding that there was a prima facie case in his favour and if he was dispossessed, he would suffer irreparable injury and that the balance of convenience was in his favour and if he was dispossessed, he would suffer irreparable injury and that the balance of convenience was in his favour whereas the mere possession in the circumstances of case was absolutely of no avail to the plaintiff because the possession was not in dispute. What was in dispute was the nature of the plaintiff's possession. What was in dispute was the nature of the plaintiff's possession. It was for the plaintiff to prima facie establish that he was the tenant of the petitioner or in any case, he was not bound by the decree obtained by the petitioner against non-petitioner No. 2. The learned Addl. Civil Judge, according to the learned counsel for the petitioner did not advert to this most essential part of the matter and, therefore, his order is clearly vitiated by in error of jurisdiction. It was also contended by him that there was absolutely no material on record to show that the non-petitioner No. 1 was ever accepted by the petitioner as his tenant or that he was admitted as a sub-tenant of Sevag Ram with the plaintiff's consent. On the other hand, the learned counsel for non-petitioner No. 1 supported the order of the learned Addl. Civil Judge had jurisdiction to pass the order, he has passed and, therefore, this Court cannot and should not interfere with the discretion exercised by the learned Addl. Civil Judge. In connection with his contention that no interference should be made in revision, the learned counsel placed reliance upon Delhi Municipality v. Suresh Chandra, ( AIR 1976 SC 2621 ), M/s. Ramji Lal Mohinder Kumar v. Naresh Kumar, (AIR 1984 Delhi 95), M/s. Apsra Hotels (P) Ltd. Delhi v. Rajputana Hotels (P) Ltd. Jaipur, (AIR 1981 N.O.C. 201 Rajasthan), and Maitreyee Banerjee v. Prabir Kumar, ( AIR 1982 SC 17 ). 6. I have given my careful consideration to the rival contentions. So far as the question of interference in revision is concerned, I am clearly of the opinion that the order of the learned Addl. Civil Judge suffers from an error of jurisdiction inasmuch as he has completely failed to take into consideration the most relevant factor as to the nature of the plaintiff's possession into consideration while considering the question of temporary injunction. He has mainly relied upon the fact that the plaintiff is in possession of the suit premises but the mere possession in the present case was not of any importance inasmuch as if the possession of the plaintiff appeared to be either as a sub-tenant or a transferee of the non-petitioner No. 2 Sevag Ram he would be bound by the decree passed against Sevag Ram. He could obtain a temporary injunction on the basis of his possession only if he could prima facie establish that he was either the tenant of the petitioner Suraj Mal or that he had been a sub-tenant of Savag Ram with the permission of the petitioner Suraj Mal. The learned counsel for the non-petitioner also placed much emphasis on the plaintiff's possession over the suit premises in justifying the temporary injunction granted by the learned Addl. Civil Judge and in this connection, he placed reliance upon Hari Shanker v. Satya Prakash, ILR (1962) 32 Rajasthan 995) , M/s. Ramjilal Muhinder Kumar's case (supra) and Ganhikhan v. Amnabai, (AIR 1962 Madhya Pradesh 190). But as already stated above, mere possession in the present case is of no significance and, therefore, these authorities do not apply to the present case, thus the revision lies. 7. It was contended by the learned counsel for non-petitioner No. 1 that the revision is not maintainable because the petitioner would not suffer any irreparable loss because the present plaintiff is already paying and is ready and willing to pay in future the rent of the premises. I am not convinced with this contention. The grant of injunction would deprive the petitioner from the fruits of the decree. Now the position that prima facie emerges from the material on record is that the plaintiff has not been able to establish that he was the tenant of the present petitioner Suraj Mal as alleged by him. In this connection, the first and the foremost factor is that plaintiff Jaffarullah has not at all pleaded in his plaint as to how he became the plaintiff's tenant. It was for the plaintiff to have shown how he entered the premises as the plaintiff's tenant and that the absence of clear averment in this respect gives rise to an inference against him. Strong reliance was placed by the learned Addl. It was for the plaintiff to have shown how he entered the premises as the plaintiff's tenant and that the absence of clear averment in this respect gives rise to an inference against him. Strong reliance was placed by the learned Addl. Civil Judge as also the learned counsel for non-petitioner No. 1 on receipt No. 108 dated 18.12.70, which is sold to have been granted by the present petitioner in favour of Indian Motors even after Sevag Ram had already left the suit premises in Jodhpur and had gone away to Calcutta but in my opinion, that receipt does not in any way establish that the plaintiff admitted Jaffarullah or the partners of the firm India Motors (the plaintiff claims that India Motors is a partnership deed and assessment orders to which I shall presently refer). The receipt is in the name of India Motors and not in the name of Jaffarullah or the partnership firm. The case of the present petitioner is that Sevag Ram had taken the premises on rent from him as a sole proprietor of M/s. India Motors. This fact has been admitted by Sevag Ram defendant No. 2 and has also not been controverted by the present plaintiff. In these circumstances, the grant of receipt in favour of India Motors does not establish that the India Motors is a partnership firm accepted by the petitioner as his tenant. Reliance was also placed upon a partnership deed dated 6.2.70 in which Jaffarullah was shown as a partner but according to the defendant-petitioner, this document is a very suspicious document and is not admitted by him. It is pointed out that this document was not produced before the Income Tax Officer and the assessment order dated 23.7.73 for the year 1971-72 clearly shows that Jaffarullah was not a partner in the firm India Motors in that year. This shows that his document has been manufactured later on. If further appears that this document is on a stamp worth Rs. 3/- whereas a partnership deed is required to be on a stamp of Rs. 30/-. Further this stamp paper worth Rs. 3/- appears to have been purchased for the purpose of obtaining some copy as would appear from the endorsement on its back. If further appears that this document is on a stamp worth Rs. 3/- whereas a partnership deed is required to be on a stamp of Rs. 30/-. Further this stamp paper worth Rs. 3/- appears to have been purchased for the purpose of obtaining some copy as would appear from the endorsement on its back. It is pertinent to note that this endorsement has not been show on the back of the photostat copy of this document produced in the court. But the learned counsel for the petitioner has shown me a certified copy of the document bearing this endorsement and this fact has not been controverted by the learned counsel for non-petitioner No. 1. 8. A partnership agreement of the year 1981 (dated 28.7.81) photostat copy of which has also been filed by the plaintiff on record states in the first para that the partnership had been carrying on business with effect from 13.7.72 under a deed of partnership executed on 2.1.73 has not been produced before the trial Court. However, the learned counsel for the non-petitioner has today produced a photostat copy of the document for my perusal but at this stage, it would not be proper to take into consideration this document. The matter does not rest here. The plaintiff has produced a receipt No. 371 dated 3.5.73. This receipt is in the name of Sevag Ram as proprietor of M/s. India Motors. There is no explanation why the plaintiff had obtained this receipt in the name of M/s. India Motors in 1973 when according to him, he had become the plaintiff's tenant in 1970 itself. The learned counsel for the non-petitioner, of course, tried to explain that objection was raised by plaintiff to this receipt but there is nothing on the record to support this contention. Therefore, on the basis of the receipt and the partnership deeds, the plaintiff cannot prima facie be said to have established his possession as a tenant of the present petitioner defendant No. 1. 9. On the other hand, there are circumstances, which give rise to an inference that the plaintiff is either a sub-tenant or a transferee from Sevag Ram. As already stated above, the plaintiff has not explained how he became the tenant of the present petitioner defendant No. 1 and he had been obtaining receipts in the name of the original tenant Sevag Ram. As already stated above, the plaintiff has not explained how he became the tenant of the present petitioner defendant No. 1 and he had been obtaining receipts in the name of the original tenant Sevag Ram. Further the stand taken by the plaintiff and that taken by defendant No. 2 Sevag Ram in this suit are opposed to each other inasmuch as according to the plaintiff, Sevag Ram had nothing to do with the shop in question at all the plaintiff was direct tenant of defendant No. 1 whereas Sevag Ram has clearly admitted that he had taken the premises on rent as proprietor of M/s. India Motors from the petitioner but latter in 1970, he discontinued his business and went away to Calcutta after transferring the goodwill and name of the business to the plaintiff. And the premises were taken over by M/s. India Motors through Jaffarullah with the consent of the present petitioner. It is pertinent to note that there is no reliable evidence prima facie to show that the petitioner had ever agreed to the transfer possession of the shops from Sevag Ram had vacated the premises and handed over the same to the present petitioner so that the plaintiff non-petitioner No. 1 could have taken them on lease from the petitioner as alleged by him. He has placed the material on record to establish this. The learned counsel for non-petitioner No. 1 urged that the fact that Sevag Ram had already left Jodhpur and still the plaintiff obtained an ex parte decree against him without impleading Jaffarullah despite his application under Order 1 Rule 10 C.P.C. goes to show that the decree has been surreptitiously obtained by him. Not only this, he further contended that decree has been obtained on the basis of forged or fictitious receipts filed in the suit by Suraj Mal against Sevag Ram. I am unable to accept this contention at this stage. In the first place, there is nothing to show that merely because Sevag Ram was not residing at Jodhpur, it should be presumed that Jaffarullah became the petitioner's tenant. I am unable to accept this contention at this stage. In the first place, there is nothing to show that merely because Sevag Ram was not residing at Jodhpur, it should be presumed that Jaffarullah became the petitioner's tenant. The fact that the receipts filed in the earlier suit by the petitioner against Sevag Ram were forged has not been pleaded either by the plaintiff or even defendant No. 2 in the present suit and, therefore, the learned counsel cannot raise such a plea for the first time before this Court. 10. It was also contended by the learned counsel that the plaintiff-non-petitioner No. 1 had moved an application under Order 11 Rule 14, C.P.C. requesting for the production of the counter-foils of the receipts, which were in possession of the present petitioner but that application was wrongly rejected and the petitioner failed to produce those counter-foils. It was urged that the plaintiff wanted these counters-foils to show his signatures on them to establish that the petitioner had accepted him as his tenant. According to him, the non-production of these documents give rise to an inference against the petitioner. He placed reliance upon Kaly v. Sankar Kaln, (AIR 1961 Madhya Pradesh 346) in this respect. In my opinion, even if this contention is accepted, it would not be of any avail to the non-petitioner because even if it is assumed that these counter-foils contained the signatures of Jaffarullah, it would not mean that the petitioner had accepted him as his tenant because admittedly those receipts are in the name of India Motors and in the name of Jaffarullah. 11. The learned counsel for the non-petitioner also tried to make out an argument that the plaintiff wanted to cross-examine the petitioner on his affidavit but the court did not allow this prayer and, therefore, he could not bring out the necessary material from the petitioner's cross-examination. In my opinion, this contention is also not open to the petitioner now inasmuch as if that was the grouse, he could have raised it before the first appellate court so that at that stage, this lacuna, if any, could have been made good but he proceeded to argue the appeal without getting this lacuna filled up. Now he cannot turn round and complain about it. 12. In the above circumstances, it is abundantly clear that the learned Addl. Now he cannot turn round and complain about it. 12. In the above circumstances, it is abundantly clear that the learned Addl. Civil Judge clearly acted illegally and without material irregularity in holding that the plaintiff had prima facie case. 13. So far as the other two conditions for the grant of temporary injunction are concerned, they also have been held by the learned Addl. Civil Judge to be in favour of the plaintiff merely on the basis of possession. But when even the first condition, namely, prima facie case in favour of the plaintiff is lacking, the finding about the balance of convenience and irreparable injury would fall in the circumstances of this case because merely on the basis of possession, the plaintiff cannot claim that he would be suffering irreparable injury if he is dispossessed in the execution of the decree against Sevag Ram. Not only this, when the petitioner has already obtained a decree against Sevag Ram and he executes the same he cannot as said to be causing any injury to the plaintiff if he is bound by that decree. Reference may be made to Lakha Singh v. Asoken, (AIR 1973 Madras 258), Prabhakar v. Davaram, (AIR 1980 Madhya Pradesh 125) and Pannalal Bafna v. Kalpana Rani, (AIR 1983 Calcutta 11). 14. In the above circumstances, the balance of convenience also cannot be said to be in favour of the plaintiff. 15. From what has been stated above, it is clear that the plaintiff in the present case was not entitled to any temporary injunction and, therefore, the learned Addl. Civil Judge acted illegally and with material irregularity in granting him a temporary injunction. Order, therefore, cannot be maintained. 16. I, therefore, accept this revision, set aside the order of the learned Addl. Civil Judge and restore that of the learned Addl. Munsiff. The petitioner shall be entitled to his cost of the revision.Revision accepted. *******