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2015 DIGILAW 73 (JK)

Mohammad Nasir Laherwal v. Saadat Mand Durani

2015-03-04

MUZAFFAR HUSSAIN ATTAR

body2015
JUDGMENT : MUZAFFAR HUSSAIN ATTAR, J. 1. The Respondent-plaintiff instituted a Civil Original Suit in the Court of 1st. Additional District Judge, Srinagar, against the Appellant-defendant, wherein he has prayed for issuance of decree of Mandatory Injunction directing the Appellant-defendant to handover the actual physical possession of the suit premises. It is further prayed that a decree for recovery of Rs. 60,000/- as arrears of manse profits along with interest at prevalent bank rates as well as future manse profits at Rs. 10,000/- p.m. till handing over of possession be also issued. 2. In the Plaint, the respondent-plaintiff has pleaded that he owns a shop measuring 16" x 36" with toilet 5" x 6" in the ground floor situated in front of his residential house at Sanat Nagar, Srinagar. It is also pleaded that the premises was licensed in favour of the Appellant-defendant on verbal understanding arrived at between the parties on 01st March, 2007, where under, it was agreed that the suit premises would be held by the Appellant- defendant initially for a period of one year at monthly fee of Rs. 6000/- extend-able at the sole option and prerogative of the respondent-plaintiff. It is also pleaded in the Plaint that the licensed premises was to be used for carrying out business of sale of spectacles. Further case set up in the Plaint is that the Appellant-defendant, instead of operating the business of spectacles, started cafe business, that too, almost a year after the period of license commenced. 3. The Appellant-defendant filed the written statement and projected counter claim. In the written statement, he has pleaded that the suit premises was given to him by the respondent-plaintiff on yearly lease basis. It is also pleaded that the Lease Deed was not executed as the respondent-plaintiff wanted his daughter to draft the same. It is further pleaded that the rent was agreed to be Rs. 6000/- pm in the first year with increase by 5% after expiry of first year of lease. It is further pleaded that the lease period commenced from 01st March, 2007 and the respondent-Plaintiff even received rent for the month of April and May 2008 @ Rs. 6,300/- pm. It is also pleaded that after renovating the suit premises, same was inaugurated on 05th April, 2008 and daughter of the respondent- plaintiff was one of the guests at the inaugural function. 6,300/- pm. It is also pleaded that after renovating the suit premises, same was inaugurated on 05th April, 2008 and daughter of the respondent- plaintiff was one of the guests at the inaugural function. It is also pleaded that the respondent-plaintiff would also supply milk to the Appellant-defendant @ Rs. 24/- per KG. Further case set up in the written statement is that the electric supply was disconnected by the respondent-plaintiff and even supply of water was stopped, which prevented the Appellant-defendant to continue to deal with his business in the suit premises. 4. In the counter claim, the Appellant-defendant has prayed for issuance of decree for an amount of Rs. 4/- lacs calculable from May, 2008 to April, 2009. It has also been prayed that the decree for remaining amount be also passed from May, 2009 onwards till water and electric supply is restored to the suit premises. 5. During the pendency of suit, the Appellant-defendant filed an Application before the learned trial Court, wherein he prayed that the respondent-Plaintiff be restrained from causing any interference in the running of business by Appellant-defendant and he be further directed to restore water and electric supply to the suit premises and not disconnect the same till disposal of the suit. The respondent-plaintiff filed objections to the said Application. 6. After hearing learned counsel for the parties, the learned trial Judge, vide order dated 06th May, 2010, dismissed the Application. It is this order, which is called in question in this Civil Miscellaneous Appeal. 7. At the time of hearing of the case, learned counsel for the parties stuck to the stand which the parties have taken in their respective pleadings before the learned trial Court. 8. The learned trial Court on 07th May, 2011, has framed issues, consequently putting the parties on trial. 9. In the facts of this case, the learned trial Court, after recording the evidence, has to return a finding as to whether the suit premises has been leased out to the Appellant-defendant or he was only authorised to use the same in the manner and as directed by the owner thereof. In view of stand taken by the respondent-plaintiff, the Appellant-defendant, has been permitted to use the suit property as a licensee without allowing him to have any interest in the said property. The finding returned on this issue will determine the fate of the case. 10. In view of stand taken by the respondent-plaintiff, the Appellant-defendant, has been permitted to use the suit property as a licensee without allowing him to have any interest in the said property. The finding returned on this issue will determine the fate of the case. 10. At this stage, diametrically opposite stands have been taken by the parties in their respective pleadings. In the facts of this case, in an ancillary Application, in absence of any definite material available on record, no finding can be recorded even for prima-facie purposes as to whether the said property has been leased out or the Appellant-defendant has been authorised to use the same without creating any interest thereon. However, while awaiting finding of the learned trial Court on this issue, the interests of the parties are required to be protected. 11. It is not in dispute that the suit property has been given to the Appellant-defendant by the respondent-plaintiff. The suit property cannot be kept idle during the pendency of the suit as that will not serve the interests of either of the parties. 12. The learned trial Court, while passing the impugned order, has not adverted its attention to the actual controversy involved in the case. He has dismissed the claim of the Appellant- defendant by picking up some threads here and there. The impugned order suffers from lack of application of mind. 13. The impugned order, in the facts and circumstances of this case, cannot sustain in law and is, accordingly, set aside. 14. The interests of the parties, during the trial of the suit, would require to be protected. The Application filed by the Appellant-defendant is disposed of in the following manner: "(a) The Appellant-defendant will pay Rs. 10,000/- per month to the respondent-plaintiff from the date the amount has remained unpaid to the respondent-plaintiff and will continue to pay the same with 5% increase per year till such time the suit is finally decided. (b) The respondent-plaintiff is directed to restore the electricity and water supply to the suit premises so as to enable the Appellant-defendant to continue with his business. The charges on electric and water supply shall be paid by the Appellant-defendant. (b) The respondent-plaintiff is directed to restore the electricity and water supply to the suit premises so as to enable the Appellant-defendant to continue with his business. The charges on electric and water supply shall be paid by the Appellant-defendant. (c) This arrangement is purely temporary in nature and will not confer any benefit on either of the parties during the pendency of the suit and rights of the parties shall be adjudicated upon strictly in accordance with law by the learned trial Court." 15. The Appeal stands, accordingly, disposed of along with connected IAs. 16. The learned trial Court to expedite the trial of the case. Registry to return the record of the case forthwith.