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2013 DIGILAW 187 (HP)

Kamla Sethi v. Varinder Kumar

2013-03-20

KULDIP SINGH

body2013
JUDGMENT : Kuldip Singh, J. (Oral) This petition under Article 227 of the Constitution of India has been filed against order dated 19.6.2012 passed by learned District Judge, Kullu, Himachal Pradesh in Misc. Petition No. 219/2012 in Civil Suit No. 5/12. 2. The learned counsel for the petitioner/defendant has submitted that the respondent has filed a suit for permanent prohibitory injunction and recovery against petitioner. The pleaded case of the respondent is that petitioner is owner of Hotel Kalinga Grand, Kanyal Road, Ranghari Manali. The petitioner has leased out the Hotel Kalinga Grand to the respondent for an annual rent of Rs. 25,00,000/- for a period of 10 years w.e.f. April, 2007 to April, 2017. The further case of the respondent is that at the instance of petitioner, he renovated nineteen rooms of the hotel and has spent Rs. 19,00,000/- on the renovation in November, 2011. The petitioner threatened the respondent to enhance the lease rent to Rs. 35,00,000/- or she would dispossess the respondent from the suit premises. The respondent claimed that he has right to retain the suit property till April, 2017 and petitioner has no right to cause any interference in the running of the hotel. 3. The suit was contested by the petitioner and objections of maintainability, no cause of action and concealment of material facts, improper identification of suit property have been taken. It has been stated that the suit has been filed on false and vexatious grounds. The petitioner took the defence that the suit property was given on lease for five years from 16.5.2007 to 15.5.2012 vide lease agreement dated 15.5.2007 for annual lease amount of Rs. 25,00,000/-. The lease agreement dated 15.5.2007 has determined by afflux of time. The respondent after 15.5.2007 is a trespasser in the hotel. The respondent has not paid lease rent Rs. 6,50,000/- from 16.5.2011 to 15.5.2012. The remaining claim of the respondent was also denied. 4. The respondent filed an application under Order 39 Rules 1 and 2 CPC. The trial Court granted ad-interim injunction on 15.5.2012. The petitioner moved an application under Order 39 Rule 4 CPC for vacation of the order. The learned District Judge considered both the applications and disposed of the two applications by common order dated 19.6.2012. The learned District Judge has observed that the respondent has no right to maintain the application for grant of adinterim injunction. The petitioner moved an application under Order 39 Rule 4 CPC for vacation of the order. The learned District Judge considered both the applications and disposed of the two applications by common order dated 19.6.2012. The learned District Judge has observed that the respondent has no right to maintain the application for grant of adinterim injunction. He has no prima-facie case, balance of convenience and irreparable loss in his favour. The learned District Judge has however observed that that petitioner shall not dispossess the respondent forcibly from the premises and shall have right to recover the possession from the respondent by following due process of law. The order dated 19.6.2012 has been assailed by the petitioner in the present petition. 5. The learned counsel for the petitioner has submitted that the learned District Judge has rightly dismissed the application of the respondent after holding that he has no prima-facie case, balance of convenience and irreparable loss in his favour but the learned District Judge exceeded jurisdiction by observing that the respondent can be dispossessed from the premises in question by the petitioner only by following due process of law. The learned counsel for the petitioner has assailed the order dated 19.6.2012 to this extent in the present petition. 6. It is admitted case of the petitioner that respondent has filed a suit for permanent injunction etc. which is pending in the Court. The respondent is claiming lease of the premises upto April, 2017 which has been seriously disputed by the petitioner. According to petitioner, the lease period of the respondent is already over on 15.5.2012 by afflux of time. The learned District Judge has held that prima-facie case, balance of convenience and irreparable loss are not in favour of the respondent. The respondent even as per case of the petitioner is in unauthorized possession of the premises after 15.5.2012. In these circumstances, no fault can be found in the observation of the learned District Judge when he has observed in the impugned order that the respondent can be dispossessed from the premises by the petitioner by following due process of law only. There is no error of jurisdiction and no merit in the petition, hence the petition is dismissed.