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1993 DIGILAW 811 (RAJ)

Sunil v. Shyam Singh

1993-12-09

M.C.JAIN

body1993
JUDGMENT : 1. The main appeal has been filed against the order of the learned District Judge, Jodhpur dated November 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 Section 151, C.P.C. in a suit filed under Section 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 Section 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 Section 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 Section 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 Section 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 Section 6, Specific Relief Act is not maintainable. He relied upon Kamini v. 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 relied upon Kamini v. 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 AIR 1991 Rajasthan 94, Kailash Chandra v. 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. 4. In reply, it has been contended by learned counsel for the plaintiff-respondent that the plaintiff was in occupation of the suit premises before it was sold by its previous vender to the defendants, thereafter M/s. Jai Narain Modi & Sons got his signature on a rent-note, he treated them to be his new land-lord, it was a paper transaction, in the ejectment suit filed by the firm against him, he has made payment of about Rs. 70,000/-, the ejectment suit filed by the defendants against M/s. Jai Narain Modi & Sons the plaintiff was not impleaded as a party despite the fact that he was in actual and physical possession of it, the suit was collusive, he was not bound with the decree passed in it, the defendants have not disclosed necessary particulars regarding the creation of tenancy in favour of M/s. Jai Narain Modi & Sons by the new owner and payment of rent by them to the defendants and in M/s. Jai Narain Modi & Sons some of their relatives are partners. He also contended that if the device adopted by the defendants is approved by the Court, no tenant would be safe as land-lords may get rent-notes executed in their favour by their henchmen and by tenants in favour of their henchmen, file suits against them (henchmen), obtain decrees against them and in execution thereof get so called sub-tenant (tenant) ousted. He lastly contended that the impugned order if allowed to stand, would not occasion failure of justice or cause irreparable injury to the defendants as the plaintiff was in occupation and possession of the suit premises as a tenant prior to its sale in their favour and, on the contrary, the plaintiff would suffer an irreparable injury if he is not allowed to re-occupy the same, put his articles and goods therein, and carry on his business therein. He relied upon Peer Gulam Naseer v. Peer Gulam Jolani, 1988 (2) R.L.R. 871 , Vimla Devi v. Jang Bahadur, AIR 1977 Raj. 196 , Mohd. Hussain v. Abdul Rahim, 1988 (2) R.L.R. 113 , Gulam Abbas v. Iqbal & others, 1984 W.L.N. 707 and Veer Chand v. Mool Chand & others . 5. While deciding the stay application, it is neither necessary nor expedient to decide points which have been raised during arguments. It would be enough to mention here that in the ejectment suit filed by the defendants against M/s. Jain Narain Modi & Sons, the plaintiff was not made a party despite the fact that he was in occupation and possession of the suit garage even prior to its purchase by them, the suit was not contested, it is their case that he was in occupation and possession as a sub-tenant, he was paying rent @ Rs. 1,000/- p.m., some of the defendants (landlord) and their relatives are partners in M/s. Jai Narain Modi & Sons (tenant), necessary particulars of the tenancy created by the defendants in favour of M/s. Jai Narain Modi & Sons have been given and no notice of any kind was given to the plaintiff before he was dispossessed and his articles and goods were removed from the suit garage. 6. Para No. 11 of the order of the learned District Judge, Jodhpur runs as under : VARNACULAR MATTER OMITTED These findings have not at all been challenged either in the memo of appeal or in the revision petition. It has also not been staled in the stay application as to how the balance of convenience is in favour of defendants and that he would suffer an irreparable loss if stay is not granted. 7. The defendant-appellant-petitioner has moved an application that if the appeal is not maintainable in view of Section 6(3), Specific Relief Act, it may be treated as a revision petition under Section 115, C.P.C. The proviso of subsection (1) of Section 115, C.P.C. runs as under : "Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where - (a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding, or (b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the .party against whom it was made." Under the facts and circumstances of the case, it cannot be said that the order under challenge, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the defendant-appellant. If the ejectment suit would have been contested by M/s. Jai Narain Modi & Sons or the plaintiff would have been impleaded as a party decree would not have been passed, soon. 8. Accordingly, the stay application is dismissed. The plaintiff will deposit the arrears of rent upto 30.11.1993 and continue to deposit rent at the rate of Rs. 1,000/- p.m. in the Court of District Judge, Jodhpur regularly. 8. Accordingly, the stay application is dismissed. The plaintiff will deposit the arrears of rent upto 30.11.1993 and continue to deposit rent at the rate of Rs. 1,000/- p.m. in the Court of District Judge, Jodhpur regularly. If the amount of arrears of rent (minus the rent of the period the plaintiff was out of possession) is not deposited within one month from today or there is delay of more than one month in depositing the rent of any month, the learned District Judge, Jodhpur will pass appropriate order to enforce this order regarding the payment of arrears of rent and rent of subsequent months.Appeal disposed of accordingly.