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Rajasthan High Court · body

2016 DIGILAW 699 (RAJ)

Narayan Agarwal v. Kalyan Singh Jodha

2016-05-18

ARUN BHANSALI

body2016
ORDER : Arun Bhansali, J. This writ petition has been filed by the petitioner aggrieved against the order dated 12.4.2016 passed by the trial court, whereby the application filed by the petitioner under Order 39, Rule 7 CPC has been rejected. 2. The petitioner filed a suit for permanent and mandatory injunction against the respondents inter-alia with the averments that the shop in question was taken on rent by the petitioner about 15 years back and the petitioner was conducting business in the name of Shankar Automobile pertaining to motor parts. 3. The goods worth lacs of rupees were lying in the shop and the plaintiff had engaged one Nema Ram as Munim and was regularly making payment of rent to defendant No.1 - Kalyan Singh. The defendants seeking to illegally enhance the rent to the shop started pressuring the petitioner and when the pressure did not succeed, they openly declared that they will get the shop vacated. 4. The allegations were made that the defendant No.3, who belongs to the community of defendant Nos.1 & 2 and is in-charge of police station, Molasar at about 7:30 p.m. on 26.3.2016 entered the shop, turned out the munim and has put their locks on the shop wherein goods worth lacs of rupees were lying along with cash and other important documents. 5. On receiving information, the plaintiff went to the police where defendants No.1 & 2 were already present and when FIR was sought to be lodged, the same was refused by the defendant No.3 and the key of the shop was also refused to be given. 6. Based on the above averments, permanent injunction was sought against the defendants from interfering in the plaintiff's possession and by way of mandatory injunction, it was sought that key may be directed to be returned. 7. Along with the suit, an application under Order 39, Rule 1 & 2 CPC was filed seeking temporary injunction regarding the opening of the shop and handing over possession to the petitioner. 8. 7. Along with the suit, an application under Order 39, Rule 1 & 2 CPC was filed seeking temporary injunction regarding the opening of the shop and handing over possession to the petitioner. 8. During the pendency of the application, the petitioner filed an application under Order 39, Rule 7 CPC seeking appointment of Commissioner with the averments that as the key of the shop in question is with the defendant No.3, who is in collusion with the defendants No.1 & 2, the defendants can misappropriate the disputed shop and the goods lying therein may be removed and therefore, the Commissioner be appointed for finding out the specific status of the subject matter of the suit. It was prayed that the key of the shop be obtained from the defendant No.3 or the lock be broken open and the status of the disputed shop and goods lying therein be got examined by the Commissioner along with the photographs. 9. The application was opposed by the defendants No.1 & 2. It was submitted that the plaintiff has failed to produce the list of goods lying in the shop or bills and was seeking to create evidence, for which Commissioner cannot be appointed and the lock of the shop in question cannot be broken open in absence of the owner of the shop Smt. Ichraj Kanwar, who is not a party to the suit. 10. The trial court, after hearing the parties, came to the conclusion that whether the disputed shop has been given on rent to the petitioner or not is a matter of evidence and it is well settled that the Commissioner cannot be appointed for collecting evidence and suit has to be proved by the parties by leading documentary or oral evidence and consequently dismissed the application. 11. It is submitted by learned counsel for the petitioner that the fact that the shop in question was in tenancy of the petitioner is not in dispute. 11. It is submitted by learned counsel for the petitioner that the fact that the shop in question was in tenancy of the petitioner is not in dispute. From a bare look at the FIR lodged by the defendants No.1 & 2 (Annex.3), wherein defendant No.2, who is son of Smt. Ichraj Kanwar has lodged the FIR with the allegation that the shop was let out to Dilip Kumar S/o Shri Shankar Lal for a period of two years and that the shop was not vacated at the end of two years; on 26.3.2016, the munim of the shop gave the keys of the shop to them and said that the owner would be coming and at about 9:00 O' clock in the evening Dilip Kumar and his brother Narayan (plaintiff) along with 5-7 persons entered in their house unauthorisedly and tried to attack them. 12. It was submitted that the entire basis of the trial court order that whether the shop in question was let out to the petitioner is subject matter of the suit is, therefore, wholly baseless. It is further submitted that the shop in question was being used by the plaintiff and locks were put and key given to the defendants is also not in dispute and therefore, there was no reason for the trial court to reject the application so that the status of the shop and the goods lying therein would come on record of the trial court, which was necessary in the circumstances of the case and therefore, the order impugned deserves to be quashed and set-aside. 13. Learned counsel for the respondents submitted that the plaintiff has not impleaded Smt. Ichraj Kanwar as party to the suit, who is the owner of the shop and therefore, the suit itself is not maintainable. 14. It was submitted that the respondents lodged the FIR without being aware of the factual matrix and therefore, the averments made in the FIR cannot be used against the respondents. Further the submissions made by the petitioners were denied and it was reiterated that the provision of Order 39, Rule 7 CPC cannot be utilised for the purpose of collection of evidence and therefore, the writ petition deserves to be dismissed. 15. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 16. 15. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 16. From the documents available on record, it is apparent that the petitioner lodged an FIR on 28.3.2016 making specific allegations regarding the shop in question and that the defendant - Surendra Singh along with Bablu Singh and Jitendra Singh along with certain other persons entered the shop and turned out the munim and put their locks and that goods worth lacs of rupees and cash etc. were lying in the shop. Immediately, thereafter, the FIR was lodged by the respondent-Surendra Singh, as noticed earlier, regarding handing over of the key of the shop by the munim to the defendants. Thereafter, the present suit seeking permanent and mandatory injunction has been filed by the petitioner. 17. From the sequence of events as noticed and the FIR, which has been lodged by Surendra Singh, who is son of Smt. Ichraj Kanwar, who is claimed to be the owner of the shop in question, it is apparent that the petitioner was in possession of the shop and munim-Nema Ram was either turned out of the shop or said Nema Ram after closing the shop gave the keys of the shop to the defendants, regarding which, now the petitioner was claimed temporary injunction. 18. For the purpose of determination of the issues involved in deciding the application under Order 39, Rule 1 & 2 CPC, the fact as to whether the shop was being used by the petitioner - plaintiff for selling motor spare parts and whether the goods as claimed were lying therein along with cash and other documents, it was incumbent that the said aspect came on the record of the trial court before deciding the application under Order 39, Rule 1 & 2 CPC and the denial of the trial court on the grounds indicated in the order cannot be sustained. 19. The plea raised by the respondents in the present writ petition are totally baseless. The respondents herein i.e. Kalyan Singh Jodha and Surendra Singh are both husband and son respectively of Smt. Ichraj Kanwar and therefore, so far as filing of the suit for injunction is concerned as the allegations have been made against them, presence of Smt. Inchraj Kanwar is wholly unnecessary. 20. The respondents herein i.e. Kalyan Singh Jodha and Surendra Singh are both husband and son respectively of Smt. Ichraj Kanwar and therefore, so far as filing of the suit for injunction is concerned as the allegations have been made against them, presence of Smt. Inchraj Kanwar is wholly unnecessary. 20. Further, the manner in which, the respondents have filed reply to the present writ petition and are seeking to disown lodging of the FIR/contents whereof clearly smacks of malafide on their part and on that count also, it becomes utmost necessary that the Commissioner is appointed by the trial court for doing the needful. 21. So far as the submissions regarding appointment of Commissioner for collection of evidence is concerned, in every case it cannot be said that whenever the Commissioner is appointed, the same would result in collection of evidence as alleged/sought to be contended by the respondents. 22. In view of the above discussions, the writ petition filed by the petitioner is allowed. The impugned order dated 12.4.2016 passed by the trial court is quashed and set-aside. The application filed by the petitioner under Order 39, Rule 7 CPC is allowed, the trial court is directed to immediately appoint appropriate independent Commissioner for doing the needful in terms of the prayer made by the petitioner in the application.