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2007 DIGILAW 1195 (PNJ)

Mittar Sain v. Municipal Committee, Sadhaura

2007-05-23

VINOD K.SHARMA

body2007
JUDGMENT Vinod K. Sharma, J. (Oral) - This order will dispose of Civil Revision Nos. 3024 to 3026 of 1994, which arise from the same judgment. For the sake of convenience, facts are being taken from Civil Revision No. 3024 of 1994. 2. This revision petition has been filed against the orders passed by the learned courts below vide which an application moved by the petitioner- plaintiff under Order 39 Rules 1 and 2 read with Section 151 CPC, has been dismissed. 3. The petitioner-plaintiff instituted a suit against the Municipal Committee, Sadhaura, seeking decree for permanent injunction restraining the defendant from interfering in actual physical possession over the shop/khokha, situated at main Bazar Road, within municipal limits of Sadhaura, tehsil Jagadhri and further restraining the defendant from dispossessing the petitioner-plaintiff from the khokha/shop installed in the said property by demolishing the same forcibly or in any other manner whatsoever except in due course of law. 4. It was claimed by the petitioner-plaintiff that he is in possession of the suit property since 1978, which has been taken on rent by the petitioner- plaintiff from the defendant at a monthly rent of Rs. 25/- and he installed a khokha/shop by spending a sum of Rs. 8,000/-, for the construction on it, in which, he has been doing the business of general merchant. It was further claimed that the rent was enhanced from time to time, which is being paid regularly by the petitioner-plaintiff. 5. The suit was contested by the defendant-Municipal Committee wherein it was pleaded that the shop was with the petitioner-plaintiff merely as a licencee on payment of the Tehbazari. The stand was also taken that the licence of the petitioner-plaintiff was revoked and, therefore, there was no legal right with the petitioner-plaintiff to seek injunction. For this purpose, reliance was placed on the judgments of Delhi High Court in the case of Sardar Singh v. New Delhi Municipal Committee, 1966 PLR 169 and also on judgment in case of Pritam Kaur v. Nagar Palika, 1985(2) PLR 99. 6. Notice of this revision was given and dispossession of the petitioner- plaintiff was stayed. However, in spite of the notice, the defendant- respondent failed to put in appearance. Consequently, the revision was admitted and the stay was ordered to be continued. Thus the petitioner is in possession of the property in dispute. 7. 6. Notice of this revision was given and dispossession of the petitioner- plaintiff was stayed. However, in spite of the notice, the defendant- respondent failed to put in appearance. Consequently, the revision was admitted and the stay was ordered to be continued. Thus the petitioner is in possession of the property in dispute. 7. Learned counsel for the petitioner submitted that the case set up by the petitioner was that a shop has been constructed on the property, which is of permanent nature. The factum of money having been spent for construction of shop was not disputed and merely a plea was taken that the petitioner kept the khokha/shop on Tah-Bazari, and therefore to be deemed to as a licencee. 8. Learned counsel for the petitioner contends that this finding of the learned courts below prima facie cannot be sustained as the documentary evidence has been produced on record to show that the petitioner was paying rent for use of khokha/shop and once he was in possession of the property, he was entitled to seek injunction against the forcible dispossession. Learned counsel for the petitioner placed reliance on the judgment of this Court in the case of Hukum Singh (deceased) v. Sh. Tara Singh and others, 1992 PLJ 268 to contend that once the possession of the petitioner was proved he was entitled to injunction as no person in possession could be dispossessed except in due course of law. 9. In the present case, as it was yet to be decided whether the nature of property is temporary or permanent and also whether the petitioners were licencee or the tenant over the property in dispute, which could be determined only after the parties were allowed to lead evidence, it was not correct on the part of the learned Courts below to have rejected the application by treating the petitioner to be licencee against the documentary proof of receipt of rent. 10. Consequently, these revision petitions are allowed, the impugned orders are set aside and application moved under Order 39 Rules 1 and 2 CPC is allowed. 11. 10. Consequently, these revision petitions are allowed, the impugned orders are set aside and application moved under Order 39 Rules 1 and 2 CPC is allowed. 11. It is made clear that nothing observed above, be deemed to be an expression on the merits of the case and keeping in view the fact that the suit filed by the plaintiffs is pending since 27.1.1993, the trial Court is directed to expedite the hearing of the case and dispose of the same, preferably within six months, from receipt of certified copy of this order. Petitions allowed.