KRISHAN v. LAXMI DEVI — 1994 DIGILAW 822 (DEL)

Devinder Gupta ( 1 ) IN this petition under Article 227 of the Constitution of India a prayer is made by the petitioner for setting aside an order passed on 11. 4. 1994 by Senior Sub Judge/delhi dismissing the petitioner s application seeking review of an order dated 24. 12. 1993 by which his appeal had been dismissed. ( 2 ) THE petitioner is a defendant and the respondent is the plaintiff in a civil suit which is presently pending in the Court of Ms. Sarita Birbal, Sub Judge, Delhi. On 30. 1. 1989 the suit was filed by the respondent claiming a decree for injunction against the petitioner restraining him from dispossessing her forcibly from Shop No. 2727, as shown in red in the site plan attached to the plaint. The respondent claimed that her husband was a tenant in the shop for the last twelve years who died two years ago and since the date of death of her husband she has been in occupation of the shop and carrying on business therein. Along with the suit an application for interim relief was made under Order 39 Rules 1 and 2 of the Code seeking temporary injunction. On 1. 2. 1989 an ex parte order was made directing status quo to be maintained. In pursuance to this the petitioner put in appearance on 7. 2. 1989 on which date neither written statement, nor reply to misc. application was filed. Reply and written statement were filed on 17. 2. 1989. ( 3 ) BEFORE the adjourned date an application was made under Order 39 Rule 2 A of the Code by the plaintiff-respondent alleging disobedience of the order of status quo. It was stated that on 7. 2. 1989 when the plaintiff had gone to attend the court, in her absence the defendant, accompanied by his brother-in-law Suresh with the help of police and some other bad elements raided the shop in question while the plaintiff s workers were inside. Both the workers were man handled, some papers were torn whereafter lock was put by the defendant on the shop. Thus, the status quo as existed till 7,12. 1989 was wilfully disturbed. On the plaintiff s prayer to the court, on 17. 2. Both the workers were man handled, some papers were torn whereafter lock was put by the defendant on the shop. Thus, the status quo as existed till 7,12. 1989 was wilfully disturbed. On the plaintiff s prayer to the court, on 17. 2. 1989 an order with the consent of the parties was made by the trial court that the property be sealed with the seal of the court till disposal of the misc. application. Ahlmed of the court was directed to visit the property and seal the same by putting a seal on the lock and taking the seal from the court of Administrative Sub Judge. On 16. 9. 1989 the defendant-petitioner made a statement in court that he himself was not doing any business at the shop. Rather his son and son of his sister-in-law used to work. Son of his sister-in- law had expired. Since his wife was looking after the work, therefore, he was not aware about the particulars of the goods lying in the shop. Keeping in view these facts court directed the Ahlmad to open the seal and prepare an inventory of the goods. ( 4 ) ON 16. 9. 1989 plaintiff-respondent s application under Order 39 Rules 1 and 2 of the Code was allowed. She was found prima facie to be in possession of the disputed shop on the date of institution of suit. Finding a prima facie case in her favour as well as balance of convenience, temporary injunction was granted against the petitioner restraining him not to dispossess her otherwise than in due course of law from the premises as shown in red in the site plan attached to the plaint. It is not disputed that an appeal against this order preferred by the petitioner was dismissed by the first appellate court on 24. 12. 1993 and the petitioner challenged the order of dismissal of appeal by filing Civil Revision No. 266/94, which was dismissed as withdrawn by this court on 21. 3. 1994 on statement made by counsel for the petitioner that revision be dismissed and instead the petitioner will move a review petition before the first appellate court. ( 5 ) THE petitioner on 30. 3. 3. 1994 on statement made by counsel for the petitioner that revision be dismissed and instead the petitioner will move a review petition before the first appellate court. ( 5 ) THE petitioner on 30. 3. 1994 filed an application seeking review of the order of dismissal of his appeal contending that it is the petitioner who is entitled to possession of the shop since he had put the lock on the shop. He prayed that an order he made for delivering possession of the shop in his favour. This application seeking review was dismissed on 11. 4. 1994 by the lower appellate court and it is this order which has been challenged by the petitioner in this petition. ( 6 ) FEW other facts which deserve to be noticed are that after the dismissal of the petitioner s appeal the respondent moved an application before the trial court that since the shop premises had been sealed under the orders of the court with the consent of parties and while disposing of the application under Order 39 Rules 1 and 2 of the Code the order of putting her back in the premises was held in abeyance, therefore, in view of dismissal of the petitioner s appeal, the shop premises be unlocked and she he allowed to carry on business in the premises as before. After notice to the petitioner an order was made on 25. 8. 1994 for de-sealing of the shops by removal of the lock and putting the plaintiff in possession. On another application moved by the plaintiff an order was made on 3. 9. 1994 for breaking open the lock and putting the respondent in possession with police assistance. Ahlmad was asked to visit the site on 5. 9. 1994 and put the respondent in actual possession by unlocking the shop premises. ( 7 ) TWO more applications were moved thereafter which were disposed of by the trial court on 12. 10. 1994. Before this date this petition had come up for admission on 1. 9. 1994. Before admitting the petition the records were summoned for 19th October, 1994. The petitioner had prayed for stay, which was declined at that stage. ( 8 ) IN pursuance to the orders of the trial court dated 3. 9. 10. 1994. Before this date this petition had come up for admission on 1. 9. 1994. Before admitting the petition the records were summoned for 19th October, 1994. The petitioner had prayed for stay, which was declined at that stage. ( 8 ) IN pursuance to the orders of the trial court dated 3. 9. 1994 local commissioner could not deliver possession on the specified date due to petitioner applying to the trial court for stay due to the pendency of the instant petition. The trial court stayed further proceedings. Fresh order was made by the trial court on 12. 10. 1994 for calling upon the local commissioner to visit the shop premises on 17. 10. 1994 for the purpose of unlocking the premises and putting the respondent in possession. This order passed on 12. 10. 1994 was challenged by the petitioner by filing Civil Revision 873/94 which has since been dismissed by this court on 17. 10. 1994. ( 9 ) IT is the contention of the learned counsel for the petitioner that lower appellate court ought to have allowed the reviewpetition and the same could not have been dismissed without looking at the record. Thus, directions are sought for disposal of the review petition of on merits. ( 10 ) LEARNED counsel for the parties have taken me through the entire record which has been called as also the documents filed with this petition. Three grounds were stated in seeking review of the order passed by the lower appellate court. One was of the identity of the property, the other being that no order could have been made for putting the respondent in possession since neither plaint had been amended nor issue as regards entitlement to possession had been decided on merits. Third ground being that no evidence was led on record and there was no application for restitution moved under Section 144 of the Code. The submissions deserve outright rejection. The question of identity of property has unnecessarily been raised by the petitioner, which was not at all raised in the written statement. The question that suit property had or had not correctly been described was not at all agitated by the petitioner in the trial court. Rather the petitioner had no doubt about the identity of the shop to which reference was made by the respondent plaintiff ill her pleadings. The question that suit property had or had not correctly been described was not at all agitated by the petitioner in the trial court. Rather the petitioner had no doubt about the identity of the shop to which reference was made by the respondent plaintiff ill her pleadings. It was with the consent of the parties that order of sealing of shop was made and the shop premises were also sealed in presence of the parties. It was with the consent of the parties that inventory of goods in the shop was ordered to be prepared. No objection was taken at that stage by the petitioner that the shop has not properly been described in the plaint or that the plan attached to the plaint was not correct. Thus, to say at this stage that dispute pertains to some other property or that the property is not properly identifiable is an afterthought which could not form subject matter of review petition. Otherwise also the lower appellate court in its order dismissing petitioner s appeal dealt with this arguments on merits. ( 11 ) THE other ground also deserves outright rejection. It was after the filing of suit that with the consent of parties by virtue of court s order premises were put under seal. On deciding the application under Order 39 Rules 1 and 2, the court prima facie found the respondent to be in possession of the shop premises as on the date of filing of the suit which order was affirmed in appeal. It was on the basis of these findings that the respondent s application under Order 39 Rules 1 and 2 was allowed and the petitioner was restrained from interfering with her possession and from dispossessing her otherwise than in due course of law. As a necessary corollary to this order the trial court was not only justified but was also duty bound to unlock the premises and put the respondent in actual possession. The contention of the learned counsel for the petitioner that some of the goods of the petitioner are lying in the premises also cannot be a ground for not putting the respondent in possession since in case, after the status quo order was disturbed, as alleged hy the respondent obviously the petitioner might have kept some goods in the premises. The contention of the learned counsel for the petitioner that some of the goods of the petitioner are lying in the premises also cannot be a ground for not putting the respondent in possession since in case, after the status quo order was disturbed, as alleged hy the respondent obviously the petitioner might have kept some goods in the premises. In the circumstances when lock had been put by virtue of court s order and respondent was prima facie held entitled to the possession, there was no need to move separate application under Section 144 of the Code of Criminal Procedure. There was also no question of recording of evidence at this stage on merits since status quo order was directed to be maintained and ultimately plaintiff was prima facie found to be in possession as on the date of suit. By putting the plaintiff respondent in possession, the trial court will not be doing anything else except maintaining status quo as on the date of suit which would he nothing but permitting as on the date of suit to be maintained which naturally has to be maintained for the duration of the suit. In these circumstances there is hardly any ground to interfere with the impugned order, which was passed rightly by the lower appellate court dismissing the petitioner s review application. ( 12 ) AS a result of above the petition is dismissed. Interim order is vacated. Since record has been called in this court, parties are directed to appear before the trial court on 10. 1. 1995. Trial court will now issue appropriate orders for putting the respondent in possession of the shop by having the seal opened and if necessary by breaking open the lock. In case of necessity, requisite police help will also be provided at the time of delivery of possession so that plaintiff-respondent is put in effective and peaceful possession of the premises for the duration of the suit, in view of the orders passed on application under Order 39 Rules 1 and 2 of the Code. ( 13 ) RECORD be sent back forthwith.