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2015 DIGILAW 321 (ALL)

Musarrat Jahan v. Rajani Devi

2015-02-18

ASHWANI KUMAR MISHRA

body2015
JUDGMENT Ashwani Kumar Mishra, J. It appears that the plaintiffs-petitioners filed a suit for permanent injunction, wherein an application for grant of ex-party mandatory injunction was also moved to restore the possession of the plaintiffs-petitioners over the shop concerned. Both the courts below have found that the plaintiffs were put in possession for a period of one year in the year 2005, pursuant to a rent agreement, term of which had already expired. It has also been found that the shop remained closed w.e.f. 1.10.2008 and the suit has been filed on 18.11.2009. Both the courts below have found that necessary ingredients to justify issuance of a direction of mandatory injunction is not available, in the facts and circumstances of the present case. 2. Reliance has been placed upon a judgment of Hon'ble Apex Court reported in AIR1990 S.C. 867 Dorab Cawasji Warden Vs. Coomi Sorab Warden and others. 3. Learned counsel for the petitioner submits that the defendants had unauthorisedly evicted the plaintiffs from possession, and, therefore, an application for restoration of possession was liable to have been allowed. 4. Upon consideration of the materials available on record, this court finds that the courts below have concurrently found that the shop in question was lying locked since 1.10.2008 and the suit was filed on 18.11.2009. It was also found that the defendants are admittedly in possession and the rent agreement, pursuant to which the plaintiffs were put in possession, was only for a period of one year, which has not been extended thereafter. In such circumstances, both the courts below have refused to grant interim relief of restoration of possession. This court found no perversity or illegality therein so as to require interference in the present proceedings. 5. Petition fails and is consigned to records. 6. However, it is observed that the court concerned shall proceed to adjudicate the proceedings of the case on merits, without granting unnecessary adjournment to either of the parties, without being influenced by any of the observations made by the court below, while considering the application for grant of temporary injunction.