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2003 DIGILAW 548 (MP)

ASLAM KHAN v. SULTAN AJIM

2003-04-16

ARUN MISHRA

body2003
Judgment ( 1. ) PETITIONER in this writ petition is assailing the interlocutory order passed by the Trial Court, affirmed by the Appellate Court refusing to grant injunction against execution of the decree passed in Civil Suit No. 346-A/99 on 3-5-2000 by 3rd Civil Judge, Class-II, Bhopal. ( 2. ) DR. Sultan Ajim, respondent No. 1 Filed a suit against respondent no. 2 - Rafat Saeed, which was registered as Civil Suit No. 346-A/99 for ejectment from the tenanted premises. It was alleged that the defendant Rafat saeed was occupying shop in question at the rate of Rs. 945/- per month. Rent had not been paid. A notice was served on 7-4-99, in spite of that rent was not paid. Rent was due from 1-10-1998 to 30-4-99. Total rent due was Rs. 6615/-and without permission of the plaintiff the defendant had kept sub-tenant namely Aslam Khan who was running STD PCO. The defendant No. 2 - Rafat saeed remained ex parte. The Trial Court passed judgment and decree (P-2)on 3-5-2002 directing ejectment. It is conceded at bar that the respondent no. 2 has filed proceedings against ex parte decree which travelled upto this court in revision and revision was dismissed by this Court. Thereafter present suit has been filed by tenant as well as sub-tenant - Rafat Saeed and Aslam khan to set aside the judgment and decree passed in Civil Suit No. 346-A/99. It has been contended by the plaintiff Aslam Khan that it was with the consent of the landlord that original tenant Rafat Saeed respondent No. 2 had inducted aslara Khan as tenant and Rs. 50,000/- was paid as per P-l, during the pendency of the said suit before the 6th Civil Judge, Class-II, Bhopal. Plaintiff prayed for interim prohibitory injunction from executing the decree and taking possession of the disputed shop. Trial Court passed an order (P-6) on 26-12-2002, and had dismissed the application filed by the petitioner and the respondent No. 2. It has been prima facie found that it can not be said that the decree was obtained fraudulently. Relying on the decision of this Court in Kishan chand Vs. Smt. Manisha Lalwani, 1999 (II) MPWN 5 , it has been held that sub-tenant is not necessary party. No prima facie case has been found in favour of petitioner. Rent was due from 1-10-1998. Decree has been properly passed. Relying on the decision of this Court in Kishan chand Vs. Smt. Manisha Lalwani, 1999 (II) MPWN 5 , it has been held that sub-tenant is not necessary party. No prima facie case has been found in favour of petitioner. Rent was due from 1-10-1998. Decree has been properly passed. An appeal was preferred before the learned 4th Additional District Judge, bhopal, same has been dismissed as per order (P-7), dated 11-3-2003. The learned Appellate Court has considered the matter in extensive details and has held that an order passed by the Trial Court is proper and on elaborate discussion of the matter has dismissed the appeal. ( 3. ) LEARNED Counsel for the petitioner Shri P. Rusia has submitted that as the petitioner was not arrayed as the parties to the previous suit, it can not be said that the decree is binding on him. There is serious and triable issue on the strength of document (P-l) raised by the petitioner. Rs. 50,000/- were paid under document (P-l ). Decree has been obtained fraudulently, as such execution of the same ought to have been restrained by interim injunction during the pendency of the suit. ( 4. ) DECREE has been passed on twin grounds of sub-tenancy and arrears of rent, in which respondent No. 2 was a party. Respondent No. 2 also filed the proceedings for setting aside the ex parte decree, which has not been accepted. Thereafter the suit has been filed by the two plaintiffs; tenant and sub- tenant joining hands together, i. e. , petitioner and respondent No. 2. ( 5. ) IT is settled position that execution of decree does not cause irreparable injury. Prima facie the decree (P-2) passed is binding over both the plaintiffs. Sub-tenant may be a proper party, but, is not necessary party in a suit for ejectment. Prima facie, both the Courts-below have come to the conclusion that the decree obtained can not be said to be fraudulently obtained. ( 6. ) SCOPE of interference in the writ petition in interlocutory order is limited. Revision has been barred. Hence, present writ petition has been preferred. I find that the orders passed by the Courts-below are just and proper. Courts below have appreciated the three pillars relevant for grant of an injunction. Prima facie case, balance of convenience and irreparable injury the discussion made is proper. Revision has been barred. Hence, present writ petition has been preferred. I find that the orders passed by the Courts-below are just and proper. Courts below have appreciated the three pillars relevant for grant of an injunction. Prima facie case, balance of convenience and irreparable injury the discussion made is proper. There is no jurisdictional error in the impugned orders. ( 7. ) PLAINT of the previous case was placed for perusal by learned counsel appearing for the petitioner which indicate that the notice for ejectment was served in the month of April, 1999. The document (P-l) is said to be executed sometime in March, 1999, veracity of which has to be gone into in the suit. It has been denied by the defendant in the reply that he has never consented for sub-tenancy. Whatever the rights petitioner is claiming is through Rafat Saeed. Rafat Saeed was party to the suit and has filed instant suit with petitioner which negates element of fraudulent decree. ( 8. ) LEARNED Counsel for the petitioner has relied on decision of the supreme Court in Dinesh Mathur Vs. O. P. Arora, 1997 (II) MPWN 52, in which permanent lease was granted in the year 1937 and the suit was filed in the year 1991. Considering the settled possession, an injunction was granted. Question of grant of an injunction against the decree was not involved. Here execution of the document (P-l) itself is in doubt. ( 9. ) LEARNED Counsel has also relied on Umesh Kumar Puri Vs. State of M. P. , 1997 (1) MPWN 176, wherein it has been laid down that bar of suit can not be considered at the stage of grant of an injunction, revision was partly allowed. Decision is of no utility to the petitioner in the facts of this case. Learned Counsel has also relied on Subhan Shah Vs. Barkat Bai, 1999 (I) MPWN 199 , to contend that if prima facie case is established, plaintiff is entitled to temporary injunction. There is no dispute about above proposition. Question is whether prima facie case is established. Finding of fact has been recorded. There is no prima facie case found by the two Courts-below and no irreparable injury is to be caused. Balance of convenience requires execution of decree is not stayed and execution of it does not constitute irreparable injury. ( 10. Question is whether prima facie case is established. Finding of fact has been recorded. There is no prima facie case found by the two Courts-below and no irreparable injury is to be caused. Balance of convenience requires execution of decree is not stayed and execution of it does not constitute irreparable injury. ( 10. ) COUNSEL has also relied upon the decision of this Court in nemichand Jain Vs. Ram Baboo, 1995 (I) MPWN 47 , to contend that subtenant is proper party in such case, question of passing a decree against the tenant and effect of non-impleadment of sub-tenant was not considered, absence of a proper party can not vitiate validly obtained decree. This Court in Kishan Chand Vs. Smt. Manisha Lalwani, 1999 (II) MPWN 5 , has held that in a suit or eviction sub-tenant is not necessary party. ( 11. ) COUNSEL has further relied on Shobhna Sardesai Vs. Radhey shyam, 1999 (II) MPWN 11 , to contend that where there is serious question to be tried, status quo in respect of disputed property should be ordered to avoid further litigation and future complication. Another decision relied upon is Raghunath Tambe Vs. M. P. Electricity Board, Jabalpur and others, 1997 (2) MPLJ 423 , it was held that person has right to file an application under Order 9 Rule 13, CPC. That is not the question involved here. ( 12. ) RESULTANTLY, I find no merit in this writ petition. Same is dismissed. Writ Petition dismissed.