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2000 DIGILAW 321 (PNJ)

Sunil Kumar Jain v. Ram Piari And Anr.

2000-03-20

M.L.SINGHAL

body2000
Judgment M.L.Singhal, J. 1. Vide order dated 16.1.1997 Civil Judge (Jr. Division), Patiala granted temporary injunction to plaintiff-Sunil Kumar Jain restraining defendants-Ram Piari and Rajinder Kumar from interferirig with His possession over the shop in dispute till the disposal of the suit subject to furnishing the security bond in the sum of Rs.2-1/2 lacs within a period of 10 days. 2. Plaintiff went in appeal against the imposition of conditions while granting injunction to him by the Civil Judge (Jr. Division), Patiala. 3. Additional District Judge, Patiala dismissed appeal vide order dated 8.12.1997, Sunil Kumar Jain has come up in revision to this Court against the said order of the said Courts and has prayed that the conditions imposed while granting injunction be deleted. 4. Facts: Sunil Kumar Jain instituted suit for permanent injunction against Ram Piari and Rajinder Kumar-defendants restraining the latter from interfering with his possession of the shop bearing No.977/4, situated at Top Khana Road, Patiala. It was alleged in the plaint that this shop was owned by one Chambi Devi. She had one son named Gian Chand and one daughter named Amar Sundri. Plaintiff is son of Smt. Amar Sundri wife of Madan Lal and Smt. Ram Piari is the widow of Gian Chand and Rajinder Kumar is the son of Gian Chand. It was further alleged that he is in possession of the shop as tenant under Smt. Ram Piari at rental of Rs.400/- per month running business under the name and style of M/s New Jain Jeweller, Patiala. On 18.10.1994 rent note was executed by him in favour of Smt. Ram Piari, which was signed by him as well as Smt. Ram Piari. He has been regularly paying rent to Smt. Ram Piari. No receipt was obtained from Smt. Ram Piari as she is his maternal aunt. Defendants want to forcibly dispossess him from the shop. Alongwith plaint, he made an application under Order 39 Rules 1 and 2 read with Section 151 CPC for the grant of ad-interim injunction. 5. Defendants put in written statement. They put in reply to this application as well. Smt. Chambi Devi died leaving behind the defendants as her only heirs. She had only one son named Gian Chand. It was denied that the plaintiff is tenant under Smt. Ram Piari qua this shop. 5. Defendants put in written statement. They put in reply to this application as well. Smt. Chambi Devi died leaving behind the defendants as her only heirs. She had only one son named Gian Chand. It was denied that the plaintiff is tenant under Smt. Ram Piari qua this shop. It was denied that any rent note was executed by Smt. Ram Piari in favour of the plaintiff. Defendant No.2 (Rajinder Kumar) was running business in this shop under the name and style of M/s Jain Jeweller. Plaintiff was working as Manager in the said firm. Rajinder Kumar started his business in this shop in 1977 after obtaining licence from the Department of Central Excise. Rajinder Kumar is Textile Engineer. He joined a big Textile Unit in Ropar leaving behind the plaintiff as care-taker of the shop being Manger of the firm. On 12.10.1996, when Rajinder Kumar visited the shop, he found some jewellery items worth Rs.85,000/-, missing from the stock and when he asked the plaintiff for accounts, he told him that the said amount had been spent by him. It was further alleged that the plaintiff had changed the name of the firm to M/s New Jain Jeweller without the consent of the defendant. An application dated 25.10.1996 was presented before the SSP, Patiala for taking action against him. It was further urged that Rajinder Kumar had been visiting the shop being its owner and the plaintiff was not in exclusive possession of the shop. 6. In replication apart from denying the contents stated by the defendants in written statement, plaintiff pleaded that he started business under the name and style of M/s New Jeweller. Rent note was executed by him in favour of Smt. Ram Piari on 18.10.1994 at the instance of the defendants. 7. Civil Judge : (Jr. Division), Patiala on consideration of material placed before him came to the conclusion that the plaintiff was in possession of the shop but it was difficult to say whether he was in possession of the shop as Manager of the firm M/s Jain Jeweller owned by the defendants or he was in possession of the shop running business under the name and style of M/s New Jain Jeweller as proprietor. 8. Civil Judge (Jr. Division), Patiala allowed the application and granted temporary injunction but subject to fulfilling of the said conditions. 9. 8. Civil Judge (Jr. Division), Patiala allowed the application and granted temporary injunction but subject to fulfilling of the said conditions. 9. Appeal of Sunil Kumar Jain against the imposition of conditions was held to be incompetent and not maintainable by the Additional District Judge, Patiala and he felt that the remedy of the plaintiff was to file revision. This is how this revision. 10. Learned counsel for the petitioner submitted that the order passed by the Civil Judge (Jr. Division), Patiala was appealable as per Order 43 Rule 1 CPC. It was submitted that the Additional District Judge, should have disposed of the appeal on merits. He should not have disposed of the appeal on preliminary objection that the same was not maintainable and instead revision was maintainable. It was submitted that impugned order was passed by the Civil Judge (Jr. Division), Patiala under Order 39 Rules 1 and 2 CPC and not Under Section 151 CPC. Order passed under Order 39 Rules 1 and 2 CPC is appealable under Order 43 Rule 1(r) CPC. It was further submitted that the conditions imposed by the learned Sub Judge (Jr. Division), Patiala while granting injunction are quite onerous which the plaintiff cannot fulfil. It was submitted that the order of the trial Court was virtually denial of injunction to him and when he was in possession of the shop and running business in it injunction should have been given to him without any condition as he is proprietor of M/s New Jain Jeweller. 11. In Jeevajyothi Ashrama, Sorab v. B.P. Ramamanohara and others, 1997(1) Civil Court Cases 487 (Karnataka), it was held that where order is passed refusing to grant injunction but at the same time conditions are imposed on the other party not seeking injunction, revision by the party aggrieved by conditions is maintainable. 12. Any order passed under Order 39 Rules 1 and 2 CPC is clearly appealable under Order 43 Rule 1(r) CPC, Civil Judge (Jr. Division), Patiala gave injunction obviously in exercise of powers vesting in him under Order 39 Rules 1 and 2 CPC. He imposed conditions on him because the imposition of conditions is authorised by the provisions of Order 39 Rules 1 and 2 CPC. 13. In Jeevajyothi Ashrama, Sorab v. B.P. Ramamanohara and Ors. Division), Patiala gave injunction obviously in exercise of powers vesting in him under Order 39 Rules 1 and 2 CPC. He imposed conditions on him because the imposition of conditions is authorised by the provisions of Order 39 Rules 1 and 2 CPC. 13. In Jeevajyothi Ashrama, Sorab v. B.P. Ramamanohara and Ors. (supra), it was held that the Court has power to impose conditions while granting injunction under Order 39 Rules 1 and 2 and these provisions do not enable the Court to impose conditions while rejecting the prayer for injunction by dismissing the application filed under Rules 1 and 2 of Order 39 of CPC. The order refusing injunction to "A" at the same time imposing conditions on "B" was held to be revisable by the Karnataka High Court. 14. In the case in hand, however, order was passed under Order 39 Rules 1 and 2 read with Section 151 CPC granting injunction to the plaintiff, at the same time, on imposing conditions on him. This order is a composite order and as such cannot be taken away from the pale of Order 39 Rules 1 and 2 and as such is appealable. 15. So, Order passed by the learned Additional District Judge, Patiala is set aside and he is directed to re-hear the appeal and decide it on merit.