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Himachal Pradesh High Court · body

2018 DIGILAW 1835 (HP)

Duni Chand v. Budhi Prakash

2018-10-23

SANDEEP SHARMA

body2018
JUDGMENT : SANDEEP SHARMA, J. 1. Present petition under Article 227 of the Constitution of India, is directed against the judgment dated 8.5.2017 passed by the learned District Judge, Kullu, District Kullu, H.P. in Civil Misc. Appeal No. 04/2017 affirming the order dated 17.12.2016 passed by the learned Civil Judge (Junior Division), Manali, District Kullu, Himachal Pradesh in CMA No. 99-vi/2016(Civil Suit No. 96/2016) titled as Duni Chand & another Versus Budhi Prakash and another, whereby application having been filed by the petitioner-plaintiff (hereinafter, ‘plaintiff’) under Order 39 Rules 1 and 2 CPC, for grant of interim injunction came to be dismissed. 2. For having a bird’s eye view, the facts as emerge from the record are that the plaintiff filed a suit simpliciter for injunction restraining the respondent from dispossessing them forcibly from the Hotel in question, averring therein that the respondents are owners of the hotel “Morning Star”, located at Village Simsa, Tehsil Manali, District Kullu, Himachal Pradesh. Plaintiff further averred that the hotel in question was leased out by the respondents in favour of the plaintiff for a period of three years with effect from 1.4.2016 to 31.3.2019 vide lease deed dated 7.1.2016. Possession of the hotel was delivered to the plaintiff immediately after execution of aforesaid lease deed. Plaintiff further averred that they paid lease amount to the respondents on yearly basis but despite that respondents were causing interference as well as dispossessing them from the aforesaid hotel during the pendency of the lease deed. Alongwith aforesaid suit, plaintiff also filed an application under Order 39 Rules 1 and 2 CPC, praying therein for grant of interim injunction restraining the respondents from dispossessing the plaintiff from the hotel during the pendency of the suit. 3. Aforesaid suit and application came to be resisted by the respondents by way of filing written statement to the suit and reply to the application. While admitting the factum with regard to leasing out of the hotel in question to the plaintiff on yearly basis, respondents claimed before the court below that yearly amount was settled at Rs.23.50 Lakh, and during peak tourist season with effect from 1.4.2016 to 15.7.2016, plaintiff had run the hotel. While admitting the factum with regard to leasing out of the hotel in question to the plaintiff on yearly basis, respondents claimed before the court below that yearly amount was settled at Rs.23.50 Lakh, and during peak tourist season with effect from 1.4.2016 to 15.7.2016, plaintiff had run the hotel. Respondents further averred before the learned Court below that the plaintiff violated terms and conditions of the lease deed and committed fault in making payment to the respondents, as per agreed schedule and as such they were liable to be evicted from the premises during the subsistence of the lease deed. Respondents further claimed that the plaintiff failed to pay electricity, water, garbage bills and luxury tax of the hotel, as a consequence of which, authorities concerned, initiated proceedings for disconnection of electricity and water connections on account of non-payment of dues. Respondents, further claimed that the plaintiff(s) had issued two cheques bearing No. 577970 dated 15.5.2016 amounting to Rs.5,00,000 and No. 577871 dated 10.6.2016 amounting to Rs.8.50 Lakh in favour of respondents towards discharge of aforesaid liability but both these cheques were dishonoured on account of insufficient funds in the account of plaintiff. Respondents specifically denied the allegations with regard to forcible dispossession of the plaintiff and claimed that plaintiffs themselves had abandoned the hotel. 4. Learned trial Court, on the basis of aforesaid pleadings as well as documentary evidence adduced on record by respective parties, dismissed the application under Order 39 Rules 1 and 2 CPC, filed by the plaintiffs, vide order dated 17.12.2016. Being aggrieved by order dated 17.12.2016 passed by learned trial Court, plaintiff preferred an appeal under Order 43 Rule 1 CPC, before the learned District Judge, Kullu, who, vide judgment dated 8.5.2017, dismissed the appeal, as a consequence of which, order dated 17.12.2016 passed by the learned trial Court came to be upheld. In the aforesaid background, plaintiff has approached this court in the instant proceedings, praying therein to allow the application filed under Order 39 Rules 1 and 2 CPC, after setting aside order and judgment passed by the learned Courts below. 5. I have heard the learned counsel for the parties and gone through the record carefully. 6. In the aforesaid background, plaintiff has approached this court in the instant proceedings, praying therein to allow the application filed under Order 39 Rules 1 and 2 CPC, after setting aside order and judgment passed by the learned Courts below. 5. I have heard the learned counsel for the parties and gone through the record carefully. 6. Having carefully perused the material available on record vis-à-vis impugned judgment passed by learned District Judge, Kullu, this court is not persuaded to agree with the contention of the learned counsel representing the plaintiff that the learned Courts below have failed to appreciate the pleadings as well as documentary evidence adduced on record by respective parties, in right perspective, rather, this court is of the view that the learned Courts below have dealt with each and every aspect of the matter meticulously. Careful perusal of the record reveals that as per agreed terms, plaintiff was bound to deposit a sum of Rs.10.00 Lakh on or before 15.5.2016, whereas, balance amount of Rs.8,50,000/- was to be paid in the first week of June, 2016, but, as has been taken note above, two cheques issued by plaintiff for discharge of aforesaid liability were dishonoured. Careful perusal of the lease agreement clearly suggests that in the event of lessee failing in making payment within stipulated period, lessor is/was well within his right to take back the possession and lease is/was bound to be cancelled automatically. Careful perusal of order/judgment having been passed by learned Courts below clearly reveals that the plaintiff failed to place on record any document suggestive of the fact that they had actually made payment towards electricity and water charges. It appears that during the pendency of the appeal before the learned District Judge, plaintiff made an endeavour to place on record copies of certain documents, but those were rightly not taken into consideration because same were not sought to be placed on record by way of a proper application. 7. Leaving everything aside, once it stands duly proved on record that plaintiff failed to make payment as per agreed schedule, they have been rightly held not entitled for discretionary relief, especially when it stands specifically provided in the terms and conditions of lease deed that in the event of non-payment of lease amount, as per agreed terms, lease shall stand terminated automatically. 8. 8. Consequently, in view of the detailed discussion made herein above, this court finds no illegality or infirmity in the judgment passed by learned District Judge, Kullu, which deserves to be upheld. Petition is dismissed being devoid of any merit. Pending applications, if any, are disposed of. Interim directions, if any, are vacated.