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2008 DIGILAW 622 (GAU)

Madhu Jelwa v. Ashok Seberawal

2008-08-26

P.K.MUSAHARY

body2008
JUDGMENT P.K. Musahary, J. 1. Heard Mr. N. Khan, learned Counsel for the Petitioner and also heard Ms. Yangi learned Counsel appearing for the Respondent No. 1. 2. The pleaded case of the Petitioner/Plaintiff is that she is the proprietor of a departmental shop under the name and style of M/s. Saurabh Departmental Store situated at Quallapatty, G.S. Road, Shillong, who executed the tenancy agreement on 1.10.2004 with the Performa-Respondent for a period of 9(nine) months with the rent payable at Rs.4,500 per month. On the basis of the said agreement, the Petitioner/Plaintiff has been occupying/possessing the shop premises and she has been running her business peacefully by paying monthly rent of Rs.4,500 PM to the performa-Respondent. On expiry of the said tenancy agreement, a fresh agreement was executed with the Performa-Respondent on 1.7.2006 for another period of 2 years at the enhanced rent of Rs.5,000 PM and accordingly, she was continuing her business in the said shop premises by paying the enhanced monthly rent of Rs.5,000 PM regularly. But suddenly, on 31.7.2005, the Respondent No. 1 along with performa-Respondent (landlord) came to the shop premises and asked the Petitioner to vacate the shop premises by force but they failed to do so and locked the shop premises. The Petitioner informed the local police about the incident but they declined to interfere on the plea that the dispute was in the civil nature and suggested her to approach the civil court for necessary protection. 3. Accordingly, the Petitioner filed a Title Suit in the court of the learned Assistant to Deputy Commissioner, Shillong for declaration of her right as a tenant and permanent injunction. The said suit was registered as T.S. No. 33(T) of 2005 along with a Misc. Case No. 95(T) of 2005 for grant of temporary injunction. The learned court of Assistant to Deputy Commissioner after hearing the Petitioner and having found prima facie case, granted ad interim injunction restraining the Defendant-Respondent from disturbing the peaceful possession of the Respondent over the shop premises. 4. Case No. 95(T) of 2005 for grant of temporary injunction. The learned court of Assistant to Deputy Commissioner after hearing the Petitioner and having found prima facie case, granted ad interim injunction restraining the Defendant-Respondent from disturbing the peaceful possession of the Respondent over the shop premises. 4. Against the said order of ad interim injunction dated 3.8.2005, the Respondent-Defendant filed an application under Order 39, Rule 4 of the Code of Civil Procedure for vacating the said order of ad interim injunction and the copy of the said application was served on the Petitioner on 21.8.2005 only without any formal notice as to when the matter is fixed for show cause or hearing and without giving any opportunity of hearing to the Petitioner to file rejoinder to the said application. The learned court of Assistant to Deputy Commissioner, Shillong, by an order dated 13.9.2005 kept the order of ad interim injunction dated 3.8.2005 in abeyance tiled disposal the application of the Petitioner. Thereafter, the application filed by the Respondent-Defendant was finally heard on 30.9.2005 by the learned Assistant to Deputy Commissioner and rejected the prayer for vacation of the ad interim order dated 3.8.2005 by a speaking order. The learned Assistant to Deputy Commissioner fixed a date on 20.10.2005 for filing show cause reply by the Respondent-Defendant against the injunction petition and the Respondent failed to file show cause reply in spite of reasonable opportunities given to him. The learned Assistant to Deputy Commissioner by his order dated 20.10.2005 made the ad interim order of injunction dated 3.8.2005 absolute till disposal of the main Title Suit. 5. Being aggrieved by the aforesaid order dated 20.10.2005 the Respondent preferred an appeal being FAO (Misc. Civil Appeal) No. 4(T)/2006 before the court of Additional Deputy Commissioner, Shillong. The said appeal was heard on 14.12.2007 and the judgment and order was pronounced on 7.3.2008 in which it has been observed in para 25 of the judgment that "the Appellant has not been able to make out a case for setting aside of the impugned order and the same cannot be set aside or quashed". The said appeal was heard on 14.12.2007 and the judgment and order was pronounced on 7.3.2008 in which it has been observed in para 25 of the judgment that "the Appellant has not been able to make out a case for setting aside of the impugned order and the same cannot be set aside or quashed". The Lower appellate court, however, considering the nature of the case, modified the impugned order dated 20.10.2005 to the extent that the Respondent No. 1 (present Petitioner) shall not sell the stock-in-trade till disposal of the Title Suit with further direction to furnish an inventory of the said stock-in-trade before the trial court within 15 days without disturbing the possession of the suit shop till disposal of the main Title Suit. The present Petitioner has approached this Court for setting aside the aforesaid impugned judgment and order dated 7.3.2008 passed in FAO (Misc. Civil Appeal) No: 4(T)/2006. 6. Mr. Khan, learned Counsel for the Petitioner submits that the learned court of Assistant to Deputy Commissioner by his order dated 30.9.2005 rejected the Respondents' petition under Order 39, Rule4 of the Code of Civil Procedure and the Respondent did not challenge the aforesaid order dated 30.9.2005 and instead he filed the aforesaid miscellaneous civil appeal challenging the order dated 20.10.2005 by which an ad interim injunction order dated 3.8.2005 was made absolute fill disposal of the main Title Suit. The learned lower appellate court, according to Mr. Khan, travelled beyond the pleadings made by the Respondent and passed the impugned judgment and order dated 7.3.2008 modifying the injunction order dated 20.10.2005. The learned lower appellate court, according to Mr. Khan, has exceeded his jurisdiction by modifying (the ad interim injunction order, which has caused great hardship to the Petitioner inasmuch as she cannot sell the stock-in-trade for which she would suffer financial hardship in running her business. The learned lower appellate court failed to consider the fact that the Petitioner is in possession of the suit shop and she has been able to show the prima facie case and balance of convenience for granting for granting the injunction in her favour and as such, according to Mr. Khan, the impugned judgment and order dated 7.3.2008 is liable to be set aside. 7. In support of his submissions, Mr. Khan, the impugned judgment and order dated 7.3.2008 is liable to be set aside. 7. In support of his submissions, Mr. Khan has placed the decision of the Apex Court rendered in the case of Dorab Cawasji Warden v. Coomi Sorab Warden and Ors. AIR 1990 SC 867 , in which the Apex Court discussed the circumstances under which the mandatory injunctions could be granted to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. 8. He has also cited the case of M.C. Chockalingam and Ors. v. Manickavasugam and Ors. AIR 1974 SC 104 for the purpose of showing that the legal possession cannot be divorced from an affirmative, positive legal right to possess the property and since the lease had expired by efflux of tune the tenant in such ease has no legal right to continue in possession. However, Mr. Khan has specifically relied upon the case of Ishwar Dutt v. Land Acquisition Collector and Anr. AIR 2005 SC 3165 wherein the Apex Court observed that although, the High Court has a wide powers in terms of Section 107 of the Code of Civil Procedure but it can not go outside the pleadings and make out new case. 9. Controverting the submissions made by Mr. Khan, the learned Counsel for the Petitioner, Mrs. Yangi, learned Counsel for the Respondent No. 1 submits that Respondent-Appellant opened a shop in the rented premises at Quallapatty, G.S. Road, Garikhana, Shillong under one Shri Shyam Lal Saha dealing in electronic items under the name and style of "Ashok Electronic" in 1982 and continued till 2001 when he changed it into a Departmental Store in the name of his wife Smt. Madhu Sabherwal in the year 2001 under the name and style of "Shoppe Centre" and by then the wife of Shyam Lal Shah was the owner and the house rent was paid to his wife, Smt. Indira Devi Shah. The Respondent obtained Trading Licence from the Khasi Hills Autonomous District Council in the name of his wife, Smt. Madhu Sabherwal and the business was expanded by taking loan from the State Bank of India, Bara Bazar Branch to the tune of Rs.2.00 lakhs by hypothecating the said shop to the Bank and the dues are yet to be liquidated. 10. It is further submitted by Mrs. Yangi that since December, 2004, the Respondent was preoccupied in other business and his wife was not keeping well and so he kept one Smt. Madhu Jalewa as manager of the shop but she hatched a conspiracy in collusion with the pro forma-Respondent and executed a false and fabricated agreement showing herself as the owner of the business and thereby took over the business of the suit shop including the stock-in-trade. According to Mrs. Yangi, the learned trial court made an ad interim injunction dated 3.8.2005 absolute by order dated 20.10.2005 without taking into consideration that the Respondent-Defendant was the owner of the shop and have been in continuous possession of the said shop and the balance of convenience was largely in favour of the Respondent as he was funning the shop/business by taking loan from the SBI, Bara Bazar Branch, Shillong and the Petitioner is merely an employee of the Respondent-Defendant. The learned trial court while granting the ad interim injunction also failed to consider the fact that the Respondent would suffer irreparable loss in terms of money as he borrowed an amount of Rs.2.00 lakhs from the SBI for running the business in the shop premises and the stock-in-trade is still in hypothecation. According to Mrs. Yangi, the learned lower appellate, court rightly modified the injunction order dated 20.10.2005 directing the Petitioner not to sell the stock-in-trade till disposal of the Title Suit on being satisfied that the stock-in-trade belonged to the Respondent and the same are under hypothecation to the Bank and no loss would be caused to the Petitioner in running her business since the lower appellate court dearly directed that the possession of the suit shop should not be disturbed till disposal of the main Title Suit. 11. 11. The main issue involved in this case is whether the learned lower appellate court in exercise of its power under Order 43, Rule 1 of the Code of Civil Procedure is competent to modify the injunction order granted by the trial court. On going through the order dated 3.8.2005 passed by the learned Assistant to Deputy Commissioner in Misc. Case No. 95(T) of 2005 by which ad interim injunction was granted, it is found that before passing the said order, the learned court below considered the existence of essential factors like prima facie case, balance of convenience and irreparable loss and recorded its definite findings to the effect that the Petitioner is the tenant under the program-Respondent and she is in occupation of the RCC Room No. 6 measuring 13 feet in length and 12 feet in breath (the suit shop) for the purpose of running the business in the suit premises by executing the tenancy agreement on 1.10.2004 for the period of 9(nine) months initially and on expiry of the said period, executed a fresh agreement on 30.6.2005 for a further period of 2(two) years with an enhanced rent of Rs.5,000 PM. 12. Having found that the Petitioner executed lease agreement and running the business in the suit shop, the learned trial court was satisfied with the existence of prima facie case, balance of convenience in favour of the Petitioner and the Petitioner would suffer irreparable loss and injury if the ad interim injunction is not granted. The Respondent filed a petit-ion under Order 39, Rule 4 of the Code of Civil Procedure for vacating the said ad interim order of injunction and he was heard on the said petition and the same was rejected on 30.9.2005 by the learned trial court by a reasoned speaking order. On going through the said order, it is found that the learned trial court recorded its findings to the effect that: (i) there is nothing on record that there is change in the existing circumstances after the grant of ad interim order of injunction; (ii) there is no indication that the order has caused undue hardship to the party, i.e., Respondent. 13. It is also found that the Respondent could not substantiate her allegation that the ad interim order of injunction was obtained by suppressing the facts or misleading the court. 13. It is also found that the Respondent could not substantiate her allegation that the ad interim order of injunction was obtained by suppressing the facts or misleading the court. The said ad interim injunction was made absolute by an order dated 20.10.2005 and against which, the Respondent preferred an appeal being FAO (miscellaneous civil appeal) No. 4(T) of 2006, which was heard by the learned Additional Deputy Commissioner and passed the impugned judgment and order dated 7.3.2008. Going through the said judgment and order dated 7.3.2008, it is found that the findings of the learned trial court regarding the existence of prima facie case and balance of convenience were not disturbed by the learned Additional Deputy Commissioner but the modification was ordered directing the Petitioner not to sell the stock-in-trade till disposal of the Title Suit, for which, an order has been passed to prepare an inventory. 14. On perusal of the written statement filed by the Respondent, it is found that the agreement for hypothecation of goods, machinery, books, debts and other assets was executed by the Respondent in favour of the State Bank of India on 5.6.2003. The State Bank of India, Bara Bazar Branch, Shillong sanctioned a cash credit to the tune of Rs.2.00 lakhs to the Respondent subject to fulfilment of certain terms and conditions which includes furnishing of stock statement as per format prescribed by Bank every month showing the total value of stock-in-trade. There is nothing on records that the Respondent ever submitted/furnished such stock statement as required by the State Bank of India, not to speak of upto-date monthly stock statement. There is no basis to come to a conclusion, even at least prima facie, that the stock-in-trade in the suit shop belonged to the Respondent, being the same stock under hypothecation with the SBI. There is no finding or materials in this regard. No reason has been recorded by the learned lower appellate court for presuming the stock-in-trade are the same stock hypothecated by the Respondent with the State Bank of India. There is not even any material on records that the Respondent in fact, hypothecated any stock or stock-in-trade with the State Bank of India. No reason has been recorded by the learned lower appellate court for presuming the stock-in-trade are the same stock hypothecated by the Respondent with the State Bank of India. There is not even any material on records that the Respondent in fact, hypothecated any stock or stock-in-trade with the State Bank of India. I fail to comprehend as to how the appellate court, without any record of stock-in-trade under hypothecation by the Respondent with the Bank, could pass an order directing the Petitioner not to sell the stock-in-trade in the suit shop being run by the Petitioner since 2004 and more so, when no such prayer was made in the appeal preferred by the Respondent before the learned court of Additional Deputy Commissioner, Shillong. 15. The established position in this case is that both the learned trial court and the appellate court have been satisfied about the prima facie case and the balance of convenience for granting ad interim injunction in favour of the Petitioner. In such circumstances, the High Court in exercise of its revisional jurisdiction would not normally interfere with the finding of facts of the learned courts below except where the courts below failed to apply their minds to the relevant factors for granting injunction. It would be appropriate to refer the case of M. Gurudas v. Rasaranjan (2006) 8 SCC 365 in which the Apex Court held that an appellate court would not ordinarily interfere with the findings of the below. Further, it would be appropriate to refer to the case of Ajendraprasadji N. Panday v. Swami K. Narayandasji (2005) 10 SCC 11 , (sic) Apex Court that while deciding the issued injunction, the court have to consider the cumulative factors, i.e., prima facie case, balance of convenience and irreparable loss and definite findings have to be given on these aspect on a prima facie basis. I have no doubt that the learned trial court considered all those aspects of the matter and recorded its finding as discussed earlier, and on being satisfied prima facie with the existence of the aforesaid three factors, granted ad interim injunction, which was made absolute in favour of the Petitioner, which needs no interference by the lower appellate court or by this Court. The impugned order dated 7.3.2008 passed by the learned lower appellate court modifying the injunction order dated 20.10.2005 passed by the trial court is unwarranted inasmuch as it has directed the Petitioner not to sell the stock-in-trade without recording any valid reason whatsoever. 16. In that view of the matter, the judgment and order dated 7.3.2008 failed to stand the judicial scrutiny of this revisional court and therefore, it is liable to be set aside and accordingly, the same is set aside. The revision petition stands allowed. 17. The inventoried stock-in-trade be made available to the Petitioner forthwith. 18. The LCR reveals a disturbing and sorrow State of affairs as the main T.S. has remained stagnated at the stage of settlement of issues only without any further progress, although, the ad interim injunction was granted more than three years ago. It is under such circumstances, this Court feels it imperative to direct the learned trial court to expedite disposal of the pending Title Suit itself within a period of six months from the date of receipt of the LCR in the interest of justice. 19. Send down the LCR to the court below forthwith. Petition allowed.