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2014 DIGILAW 164 (MEG)

Rajesh Kumar Agarwal v. Shri Abdul Muquit

2014-07-01

PRAFULLA C.PANT

body2014
Judgment Prafulla C. Pant, CJ. 1. Heard. 2. By means of this petition filed under Article 227 of the Constitution of India, the petitioner (defendant) has challenged the order dated 27.05.2014 passed by Munsiff, Shillong in Misc. Case No. 6(H) 2014 in Title Suit No. 6(H) of 2013. The petitioner (defendant) has further challenged the order dated 27.05.2014 passed in Misc. Case No. 5(H) of 2014 in aforesaid suit. 3. Heard learned counsel for the parties and perused the paper on records. 4. Brief facts of the case are that the plaintiff/respondent Abdul Muquit filed Title Suit No. 6(H) 2013 before the Court of Munsiff Shillong with the pleadings that he runs a business in the name and style of M/s. Fashion Corner, Shop No. DF-2, situated at Glory's Plaza Building, Police Bazar, Shillong. He also pleaded that said shop was taken on rent from proforma defendant Radheshyam Goenka in the year 1989. It is also stated by the plaintiff Abdul Maquit that since the room (Shop DF-2) was not ready for delivery, as such the plaintiff was accommodated in Shop No. C-3 as a temporary arrangement. It is alleged by the plaintiff Abdul Muquit that the present petitioner Rajesh Kumar Agarwala (defendant No. 1) was a money lender and plaintiff had taken loan of Rs. 5,00,000/- from him. It is further alleged by the plaintiff that defendant No. 1 (present petitioner), in connivance with other defendants grabbed the shop let out to the plaintiff, and even after repayment of the loan, the cheque books etc. given by the plaintiff as security were not returned to him. With the above pleadings, permanent injunction was sought against defendants from transferring the suit property to any other person. In said suit, an application under Order 39 Rule 1 and 2 of Code of Civil Procedure 1908 read with Section 151 of the CPC was moved. 5. Trial court after hearing the plaintiff initially i.e. on 13.09.2013, directed the parties to maintain status quo. However, it appears that the police locked Shop No. DF-2 on which defendant approached this Court and filed WP(C) No. 47 of 2014, which was disposed of by this Court vide its order dated 06.03.2014, directing the writ petitioner to approach the trial court. However, it appears that the police locked Shop No. DF-2 on which defendant approached this Court and filed WP(C) No. 47 of 2014, which was disposed of by this Court vide its order dated 06.03.2014, directing the writ petitioner to approach the trial court. Consequently, the defendant approached the trial court and trial court after hearing the parties and considering the report of Nazir/bailiff who inspected the spot passed impugned order dated 27.05.2014, whereby, Officer-in-charge of Police Station concerned was directed to unlock the shop, but the bailiff was directed to see that the occupation of the plaintiff is restored as it existed before. Hence, this petition. 6. Learned counsel for the petitioner (defendant No. 1) drew attention of this Court to the Tenancy Agreement executed on 01.07.2008 by the land lord M/s. Balchand Hariram represented by RS Goenka, copy of which is annexed as Annexure-1 to the petition which discloses that Shop No. DF-2 was let out to M/s. Donbok Impex represented by its proprietor Rajesh Kumar Agarwal (defendant No. 1). Attention of this Court is further drawn to the Agreement dated 30.08.1989 executed by M/s. Balchand Hariram represented by Radhey Shyam Goenka in favour of M/s. Fashion Corner represented by its proprietor Abdul Muquit (plaintiff), whereby, Shop No. C-3 was let out to him. 7. Apart from above, attention of this Court is drawn to the copy of the electricity bill (page 49) which shows that electricity bill of Shop No. DF-2 was in the name of Rajesh Kumar Agarwala (defendant No. 1/present petitioner), this bill is dated 12.11.2012. 8. Reference is also made on behalf of the present petitioner to the Bailiff report dated 04.04.2014 after he inspected the Shop No. DF-2, Glory's Plaza, Police Bazar, Shillong on 28.03.2014. Said report also discloses that shop was opened with the keys given by Rajesh Kumar Agarwala (defendant No. 1). Report further discloses that the Municipal license of the shop was also in the name of said defendant. Copy of the subsequent/additional report dated 13.05.2014 is also on the record which shows that inspection was done on 03.05.2014 in compliance of order of the trial court dated 29.04.2014. 9. Report further discloses that the Municipal license of the shop was also in the name of said defendant. Copy of the subsequent/additional report dated 13.05.2014 is also on the record which shows that inspection was done on 03.05.2014 in compliance of order of the trial court dated 29.04.2014. 9. On the basis of above documents, it is argued that the trial court has completely misread the evidence on record, and even after being there prima facie case in favour of the defendant, in the operative portion of the impugned order, the trial court directed the bailiff to hand over the possession of the shop to the plaintiff. 10. In reply to above, learned counsel for the respondent/plaintiff submitted that the goods found in the shop belonged to the plaintiff which were pledged by the plaintiff to the defendant, after a loan was taken from him. Assuming that what the learned counsel for plaintiff stated is true, on the basis of the above, it cannot be said that defendant No. 1 stood dispossessed from the shop of which he has otherwise shown prima facie possession over it. 11. From the above discussion, this Court is of the view that prima facie it cannot be said that the plaintiff has shown that he was in possession of Shop No. DF-2 on the date when the police locked the shop. That being so, the impugned order is liable to be set aside directing the bailiff to hand over the possession of the shop to the plaintiff which amounts practically decreeing the suit for possession even before prima facie case is shown by the plaintiff. While making this observation, this Court conscious of the fact that the trial is still pending with the trial court, and parties are yet to get their evidence recorded to show actual possession on the date of filing of the suit. As such, without expressing any opinion as to the final merits of the suit, this Court is of the view that the impugned order requires interference as the plaintiff has failed to show prima face case in his favour. 12. Accordingly, the petition (CR(P) No. 11 of 2014) is disposed of with the direction that the impugned order dated 27.05.2014 is hereby set aside, and the parties are directed to maintain status quo as directed by the trial court earlier. 12. Accordingly, the petition (CR(P) No. 11 of 2014) is disposed of with the direction that the impugned order dated 27.05.2014 is hereby set aside, and the parties are directed to maintain status quo as directed by the trial court earlier. The Shop No. DF-2 locked by the police shall be opened, and the bailiff shall hand over the possession of the shop back to defendant No. 1 (present petitioner) with whose keys as reported by him that he opened the shop (before being locked by the police).