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2001 DIGILAW 367 (HP)

Promod soni v. State of H. P.

2001-12-05

KULDIP CHAND SOOD

body2001
JUDGMENT Kuldip Chand Sood, J. 1. This petition UnderSection 115 of the Code of Civil Procedure is directed against the orders of learned Additional District Judge, Solan, in Civil Misc. Appeal No. 27-NL/14 of 1999, dated April 19, 2000. 2. It appears, Lotus Computers", a partnership firm, was allotted Shed No. 12 in the Industrial Area at Baddi in the District of Solan by the Respondent-State of Himachal Pradesh in the Department of Industries through Respondent No. 3. The allotment was made by a letter dated April 3, 1995 and formal agreement deed (Exhibit D6) was executed on May 16,1995. At the relevant time, Mr. Anil Raheja, Y.P. Raheja and Mrs. Preeti Raheja were the partners of the Lotus Computers. 3. This firm, according to the Plaintiffs, was dissolved, by a Dissolution Deed, on March 28,1998. Underthe deed of dissolution, Y.P, Raheja and Mrs. Preeti Raheja left the partnership firm and Anil Raheja alone, it was agreed, was to carry on the business. Anil Raheja on April 6, 1998 opened a new partnership firm in the name and style of M/s. Image Maker (Petitioner No. 2) with Parmod Soni, Plaintiff No. 2 (Petitioner No. 1) as partner to do the business of readymade garments in the shed which was allotted to M/s. Lotus Computers. Lotus Cpmputers had defaulted in the payment of rent as per the terms and conditions of the agreement underwhich this shed was allotted to it. The allotment, after show cause notice to. the Respondent, was cancelled on March 20,1996 and the possession of the shed was taken over by the Respondent-State of Himachal Pradesh on March 26, 1997. 4. Thereafter, Respondent Parmod Soni, according to the Respondents, unauthorisedly occupied this shed. Proceedings underthe H.P. Public Premises (Eviction and Rent Recovery) Act, 1971, ("Eviction Act for short"), were initiated against Parmod Soni, Respondent No. 1. Respondent Parmod Soni took a plea that he was not an encroacher and was partner of. Image Maker, Respondent No. 2, with Anil Raheja, one of the partner of dissolved firm 'Lotus Computers'. Collector Nalagarh vide his orders dated June 30, 2000 found 'that possession of the shed in question was resumed by the State Government in terms of the agreement in the year 1996 much before the coming into existence of the firm "Image Makers". Image Maker, Respondent No. 2, with Anil Raheja, one of the partner of dissolved firm 'Lotus Computers'. Collector Nalagarh vide his orders dated June 30, 2000 found 'that possession of the shed in question was resumed by the State Government in terms of the agreement in the year 1996 much before the coming into existence of the firm "Image Makers". He also found that Respondent Parmod Soni was not a partner of the original allottee, Lotus Computers and his possession was that of a tresspasser. The Collector concluded that the lease was not created or renewed in favour of M/s. Image Makers by the Government and, therefore, occupation of Shed No. 12 by the Petitioner Parmod Soni was unauthorized, illegal. He accordingly, directed the Petitioner Parmod Soni to hand over the vacant possession of Shed No. 12, Industrial Area, Baddi, within a period of one month of this order failing which he was directed to be forcibly evicted. 5. Plaintiff-Petitioners filed a suit for declaration that the Plaintiff is in legal possession of the industrial shed in question and notice or any other order pertaining to the cancellation of the allotment of the shed is illegal, null and void and Defendants Respondents have no right to dispossess the Plaintiff-Petitioner underthe notices issued to them. Plaintiff-Petitioners also sought a restraint on the Defendants from dispossessing them from the industrial shed in question. 6. It may be noticed at this stage that the suit was filed on August 4,1999 before the passing of the orders of eviction of the Petitioner Parmod Soni by the Collector, Nalagarh underthe "Eviction Act". 7. According to the Plaintiffs, Defendants were threatening to dispossess the Plaintiffs from the shed without any reason which act is illegal, arbitrary and without jurisdiction as the Plaintiffs were not served with any show cause notice nor were they heard before issuance of the notices, Plaintiffs though admit that a letter was received on January 27, 1997 from Defendant-Respondent No. 3 threatening to take action against the Plaintiff ; Parmod Soni underthe "Eviction Act". 8. Plaintiffs along with the suit filed an application UnderOrder 39 Rules 1 and 2, of the Code of Civil Procedure seeking to restrain, in interim, the Defendants from dispossessing the Plaintiff-applicants from the shed in question. 9. The application was resisted. 8. Plaintiffs along with the suit filed an application UnderOrder 39 Rules 1 and 2, of the Code of Civil Procedure seeking to restrain, in interim, the Defendants from dispossessing the Plaintiff-applicants from the shed in question. 9. The application was resisted. The stand of the Defendants-Respondent was that Plaintiff Parmod Soni and 'Image Makers have no locus standi to file the suit. There was no privity of contract between the Defendants and the Plaintiffs. The Plaintiff firm 'Image Makers' came into being two years after cancellation of allotment of the shed in question in favour of Lotus Computers and they have no right, title or interest so far the shed in question was concerned. It is the further case of the Defendants' that the shed was allotted to . Lotus Computers in terms of the conditions in the lease deed. As the Lotus Computers failed to commence its industrial activities and defaulted in the payment of rent, therefore, after issuance of show cause notice, the lease was cancelled on March 20,1996. The Plaintiff who was in unauthorized possession of the shed, was requested to vacate the shed and, accordingly, the shed was vacated and the possession was resumed by the Department of Industries on March 6, 1997. In May, 1999 it was found that Plaintiff Parmod Soni had broken the departmental lock and trespassed into the shed. A First Information Report was lodged with Police Station, Barotiwala and proceedings underthe "Eviction Act" were initiated against the Plaintiffs. 10. Learned trial Judge, after considering the rival contentions of the parties, dismissed the application of the Plaintiffs Petitioners. Learned trial Judge found that Plaintiffs neither had prima facie case nor balance of convenience in their favour. The learned trial Judge took a view that the shed in question was allotted to "M/s. Lotus Computers" which firm was dissolved on March 29, 1998 and consequently, the firm Lotus Computers ceased to exist on March 28, 1998. The new partnership firm created in the name and style of "M/s. Image Makers were neither connected with nor privy to the lease in favour of 'Lotus Computers' and thus had ho locus standi to file the suit. The new partnership firm created in the name and style of "M/s. Image Makers were neither connected with nor privy to the lease in favour of 'Lotus Computers' and thus had ho locus standi to file the suit. Learned trial Judge was also of the view that, prima facie, the status of the applicant was that of a tresspasser and tresspasser is not entitled to any injunction against the true owner and, accordingly proceeded to dismiss the application. 11. Aggrieved, the Plaintiffs carried an appeal before the learned District Judge which too was dismissed by the impugned orders of the learned Additional District Judge. Learned Additional District judge affirmed the findings and the reasoning of the learned trial Judge and found that prima facie the allotment was cancelled by the General Manager, District Industries Center on March 23,1996 and possession was taken over by the Department of Industries (Ann. TI) and therefore, Plaintiffs did not have either prima facie case or balance of convenience. 12. I have heard Mr. Bhupinder Gupta, learned Senior Advocate, assisted by Ms. Nalini Kalra, Advocate, for the Petitioners and Mr. J.S. Guleria, Law Officer for the Respondents and gone through the records. 13. Learned Senior Counsel for the Petitioners urged that the Plaintiffs-Petitioners are in settled possession of the shed in question and, therefore, they could not have been evicted from this shed. His further contention was that merely because proceedings underthe Eviction Act had been initiated against the Plaintiffs, would not bar remedy of the Plaintiffs in the Civil Court. 14. It is admitted position that the shed in question was allotted to "Lotus Computers" which was a partnership firm. It is also not in dispute that this firm was dissolved on March 28, 1998. Thus, firm "Lotus Computers" ceased to exist on that date. From the record it appears that allotment of the shed in question was cancelled by the Defendants- Respondents on March 23, 1995 and Lotus Computers were accordingly informed by a reasoned order of that date. The General Manager, District Industries Center, Solan, recorded that the shed in question was allotted to the Lotus Computers for manufacture of computers and computer items.This firm, in accordance with the terms and conditions of the allotment, was to start manufacturing activities and pay the monthly rent by 7th day of succeeding month. The General Manager, District Industries Center, Solan, recorded that the shed in question was allotted to the Lotus Computers for manufacture of computers and computer items.This firm, in accordance with the terms and conditions of the allotment, was to start manufacturing activities and pay the monthly rent by 7th day of succeeding month. The firm, however, failed to start the manufacturing activity in the allotted shed and defaulted in the payment of monthly rent. The allottee M/s. "Lotus Computers" was issued show cause notice but failed to give any satisfactory reply justifying for not starting; the manufacturing activity and the on-payment of rent. In the circumstances, , the possession of the shed which was lying vacant was resumed, without payment of compensation on March 16,1997, through the Economic Inspector, S.W.C.A., Baddi in the presence of witnesses Arun Rawat of Shed No. 14 and Ram Niwas Kansal of Shed No. 3 of Industrial Area, Baddi. 15. Perusal of Clause 3 of the agreement (Ext. D-6), whereby shed in question was allotted to M/s. Lotus Computers shows that lessees were to use the premises only for the purpose for which it was leased out, namely, for the manufacture of computers and it could not be used for any other purpose save and except with the prior approval of the General Manager, District Industries Center, Solan. It is the own case of the Plaintiffs that after the dissolution of the firm, Plaintiff Parmod Soni in collaboration with Anil Raheja, started another business in the name and style of "Image Makers" for manufacture of ready made garments. Apparently, that was not a business for which the shed was allotted to "Lotus Computers". 16. Clause 6 of the agreement stipulated that allottee firm shall not sub-let or part with the possession of the premises. Clause 14(b) provided that if the lessee committed any breach of the covenants of the lease agreement,it shall be lawful for the lesser to terminate the lease and forfeit the security of the lessee and the General Manager, District Industries Center, Solan was authorized to enter on the premises. 17. Clause 14(b) provided that if the lessee committed any breach of the covenants of the lease agreement,it shall be lawful for the lesser to terminate the lease and forfeit the security of the lessee and the General Manager, District Industries Center, Solan was authorized to enter on the premises. 17. Thus, the conclusion reached by the trial Court as affirmed by the learned First Appellate Court that Plaintiffs do not have prima facie case or balance of convenience in their favor, cannot be said to be visited with any irregularity or illegality particularly when from the documents on record, it is shown that the lease deed in favor of the lessee Lotus Computers was cancelled in March, 1996 when Plaintiff firm was not in existence and possession was taken over by the Department of Industries two years prior to the coming into existence of the Plaintiffs firm. I hardly need to emphasized that injunction cannot be issued against the true owner unless the party seeking protection of its possession is in settled possession. A person who is a tress passer or is in unlawful possession is not entitled to protect his possession against the true owner. Learned Senior Counsel for the Petitioners has not been able to show how the Plaintiffs are either in settled or lawful possession of the shed in question. Prima facie, Plaintiffs have no right, title or interest to possess the shed in question and therefore, it cannot claim protection of its possession (See: R.V. Bhupal Prasad v. State of A.P. and Ors. (1995) 5 SCC 698), more so when proceedings underthe "Eviction Act" have been decided against the Plaintiff Parmod Soni. 18. The ambit and scope of the powers of the High Court, in exercise of its jurisdiction UnderSection 115 of the Code of Civil Procedure is limited. The High Court can interfere underits revisional jurisdiction only if the Courts below exercised its jurisdiction with material irregularity or if the High Court is satisfied, on the basis of the material placed on record, that the impugned order passed by the Court below will cause grave injustice to a party. In the present case, it cannot be said that the Courts below have exercised their jurisdiction either with material irregularity or against the settled position of law. In the present case, it cannot be said that the Courts below have exercised their jurisdiction either with material irregularity or against the settled position of law. It can also not be said that the dismissal of the application of the Petitioners has resulted in failure of justice or has caused irreparable injury to the Petitioners which cannot be compensated by costs. 19. There is no merit in the revision petition and the same is dismissed. 20. Any observations made herein above shall not be construed to be any reflection on the merits of the case which shall be decided by the trial Court at its own merits. Parties shall appear before the trial Court on December, 2001. There shall be no order as to costs.