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2017 DIGILAW 716 (JK)

Mohd. Nasir Laherwal v. Saddat Mand Durani

2017-08-22

MOHAMMAD YAQOOB MIR

body2017
JUDGMENT : Mohammad Yaqoob Mir, J. 1. Review of the order dated 04.03.2015 passed in CIMA No. 96/2011 is sought. 2. Civil Original Suit titled Saddat Mand Durani vs. Mohammad Nasir Laherwal filed in the court of learned 1st Additional District Judge, Srinagar, wherein prayer had been made for grant of mandatory injunction so as to command defendant (Mohammad Nasir Laherwal) to hand-over the actual physical possession of the suit premises, with further prayer that a decree for recovery of Rs. 60,000/- as arrears of mesne profits alongwith interest at prevalent bank rates as well as further manse profits at Rs. 10,000/- per month till handing over of possession be also issued. 3. Respondent (plaintiff) owns a shop measuring 16'-0" x 36'-0" with toilet 5' x 6' in the ground floor situated in-front of his residential house at Sanat Nagar, Srinagar. Same was licensed in favour of the defendant on verbal understanding on 01.03.2007. Parties agreed that the suit premises will be held by the defendant therein for a period of one year at monthly fee of Rs. 6000/- extendable at the sole option and prerogative of the plaintiff. In the written statement as was filed by the defendant it was pleaded that the suit premises was given to him on yearly lease basis but the lease deed was not executed. The rent was agreed to be Rs. 6000/- per month in the first year with increase by 5% after expiry of first year of lease. 4. Defendant also laid counter claim praying for issuance of decree for an amount of Rs. 4.00 lacs calculable from May, 2008 to April, 2009 with the further prayer to restore the water and electricity supply to the suit premises. 5. On 07.05.2011 trial court framed issues. 6. Learned appellate court vide judgment under review has set aside the order passed by the trial court but at the same time has opined that the interests of the parties are required to be protected during the trial of the suit, disposed of the application which was filed by the defendant before the trial court. Para 14 of the judgment dated 04.03.2015 in this behalf is relevant to be quoted:- "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. Para 14 of the judgment dated 04.03.2015 in this behalf is relevant to be quoted:- "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. (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." 7. Learned counsel for the petitioner (defendant) would submit that the arrangement as made by the learned appellate court is unwarranted as the same is not consistent with what was pleaded in the application. 8. Considered, the argument is misplaced. 9. The application as was preferred by the defendant for interim relief was to the effect that the plaintiff shall be restrained from running his business in the suit premises and further to restore water and electricity supply to the suit premises till disposal of the suit. 10. The objections filed by the plaintiff to the said application suggest that the plaintiff had taken the plea that the suit premises was licensed in favour of the defendant on verbal understanding. The license period was extended with certain conditions. In addition all factual pleas have been taken which include payment of occupational charges with 5% increase per year, therefore, learned appellant court while considering the rival pleadings i.e. the application filed by the defendant and the objections filed by the plaintiff, passed the order dated 06.05.2010 and dismissed the application of the defendant. Aggrieved thereof defendant filed an Appeal, which was disposed of vide order dated 04.03.2015, no error is apparent. 11. Learned counsel for the petitioner emphatically tried to project that the arrangement made in pursuance to the order dated 04.03.2015 is perverse. Aggrieved thereof defendant filed an Appeal, which was disposed of vide order dated 04.03.2015, no error is apparent. 11. Learned counsel for the petitioner emphatically tried to project that the arrangement made in pursuance to the order dated 04.03.2015 is perverse. Supporting his submission has placed reliance on the judgment reported in AIR 1964 SC 11 by stating that the arrangement made amounts to prejudging the case but the argument is misplaced because the arrangement is only an arrangement to remain in force during the trial of the suit. 12. The rights of the parties have been protected as is implicit in Clause "C" of the arrangement as quoted hereinabove providing for adjudication of the rights of the parties strictly in accordance with law by the trial court with the clear stipulation that the arrangement is purely temporary and will not confer any benefit on either of the parties. 13. Again learned counsel tried to project that the judgment is erroneous but on meticulous look of the records the order is found in consonance with the pleadings i.e. what have been pleaded in the application filed by the defendant and the objections to the said application, therefore, reliance placed on the judgment reported in AIR 1964 SC 1372 is misplaced. 14. Scope of the review is well defined. Rule 65 of the High Court Rules read with Order 47 of the Code of Civil Procedure clearly envisages as on what grounds review is permissible. There cannot be a straitjacket formula to be applied. Every case has its own features. 15. The main thrust of learned counsel for the petitioner was that the arrangement made in pursuance to the judgment under review has negative impact on the rights of the defendant but such type of apprehension is totally imaginary because the order is self-speaking. 16. No ground, whatsoever, in the background of the facts and law, is forthcoming which would warrant indulgence by having recourse to the provisions of the review. It appears that the sole aim of the defendant (petitioner herein) is to protract the suit proceedings indefinitely. From time to time recourse to various measures by filing application over application, trial of the suit has been protracted. Suit has been instituted in the year 2009. Eight years time have elapsed, the trial still has not been concluded. 17. The review petition being without any merit is dismissed. 18. From time to time recourse to various measures by filing application over application, trial of the suit has been protracted. Suit has been instituted in the year 2009. Eight years time have elapsed, the trial still has not been concluded. 17. The review petition being without any merit is dismissed. 18. Record alongwith the copy of the order be sent to the trial court forthwith where the parties shall appear on 28th August 2017. Trial court is expected to expedite the trial of the suit with promptitude. 19. Review petition disposed of as above.