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2002 DIGILAW 219 (ALL)

Santosh Kumar Singh v. Ravindra Kumar Saxena

2002-02-01

B.K.RATHI

body2002
JUDGMNET B.K.Rathi 1. The suit was filed by the respondent against the appellants for permanent injunction. THE suit was decreed by the trial court and the appellants were restrained from holding any market/Nakhasa in disputed plot No. 652 or nearby plots on the days fixed, i.e., Tuesdays and Saturdays. It was also ordered that the appellants shall not interfere in holding of the market/Nakhasa by the respondent in plot No. 664 and should also not realise any money in the market/Nakhasa held in that plot. 2. Aggrieved by the judgment of the trial court, the appellants preferred appeal No. 7 of 2001, which has been dismissed by the judgment, dated 5.5.2001. Aggrieved by it, the present second appeal has been preferred. I have heard Sri Manoj Mishra, learned counsel for the appellants and Sri Ramendra Asthana, learned counsel for the respondent. 3. In this case, there are two plots in dispute, i.e., plot Nos. 664 and 652. The appellants have no concern with plot No. 652 and market/Nakhasa is held in that plot by the respondent-plaintiff on every Tuesday and Saturday. The appellants have been permanently restrained from holding market in the vicinity of this plot on Tuesday and Saturday. Regarding plot No. 664, there is agreement between the parties for holding the joint market on that plot (which is Annexure-4 to the affidavit filed by the appellants). 4. The following substantial questions of law arise for decision in this appeal : (1) Whether the courts below have erred in issuing injunction restraining the appellants permanently from holding market on Saturdays and Tuesdays in the vicinity of plot No. 652? (2) Whether the courts below have misconstrued the agreement between the parties and wrongly held that it has been revoked and issued injunction regarding plot No. 664? On the request of the learned counsel for the parties, I have heard this appeal finally. 5. As regard question No. 1, which is in respect of plot No. 652, the trial court has issued injunction restraining the appellants from holding market on that plot and also in the vicinity for the reason that the respondent has taken permission from the Zila Parishad to hold the market, whereas there is no permission in favour of the appellants. It is argued that there are rules regarding the permission to hold the market. It is argued that there are rules regarding the permission to hold the market. However, on behalf of the appellants, it is contended that the appellants may also have permission in accordance to the rules ; that due to the permanent injunction of the civil court restraining them from holding the market, the Zila Parishad cannot grant permission as it would amount to breach of the orders of civil court ; that by the injunction, the fundamental right of trade of the appellants has been taken away. 6. In view of the above, the decree for permanent injunction regarding plot No. 652 is modified to the extent that the appellants will not hold any market on any day in the vicinity of plot No. 652, till they obtain a valid permission from the Zila Parishad to hold the market. Now coming to question No. 2, admittedly, the respondent is the owner of plot No. 664 and is entitled to hold the market. However, there is an agreement between the parties, dated 3.7.1975, which is Annexure-4 to the affidavit. By this agreement, they agreed to hold the market jointly on plot No. 664. It was, further, agreed upon in Clause 2 of the agreement that in the market/Nakhasa both the parties will have ownership of half of the share ; that they will also take half of the profits. The respondent alleges that this agreement has been revoked by notice. However, the court below had held that no notice has been served. In any case, the agreement is bilateral and cannot be revoked by notice and the parties are bound by this agreement. According to the agreement, the parties will hold market/Nakhasa jointly and it is not that the appellants are only entitled to the half of the profits. Had it been so, the appellants could have claimed the profits. But the agreement is clear and it has been agreed upon that the market will be joint. Therefore, the appellants cannot be restrained from holding market with the respondent in plot No. 664. In the result, the decree regarding plot No. 664 passed by the court below is fit to be set aside. 7. Accordingly the appeal is allowed in part and the injunction order regarding plot No. 664 is set aside. Therefore, the appellants cannot be restrained from holding market with the respondent in plot No. 664. In the result, the decree regarding plot No. 664 passed by the court below is fit to be set aside. 7. Accordingly the appeal is allowed in part and the injunction order regarding plot No. 664 is set aside. As regards the order of the court below regarding the plot No. 652, the same is modified, as mentioned in the body of the judgment. 8. In the circumstances, the parties are directed to pay their own costs.