JUDGMENT : These writ petitions have been filed by defendant-petitioners against the judgments dated 19.11.2014 passed by the Additional District Judge No.1, Jhunjhunu whereby two different appeals filed by the plaintiff-respondent-Ram Gopal Modi have been allowed and the order of injunction dated 3.9.2013 passed in favour of plaintiff-petitioners on their application for grant of temporary injunction filed in their counter claim by the Court of Civil Judge (Junior Division), Jhunjhunu dated 3.9.2013 has been reversed and application filed by plaintiff-respondent in his suit under Order 39 Rule 1 and 2 CPC read with Section 151 CPC has been allowed. Plaintiff-Ram Gopal filed a suit for permanent injunction along with application for temporary injunction inter alia praying that a shop situated adjoining main gate of Rani Sati Temple, Jhunjhunu was in his possession as a tenant. He has been selling certain eatables, henna (mehndi), Coconut and the sweets (prasad) and other stationery articles. He has also obtained registration number from Commercial Taxes Department and electricity connection. He has obtained licence from Labour Department as also from Food Department. Original tenant was Mahabir Prasad and plaintiff-Ram Gopal Modi was his adopted son. When Rani Sati Temple Trust wanted to dispossess him from the shop, he filed a suit, which was decreed by the trial court on 4.3.2008 directing that plaintiff shall not be dispossessed except by due process of law. Appeal filed thereagainst by the trust was dismissed by the Additional District Judge, Jhunjhunu vide judgment and decree dated 9.4.2009. According to plaintiff, Rani Sati Temple Trust had filed a suit for eviction of defendant Vinod Kumar Saini on 10.4.1997. Vinod Kumar in his written statement as also in his statement recorded during trial in that suit accepted that he was sub3 tenant of plaintiff-Ram Gopal Modi and that Ram Gopal Modi was having possession of the disputed shop. Vinod Kumar had pleaded that he was employee of plaintiff-Ram Gopal. Plaintiff terminated his service on 29.7.2013 and served a notice to him through his advocate to that effect. He was given advance salary of two months of July and August, 2013 vide demand draft. Plaintiff-Ram Gopal Modi was taken ill, therefore, he did not open the shop on 19th and 20th July, 2013. Plaintiff terminated his service on 29.7.2013 and served a notice to him through his advocate to that effect. He was given advance salary of two months of July and August, 2013 vide demand draft. Plaintiff-Ram Gopal Modi was taken ill, therefore, he did not open the shop on 19th and 20th July, 2013. When plaintiff went to his shop along with his son Pramod Modi in the morning of 21st July, 2013, he found that locks of the Almirah on both sides of the shutters of the shop were broken and wooden platform (takhta) in front of the counter was also found opened. His servant Vinod Kumar had taken out various items from the almirahs and was trying to sell the same. He had stolen half such items. When the plaintiff- Ram Gopal Modi in the presence of Promod, Suresh Kumar Gupta and Leeladhar Swami, demanded explanation from him, Vinod Kumar insisted that he would not allow the plaintiff to open the shop. 5-7 anti social elements were there to help him. Defendant-Vinod Kumar had stolen his goods worth Rs.10,000 from the shop in question. Plaintiff lodged first information report with the Police Station on 22.7.2013. The police filed a complaint against him under Section 106 and 117 Cr.P.C. before the SDO, Jhunjhunu. Plaintiff separately filed a criminal complaint against the defendant in the Court for offence u/s.379, 381, 341 and 383 IPC, which has been sent to the police for investigation u/s.156(3) Cr.P.C. Owing to this illegal action on the part of Vinod Kumar, plaintiff served a notice on him and terminated his service. Prayer was made for issuing a decree of injunction against the defendant injuncting him not to interfere with the peaceful possession and use of the shop by the plaintiff. Defendant-petitioners filed written statement and also counter claim therewith. Defendants filed application under Order 39 Rule 1 and 2 CPC read with Section 151 CPC refuting the aforesaid pleadings of the plaint. According to defendant petitioner no.1-Vinod Kumar and his son defendant no.2-Vijendra Saini, they were running their shop with the written permission of Rani Sati Temple Trust on one side of the shop of plaintiff by putting almirahs and wooden platform (Takhta). Defendant-Vinod Kumar denied that he was employee of the plaintiff. Plaintiff has not come with clean hands and concealed the facts. Defendant-Vinod Kumar was not paying rent to plaintiff directly. Defendant-Vinod Kumar denied that he was employee of the plaintiff. Plaintiff has not come with clean hands and concealed the facts. Defendant-Vinod Kumar was not paying rent to plaintiff directly. Plaintiff wants to evict defendants without the due process of law and, therefore, he has cooked up a false story claiming that defendant-Vinod Kumar was his employee. Defendant produced along with written statement copy of the site plan showing location of almirah and wooden platform from where he was running his business. It was pleaded that defendant was initially paying to the plaintiff Rs.250 per day for the use of the place. Thereafter, he started paying Rs.7,500 per month from 2008. This arrangement was going on with the implied consent of the Rani Sati Temple Trust. Thereafter, dispute arose between plaintiff and defendant because plaintiff started demanding a sum of Rs.25,000 per month. This dispute ultimately led to plaintiff lodging a criminal complaint against the defendant petitioner and serving him a notice on the false assertion that defendant-Vinod Kumar was his employee. Defendant also filed an application under Order 39 Rule 1 and 2 CPC for grant of temporary injunction along with his counter claim. Learned trial court by order dated 3.9.2013 directed plaintiff not to dispossess defendants from the disputed shop till decision of the suit, either by himself or by any other person. This finding has been reversed by the learned Additional District Judge in the appeal filed by the plaintiff which allowed the application of the plaintiff under Order 39 Rule 1 and 2 of CPC read with Section 151 CPC. Shri S.K. Gupta, learned counsel appearing for the petitioner-defendants has argued that the appellate court was wholly unjustified in interfering with the discretion lawfully exercised in favour of the defendants by the trial court. In fact, appellate court has in doing so exceeded its jurisdiction. It has failed to appreciate that non granting temporary injunction would lead to stoppage of right of defendant-Vinod Kumar to earn his livelihood. When main suit itself has to be decided, interest of the defendants has to be safeguarded. It is argued that the appellate court has failed to appreciate that defendant-petitioner though has admitted in his affidavit that he was servant of the shop in the earlier suit, but at the same time, he also stated that later on he left the service and started doing his own business. It is argued that the appellate court has failed to appreciate that defendant-petitioner though has admitted in his affidavit that he was servant of the shop in the earlier suit, but at the same time, he also stated that later on he left the service and started doing his own business. The appellate court cannot proceed on the assumption that petitioner-Vinod Kumar would forever remain in the service of plaintiff. There was no denial of the fact that defendant-petitioner Vinod Kumar had been doing business from the shop in question. He has obtained the required licence and has also been filing income tax returns. The appellate court has not discussed all the affidavits filed in support of the petitioners except that of Mohanlal Tulsiyan. The appellate court has by not granting status quo order in favour of defendant-petitioners has virtually decided the whole matter. Learned counsel for the petitioners has submitted that the police had filed final report on 31.10.2013 in the FIR registered against the petitioners at the time of dispute on 22.7.2013 because it found that the defendant-petitioners were running their business on the wooden counter and almirahs towards the northern side of the shop with the permission of the plaintiff. Learned counsel for the petitioners in support of his arguments has relied on the judgment of Supreme Court in Vashu Deo vs. Balkishan- (2002) 2 SCC 50 , division bench of this Court in Musa vs. Badri Prasad-RLW 1953 page 417 and judgement of this Court in Girdhari Lal vs. Mahadevi Singh- AIR 1968 (Raj.) 237 . Per contra, Shri M.M. Ranjan, learned senior counsel for the plaintiff-respondent opposed the writ petitions and submitted that the appellate court has rightly recorded the finding that defendant-Vinod Kumar entered into the premises because of his services. His contention that he was doing the business from the wooden platform (takhta), almirahs and counter etc. and paying rent to the plaintiff has not been proved. The appellate court has given a finding that agreement as alleged by the defendant was never made. No documentary evidence has been produced to prove such agreement. Otherwise also, there is no evidence of payment of rent of Rs.250/- per day formerly and thereafter Rs.7,500 per month, to the plaintiff by the defendant. The appellate court has given a finding that agreement as alleged by the defendant was never made. No documentary evidence has been produced to prove such agreement. Otherwise also, there is no evidence of payment of rent of Rs.250/- per day formerly and thereafter Rs.7,500 per month, to the plaintiff by the defendant. Learned senior counsel submitted that Trustee of the Rani Sati Temple Shri Mohanlal Tulsiyan filed his affidavit refuting the claim of defendant that he was taken as sub-tenant with the consent of the original landlord. The appellate court has rather given a finding that the wooden platform (takhta) and almirah/counter from where the defendant claims to run his business, in fact, belonged to plaintiff. Defendant-petitioner failed to produce that he was sub-tenant in his capacity as sub-tenant. Moreover, learned senior counsel submitted that after the Rajasthan Rent Control Act, 2001 was enforced with effect from 1.4.2003, concept of sub-tenancy has completely been abolished. In the definition of the `landlord' in old Rent Control Act, 1950 a tenant is considered as landlord in relation to his sub-tenant. Now after 2001, there is no such provision. Learned senior counsel has relied on the judgement of Supreme Court in A. Shanmugam vs. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalania Sangam & Ors.- (2012) 6 SCC 430 and has argued that therein it was held by the Supreme Court that the suit for injunction filed by the watchman seeking permanent injunction against his dispossession by owner of the premises would not be maintainable because such person holds property on behalf of principal (owner) and acquires no right or interest therein irrespective of long possession. Learned senior counsel has relied on judgement of the Supreme Court in Shalini Shyam Shetty & Anr. vs. Rajendra Shankar Patil10 (2010) 8 SCC 329 and argued that it has been held therein that power to issue writ of certiorari under the supervisory jurisdiction has to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Learned senior counsel for the respondent has also relied on the judgement of this Court in Gorishankar vs. Dr. Jagmohan Prasad Agarwal & Ors.-2014 (1) RLW 844 (Raj.). I have given my anxious consideration to the rival submissions and perused the material on record. Learned senior counsel for the respondent has also relied on the judgement of this Court in Gorishankar vs. Dr. Jagmohan Prasad Agarwal & Ors.-2014 (1) RLW 844 (Raj.). I have given my anxious consideration to the rival submissions and perused the material on record. A conjoint reading of the orders passed by the trial court dated 3.9.2013 as also the appellate court dated 19.11.2014, makes it clear that the fact about the defendant-petitioners continuing their business towards the northern side of the shop of the plaintiff, which is indicated as `ABCD' in the map enclosed with the written statement of the defendants with uneven size being 12 feet and 11.10 inches in the length and 2 arms of its are in the length of 4 feet and 6 feet and 4 inches. It is also not disputed that defendant-petitioners are in possession of that part of the shop for last more than 20 years. While the defendant-petitioner Vinod Kumar contends his possession as a sub-tenant of the tenant and that he was paying certain amount as rent to the tenant of the original landlord. Plaintiff-Ram Gopal on the other hand contends that the possession of the defendant-petitioner Vinod Kumar was in his capacity as an employee and that it was permissive in nature. He has terminated his (Vinod Kumar) employment by notice and gave him two months advance salary for that purpose. This notice was sent by plaintiff to the defendant after first information report was registered against him by plaintiff alleging that he (defendant) had stolen certain goods from plaintiff's shop. Copy of the final report submitted by the police in the matter has been placed for perusal of the Court. The police has given final report by stating that this appears to be a concocted story. The police has noted that dispute was that in the shop on the southern side of the main gate of the Rani Sati Temple, original tenant was Mahabir Prasad Modi. Mahabir Prasad was issueless and he had taken plaintiff Ram Gopal Modi in adoption. Mahabir Prasad died in 1997 and thereafter Ram Gopal Modi started running the shop. Initially, Vinod Kumar Saini continued to be employee of Ram Gopal Modi, but when Mahabir Prasad died, the Rani Sati Temple Trust filed a suit for eviction of Vinod Kumar describing him as a trespasser. Mahabir Prasad died in 1997 and thereafter Ram Gopal Modi started running the shop. Initially, Vinod Kumar Saini continued to be employee of Ram Gopal Modi, but when Mahabir Prasad died, the Rani Sati Temple Trust filed a suit for eviction of Vinod Kumar describing him as a trespasser. In the written statement filed in that suit in 2003, Vinod Kumar Saini maintained that he was employee of Ram Gopal Modi. According to police investigation, a compromise was arrived at between the parties and Vinod Kumar Saini with the oral consent of Ram Gopal Modi placed a counter/almirah and a wooden platform (takhta) on the northern side of the shop and started running his own shop and as per this compromise part of the shop thus remained in possession of Ram Gopal Modi. In lieu thereof, the defendant Vinod Kumar agreed to pay a sum of Rs.250 per day as rent to him, which included electricity expenses as well. Plaintiff-Ram Gopal Modi then started demanding Rs.25,000 as rent and this lead to dispute between the parties. The police found the allegation of theft of the articles from the shop of Ram Gopal Modi and forceable possession on the part of the shop by Vinod Kumar Saini as false and submitted negative final report. The trial court has also taken into consideration the outcome of the proceedings under Section 107 and 116 of Cr.P.C. in which the report was submitted by the Executive Magistrate in 2013 admitting possession of the defendant-Vinod Kumar Saini. The trial court thus concluded that when the defendant-petitioner was in possession of the part of the shop; whether in the capacity of employee or a sub-tenant, his possession is not disputed. The fact that he was employee of the plaintiff as admitted in his written statement filed by him in response to the suit of eviction by the Rani Sati Temple Trust was now seriously disputed by him. Apart from one affidavit of Shri Mohanlal Tulsiyan, there were certain affidavits of other persons. The trial court also did not believe that the defendant would work as an employee of the respondent only for a petty sum of Rs.2,000 per month. Apart from one affidavit of Shri Mohanlal Tulsiyan, there were certain affidavits of other persons. The trial court also did not believe that the defendant would work as an employee of the respondent only for a petty sum of Rs.2,000 per month. The trial court thus concluded that the status of the defendant whether as employee or as sub-tenant is a question of fact, which will have to be determined on the basis of evidence to be led by the parties, but trial court on the basis of evidence so far produced on these contentious questions, found prima facie case in favour of defendant-petitioner- Vinod Kumar and also held that if he is evicted before the determination of all these issues, irreparable loss would be caused to him and that balance of convenience also lay in his favour. But, the appellate court has literally relied on the earlier written statement filed by the defendants in the suit of the Rani Sati Temple Trust way back on 10.4.1997 and did not believe the other evidence by way of affidavits of defendant and several other persons and the evidence otherwise emerging from the final report filed by the petitioner in the FIR No.260/2013 for offence u/s.379, 381, 341 and 383 IPC as also the report filed by the Executive Magistrate, that the contrary view also was possible that in 2004, there was a compromise arrived at between the parties according to which the plaintiff-Ram Gopal permitted the defendant- Vinod Kumar to run his own shop from the part of his shop from the northern side and the defendant started paying him rent. Presently, it is not the question whether the plaintiff could have sublet the shop and permitted the defendant to independently start his business there, contrary to his stand in his earlier written statement that he was employee of the tenant or that sub-tenancy is not at all permissible as per the provisions of the new Rent Control Act of 2001. These issues will have to be decided during trial because the defendant-petitioner Vinod Kumar has also claimed that initially of course he was employee of the Mahabir Prasad Modi, the adoptive father of the plaintiff and thereafter of plaintiff-Ram Gopal Modi, but at later stage, he ceased to be his employee and started his own business with the consent of both plaintiff and the Rani Sati Temple Trust. All these questions are matter of evidence. The Supreme Court in Vashu Deo vs. Balkishan- (2002) 2 SCC 50 considering the definition of the `landlord' and `tenant' in Section 3, 4 and 7 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, has held that combined reading of these Sections makes it clear that in relation to a sub-tenant, a tenant is a landlord and subtenant is a tenant in relation to the principal tenant, who has let out the premises to him. Such tenant is protected by the provisions of the Act. Upon tenancy coming to an end, he does not cease to be a tenant, but rather becomes a statutory tenant under the Transfer of Property Act or terms of contract. What would be status of sub-tenant under the new Rent Control Act of 2001 is significant question that calls for determination by the trail court. The division bench of this Court in Musa vs. Badri Prasad-RLW 1953 page 417 has held that it is well established principle in connection with temporary injunction that plaintiff should be able to satisfy the Court that (1) he has prima facie case, (2) that the court's interference is necessary to protect the party applying for temporary injunction from the irreparable injuries before his legal right is established and (3) that the comparative mischief or inconvenience, which is likely to ensue from withholding the injunction will be greater than that which is likely to arise from granting it. This Court in Girdhari Lal vs. Mahadevi Singh- AIR 1968 (Raj.) 237 has held that appellate court should be slow in upsetting a decision of a trial court in a matter relating to grant of a temporary injunction. The Supreme Court in Ramdev Food Products (P) Ltd. vs. Arvindbhai Rambhai Patel- (2006) 8 SCC 726 dealing with the power of the appellate court to interfere with the discretionary jurisdiction of trial court in granting interlocutory injunction, held that normally the appellate court would be slow to interfere with the discretionary jurisdiction of the trial court. The grant of an interlocutory injunction is in exercise of discretionary power and hence, the appellate courts will usually not interfere with it. The grant of an interlocutory injunction is in exercise of discretionary power and hence, the appellate courts will usually not interfere with it. However, the appellate courts will substitute their discretion if they find that discretion has been exercised arbitrarily, capriciously, perversely, or where the court has ignored the settled principles of law regulating the grant of refusal of interlocutory injunctions. But, at the time time, their Lordships held that the appellate court may not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. The Supreme Court in Wander Ltd. & Anr. vs. Antox India (P) Ltd.-1990 (Suppl) SCC 727 has succinctly stated the law in this respect in para 14 of the report, which is extracted below: “14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph: (SCR 721) “... These principles are well established, but as has been observed by Viscount Simon in Osenton (Charles) & Co. v. Johnston `...the law as to the reversal by a Court of Appeal of an order made by (a) Judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case.”' The appellate judgment does not seem to defer to this principle.” The Supreme Court in a recent judgement in Mohd. Mehtab Khan & Ors. vs. Khushnuma Ibrahim Khan & Ors.- (2013) 9 SCC 221 followed its earlier judgement in Wander Ltd., supra and dealing with the power of appellate court in such like situation held in para 20 as under: “20. In a situation where the learned Trial Court on a consideration of the respective cases of the parties and the documents laid before it was of the view that the entitlement of the plaintiffs to an order of interim mandatory injunction was in serious doubt, the Appellate Court could not have interfered with the exercise of discretion by the learned Trial Judge unless such exercise was found to be palpably incorrect or untenable. The reasons that weighed with the learned Trial Judge, as already noticed, according to us, do not indicate that the view taken is not a possible view. The Appellate Court, therefore, should not have substituted its views in the matter merely on the ground that in its opinion the facts of the case call for a different conclusion. Such an exercise is not the correct parameter for exercise of jurisdiction while hearing an appeal against a discretionary order. The Appellate Court, therefore, should not have substituted its views in the matter merely on the ground that in its opinion the facts of the case call for a different conclusion. Such an exercise is not the correct parameter for exercise of jurisdiction while hearing an appeal against a discretionary order. While we must not be understood to have said that the Appellate Court was wrong in its conclusions what is sought to be emphasized is that as long as the view of the Trial Court was a possible view the Appellate Court should not have interfered with the same following the virtually settled principles of law in this regard as laid down by this Court in Wander Ltd. v. Antox India (P) Ltd.” In the present case too, the trial court has granted injunction in favour of the defendant20 petitioner-Vinod Kumar by recording a finding of prima facie case on his application of temporary injunction in his favour in his counter claim, rather than in favour of the plaintiff. The finding of prima facie case recorded by the trial court cannot be said to be arbitrary, perverse, erroneous or it cannot be said that such finding, which has been recorded ignoring the settled principles of law regulating the grant of refusal of interlocutory injunctions. The grant of injunction, when possession of the defendant-petitioner for a long time, in whatever capacity it may have been, so established, cannot be said to be unjustified. The view which the trial court has taken of the matter was a possible view on the material and evidence available on record. The appellate court was thus not justified in interfering with the discretion exercised by the trial court. In the result, the writ petitions are allowed. The impugned orders dated 19.11.2014 are quashed and set aside and both the orders dated 3.9.2013 are maintained.