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2019 DIGILAW 1451 (HP)

Brahmin Sabha v. Asha Tandon

2019-09-26

AJAY MOHAN GOEL

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JUDGMENT : Ajay Mohan Goel, J. By way of this petition filed under Article 227 of the Constitution of India, petitioner/defendant has challenged the order passed by the Court of learned District Judge, Shimla, in CMA No. 20-S/14 of 2018, titled as Miss Asha Tandon vs. Brahmin Sabha, dated 24.09.2018, vide which, appeal filed by the present respondent/plaintiff under order 43, Rule 1 of the Code of Civil Procedure (hereinafter referred to as the 'Code' for short) was allowed, which appeal was directed against order dated 05.06.2018, passed by learned Civil Judge, Court No.5, Shimla, H.P. in CMA No.139/6 of 2017, filed in Civil Suit No. 133-1 of 2017 titled as Asha Tandon vs. Brahmin Sabha, vide which, learned trial Court dismissed the application filed by the plaintiff under Order 39, Rules 1 and 2 of the Code for grant of interim relief. 2. Brief facts necessary for the adjudication of the present petition are that respondent herein/plaintiff has filed a suit for declaration before the learned Trial Court against the present petitioner that Order passed by the learned Rent Controller, Court No. 6, Shimla, in Rent Case No. 57/2 of 2010/2006, instituted on 13.10.2006 and decided on 30.11.2011, titled as Brahmin Sabha vs. Miss Shiv Kanta, and judgment passed in Rent Appeal RBT No. 1-S/13(b) of 2015/12, by the learned Appellate Court, are illegal, null and void, inoperative and not binding upon the plaintiff, who had inherited the tenancy rights of her father late Shri Ram Chand Tandon, qua shop No. 83/1, Galli No. 13, Lower Bazaar, Shimla, with consequential relief that the defendant be restrained from forcibly evicting the plaintiff from the shop in question. 3. The case of the plaintiff before the learned Courts below was that late Shri Ram Chand Tandon was the original tenant of the demised premises, who died on 06.06.1998 and after his death, tenancy qua the shop in issue was inherited by his three daughters, including her, under general law of succession. 4. Defendant/Land owner had filed an eviction petition against Ms. Shiv Kanta, one of the sisters of the plaintiff, which was allowed on 30.12.2011 by the learned Rent Controller and appeal filed against which was dismissed by the learned Appellate Court on 30.04.2016. 4. Defendant/Land owner had filed an eviction petition against Ms. Shiv Kanta, one of the sisters of the plaintiff, which was allowed on 30.12.2011 by the learned Rent Controller and appeal filed against which was dismissed by the learned Appellate Court on 30.04.2016. Plaintiff had filed a revision petition, i.e. Civil Revision No. 129 of 2016 before this Court, which was withdrawn by her Counsel for the reasons best known to the Counsel. According to the plaintiff, as the eviction proceedings were initiated by the land owners without impleading all the legal heirs of late Shri Ram Chand Tandon, order passed by learned Rent Controller as also affirmation of the said order in appeal by the learned Appellate Court, was illegal, null and void and not binding upon the plaintiff. 5. By way of written statement, the claim of the plaintiff has been refuted by the defendant. As per the defendant, the filing of the suit was nothing but abuse of process of law and a tool to circumvent the order of eviction passed by learned Rent Controller as affirmed by learned Appellate Court. Defendant has denied that plaintiff is in possession of the demised premises. 6. Alongwith the suit, plaintiff filed an application under Order 39, Rules 1 and 2 of the Code in which it was prayed that an ad interim injunction be passed in favour of the plaintiff restraining the defendant for forcibly evicting her from the shop during the pendency of the suit. The application is appended with the present petition as Annexure P-3. Response to the same filed by the defendant is on record as Annexure P-4, in which while denying the averments made in the application, it was mentioned that no ground was made by the applicant/plaintiff for grant of interim relief. 7. Said application was dismissed by the learned Trial Court vide order dated 5.6.2018, Annexure P-5. Learned Trial Court for the purpose of adjudication of the said application, framed the following point for determination: "Whether the applicant is entitled to restrain the respondent from dispossessing the applicant from the suit property under the provisions of Order 39, Rules 1 and 2, as alleged?" 8. Learned Trial Court for the purpose of adjudication of the said application, framed the following point for determination: "Whether the applicant is entitled to restrain the respondent from dispossessing the applicant from the suit property under the provisions of Order 39, Rules 1 and 2, as alleged?" 8. While answering the same against the plaintiff, learned Trial Court held that plaintiff was seeking relief of ad interim injunction alleging that she was not impleaded as a party in the eviction petition by the defendant which was decided on 13.10.2006, though, she was one of the legal representatives of the original tenant, namely, Shri Ram Chand Tandon and therefore was entitled to inherit the tenancy of shop in issue. Learned Trial Court also took note of the fact that it was averred by the plaintiff that she was in possession of the demised premises and she was running her business in the alleged shop. It also took note of the stand of the defendant before it that legal representatives of the original tenant, i.e. the plaintiff alongwith Miss Santosh and four sons of deceased original tenant, had surrendered their tenancy rights in favour of Shiv Kanta and in this view of the matter, remaining legal representatives had no right over the shop in question. Learned Trial Court also took note of the fact that as per record of maintenance under H.P. Shop and Commercial Establishments Act, 1969, Smt. Shiv Kanta and her husband were recorded as owners of Shop No. 83, Galli No. 13, Lower Bazaar, Shimla. 9. Learned Trial Court held that at the stage of consideration of the application for grant of interim relief, the applicant had to demonstrate that she was in possession over the suit land which she had failed to prove, and therefore, as there was no prima facie case in her favour, it could not be said that she had proved that balance of convenience was in her favour or irreparable loss would be caused to her in case application for interim relief is not allowed. On these bases, learned Trial Court dismissed the application filed by the plaintiff. 10. In appeal, vide impugned order, learned Appellate Court has set aside the order passed by the learned Trial Court. On these bases, learned Trial Court dismissed the application filed by the plaintiff. 10. In appeal, vide impugned order, learned Appellate Court has set aside the order passed by the learned Trial Court. While allowing the appeal and the application filed by the plaintiff under Order 39, Rules 1 and 2 of the Code, learned Appellate Court held that the term "prima facie case" was nowhere defined in the Civil Procedure Code and a case which required mature consideration of the Court and which could not be thrown away at the threshold of the litigation could be said to be a prima facie case. Learned Appellate Court thereafter went on to hold that as the order/judgments under challenge were orders/judgments in personam and plaintiff had claimed that she was in possession of the shop in question, therefore, balance of convenience was in favour of the plaintiff, as one in possession could not be forcibly evicted, except in due process of law. On these bases, learned Appellate Court held that in case the possession of the plaintiff was not protected during the pendency of the suit, then the subject matter of the lis could not be protected. It went on to hold that at the time of deciding of application under Order 39, Rules 1 and 2, the Court should avoid holding of a mini trial and on these bases, it set aside the order passed by the learned Trial Court and granted the following relief in favour of the plaintiff:- "In view of the discussion made above while deciding point No. 1, the appeal is allowed by setting aside the order dated 05.06.2018 and thus, the application under Order 39 Rules 1 and 2 of the CPC is ordered to e allowed by restraining the defendant from forcibly evicting the plaintiff from the shop in question as well as on the basis of the impugned eviction order dated 30.12.2011, during the pendency of the trial." 11. This order stands challenged by the land owner/ defendant/petitioner before this Court. 12. I have heard learned Counsel for the parties and gone through the impugned order as well as other documents appended with the petition. 13. This order stands challenged by the land owner/ defendant/petitioner before this Court. 12. I have heard learned Counsel for the parties and gone through the impugned order as well as other documents appended with the petition. 13. It is settled law that in order to succeed in an application filed under Order 39, Rules 1 and 2 of the Code of Civil Procedure, a party has to satisfy three ingredients: (a) prima facie case, (b) balance of convenience; and (c) irreparable loss and injury. Learned Appellate Court has held that in a case, wherein the Court comes to the conclusion that the same need not be thrown out at the threshold of the litigation itself, it is to be assumed that a prima facie case exists. In my considered view, the reasoning which has been given by the learned Appellate Court in the impugned order, defining as to what is a prima facie case, is not sustainable in the eyes of law. If the reasoning so given by learned Appellate Court is accepted, then probably the Trial Courts shall have no option but to grant interim relief in each and every case which is not hit either by Order 7, Rule 10 or Order 7, Rule 11 of the Civil Procedure Code. This is not how 'prima facie case' is to be deciphered by a Court when an application is filed before it for grant of interim relief. The three ingredients which have to be taken into consideration by a Court while granting interim relief, i.e. prima facie case, balance of convenience and irreparable loss, have to be proved by a party seeking interim relief and prima facie case cannot be defined to be a case which the Trial Court does not dismisses at the threshold. Therefore, the definition/explanation of a prima facie case, as has been given by learned Appellate Court, is not sustainable in law and is quashed and set aside. 14. Learned Appellate Court has further held that as the order passed by the learned Rent Controller and the judgment in appeal affirming the order of the Rent Controller, were judgments in personam, therefore, it was necessary to protect the possession of the plaintiff because a person in possession of a property could not be evicted, except by following due process of law. By returning these findings, material irregularity which the learned Appellate Court has committed is this that it has returned a finding that the plaintiff was in possession of the suit property without there being any prima facie material on record to substantiate the same. In fact, a perusal of the order passed by the learned Trial Court demonstrates that interim relief was refused by the learned Trial Court by returning a finding that plaintiff has failed to prove that she was in possession of the demises premises. Surprisingly, learned Appellate Court has not expressly set aside these findings of Trial Court by returning cogent findings based on some evidence that the plaintiff was in the possession of the demised premises. It has taken the averments made by the plaintiff to be as gospel's truth, which, in my considered view, could not have been done so. 15. As far as the findings returned by learned Appellate Court with regard to the eviction of a person in accordance with law, is concerned, it is settled law that even a trespasser cannot be thrown out, except by following the process of law. There is nothing on record to demonstrate that there is any threat which has been made out by the petitioner herein purportedly to evict the respondent herein, i.e. plaintiff from the demised premises forcibly. In view of the fact that there is an order of eviction passed in favour of the petitioner by learned Rent Controller which has been affirmed by the learned Appellate Court in rent appeal, all that the land owner can do is to have this order enforced, in accordance with law and enforcement of this order cannot be termed to be taking steps in defiance of law. 16. Another material point, which has been ignored by the learned Appellate Court while setting aside the order passed by the learned Trial Court is that order passed by learned Rent Controller which was confirmed by leaned Appellate Court was indeed challenged by the respondent herein before this Court by way of a revision petition. Now, the reason as to why the revision petition was not argued on merit is in the realm of speculation on which this Court cannot ponder upon. Now, the reason as to why the revision petition was not argued on merit is in the realm of speculation on which this Court cannot ponder upon. However, the fact of the matter remains that because the revision petition was preferred by the respondent/plaintiff, which was later on dismissed as withdrawn, this means that the orders which were passed by the learned Rent Controller as also learned Appellate Court have attained finality. In view of discussion held herein above, as this Court is of the view that the order passed by the learned Appellate Court is not sustainable in the eyes of law, impugned order 24.09.2018. passed by learned District Judge, Shimla, in CMA No.20-S/14 of 2018, titled as Miss Asha Tandon vs. Bhahmin Sabha, is quashed and set aside. Pending miscellaneous applications, if any, also stand disposed of.