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2000 DIGILAW 374 (KER)

ittoop v. Venkittan Embrandiri

2000-07-20

D.SREEDEVI

body2000
Judgment :- D. Sreedevi, J. This revision petition is directed against the order dated 30.5.2000 in I. A. No. 1195 of 2000 in CM. A. No. 27/2000 of the Principal Subordinate Judges Court, Irinjalakuda, which was filed against the order in I.A. No. 3535/99 in O.S. No. 1235/99 of the Principal Munsiff's Court, Inrinjalakuda. Defendant is the revision petitioner. 2. The respondent/ plaintiff has filed O.S.No.1235/99 before the Principal Munsiffs Court, Irinjalakuda for a decree of permanent injunction against the defendant who is the petitioner herein. Along with the plaint the respondent/ plaintiff filed I.A. No. 3535/99 under 0.39 R.1 CPC for an order restraining the petitioner/ defendant from trespassing upon the A schedule property and from removing the movables kept therein. The respondent herein alleged that he has purchased A schedule property and the tools and machineries including the electric connections under a sale deed dated 21.4.1999 executed by the defendant. Therefore he gave licence to the petitioner/ defendant to conduct the workshop with effect from 21 A.I 999. An agreement was executed on 1.5.1999. The period of licence expired on 20.7.1999. As per the agreement the respondent/ plaintiff has been paying the building tax. According to the respondent/ plaintiff he had given permission to the petitioner defendant to conduct the workshop till 20.7.1999. Now the petitioner/ defendant has started saying that he was going to continue to conduct the workshop in the plaint schedule property. Therefore, he has filed a petition for an order of injunction. 3. The revision petitioner/ defendant filed a counter admitting the sale deed and contended that the possession of the plaint schedule property was not transferred to the respondent/ plaintiff as per the sale deed. He would contend that the respondent/ plaintiff is a money lender and since 1990 the petitioner/ defendant used to borrow money from him on the agreement to pay interest every month. It is admitted by the petitioner/ defendant that he had borrowed Rs. 70,000/- from the respondent/ plaintiff agreeing to pay Rs.35,000/- on 31.1.1998 and Rs.35,000/- on 28.2.1998. Since he did not pay the amount, the respondent/ plaintiff demanded for the same. Then the petitioner/ defendant assured him that he will pay off the amount before 20.7.1999. Then the plaintiff wanted to execute a sale deed by way of security for the amount and accordingly a sale deed happened to be executed by him on 21.4.1999. Since he did not pay the amount, the respondent/ plaintiff demanded for the same. Then the petitioner/ defendant assured him that he will pay off the amount before 20.7.1999. Then the plaintiff wanted to execute a sale deed by way of security for the amount and accordingly a sale deed happened to be executed by him on 21.4.1999. He has also denied the allegation that he agreed to pay the licence fee. Therefore, he prays for the dismissal of the injunction petition. 4. The trial court, after hearing both parties, granted an interim order of injunction restraining the defendant from trespassing into the plaint schedule property or from taking away the machineries and tools including electric connection from the plaint schedule property. Aggrieved by the said order, the defendant has filed C.M.A. No. 27/2000 before the Principal Subordinate Judge's Court, Inrinjalakuda. During the pendency of the said CMA, the defendant filed I.A. No. 1195/2000. On the said application the court suspended the operation of the injunction order passed by the Principal Munsiff's Court on condition that the defendant deposits half of the licence fee arrear as per Ext. A4 within one month before the Appellate Court. Aggrieved by the said decision of the learned subordinate judge, the defendant has filed this revision petition. 5. Learned counsel for the revision petitioner submitted that the respondent is only a money lender and he is the owner and is in possession of 41/2 cents of property with a shed and a 10 H.P. electric motor comprised in the same. He has also stated that he was conducting a mechanical workshop and laith works in the said premises. He borrowed Rs. 70,000/- from the respondent promising to repay the same within a span of one year. He paid Rs. 35,000/- with interest within the stipulated time. As he could not repay the balance amount, he was insisted by the respondent to execute a deed of assignment in favour of the respondent. Accordingly, he has executed the deed. After the execution of the deed of assignment the respondent further insisted that the petitioner should use the workshop only as a licensee. Therefore, it is submitted for the petitioner that the order of the learned Subordinate Judge making him to deposit half of the licence fee arrears is not legal as there was no agreement to pay the licence fee after 20.7.1999. 6. Therefore, it is submitted for the petitioner that the order of the learned Subordinate Judge making him to deposit half of the licence fee arrears is not legal as there was no agreement to pay the licence fee after 20.7.1999. 6. Learned counsel for the respondent submitted that the order of the learned subordinate judge is only a discretionary order. According to him, the revision petition is not maintainable under S.115 C.P.C. S.115 CPC provides as follows: "The High Court may call for the record of any case which has been decided by any court subordinate to such High Court in which no appeal lies thereto". Proviso to S.115 provides as follows: "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) (b) the order, if allowed to stand, would occasion a failure to justice or cause irreparable injury to the party against whom it was made". 7. Here in this case, the revision petitioner was holding the tools and machinery and the plaint schedule property on the basis of Ext. A4 agreement whereby he was allowed as the licensee, to use the machinery for the purpose of his workshop. The licence was granted only till 20.7.1999 for which licence fee of Rs. 10,000/- was fixed. Since the agreement is admitted, I can only find that the revision petitioner was a licensee so far as the machinery and property are concerned. Being a licensee, he is bound to surrender the machinery and the property on the expiry of term of licence. But, he continued. The trial court granted an interim injunction restraining the revision petitioner from trespassing into the plaint schedule property. In appeal, the Appellate Court, in order to safeguard the interest of the respondent/ plaintiff directed the petitioner/ defendant to pay half of the licence fee arrears. For 80 days the licence fee was R.10,000/- For each day, the respondent/ plaintiff was entitled to get Rs. 125/-. After the expiry of the period of licence, the revision petitioner is not entitled to continue in possession of the property. In such circumstances, the respondent can file a suit for mandatory injunction and accordingly he has filed the suit. 8. 125/-. After the expiry of the period of licence, the revision petitioner is not entitled to continue in possession of the property. In such circumstances, the respondent can file a suit for mandatory injunction and accordingly he has filed the suit. 8. This court in the decision reported in Sreedharan Eradi v. Sreedharan (1988 (2) KLT 995) held that once licence is revoked, he has no permission to use the premises and when once that permission is withdrawn in law, he is bound to surrender the property. In effect, the plaintiff is seeking a remedy through the court by filing a suit for mandatory injunction. Therefore, the suit filed against him is maintainable. The defendant is continuing to conduct the workshop without paying any pie towards the licence fee or towards rent or damages for use and occupation. It is true that no rent or licence fee has been fixed after the expiry of the licence period. As the defendant was a looser, the court found it fit to grant some amount for use and occupation to safeguard the interest of the plaintiff. The learned subordinate judge has not disposed of the CMA. He has simply exercised his discretion in directing the defendant to pay some amount to the plaintiff. 9. This court in the decision reported in Mytheen Kunju v. Azeez Kunju (1992 (1) KLT 713) held as follows: "The High Court's revisional powers under S.115 of the Code can be exercised only if the order of the subordinate court sought to be revised constitutes "any case which has been decided", (ii) The court makes numerous orders during the pendency of a suit or proceeding and every such order is not "case which has been decided" within the meaning of sub-s.(1) of S.115 of the Code. Some of the orders decide or adjudicate upon rights or obligations of litigants. The court also makes orders which do not determine any right or obligation. It is only those orders which decide or adjudicate upon rights or obligations of either party that come within the meaning of "case which has been decided", (iii) The proviso to sub-s.(1) of S.115 of the Code operates to limit or restrict the general power of revision created by sub-s.(1) of S.115 of the Code." 10. It is only those orders which decide or adjudicate upon rights or obligations of either party that come within the meaning of "case which has been decided", (iii) The proviso to sub-s.(1) of S.115 of the Code operates to limit or restrict the general power of revision created by sub-s.(1) of S.115 of the Code." 10. Since the order under challenge is an order passed by the court exercising its discretion to safeguard the interest of the respondent, during the pendency of the CM A without adjudicating the rights of parties, I cannot find that the said order is an order which comes within the meaning "case which has been decided". Therefore, this revision petition is not maintainable. At the time of hearing, learned counsel for the petitioner submitted that in case the court finds that the impugned order is not liable to be set aside, he may be granted 45 days time to comply with the order of the Appellate Court. I do not find any reason to interfere with the order of the Subordinate Judge. In the result, this revision petition is dismissed. But, the revision petitioner is allowed 45 days time, from today to remit the amount ordered by the learned Subordinate Judge.