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2023 DIGILAW 183 (HP)

Dhian Singh v. Surinder Kumar

2023-03-27

JYOTSNA REWAL DUA

body2023
JUDGMENT : JYOTSNA REWAL DUA, J. 1. This petition instituted under Article 227 of the Constitution of India assails two separate orders passed by the learned trial Court on 12.01.2023. By one order, an application under Order 1 Rule 10 read with Section 151 of the Code of Civil Procedure (in short CPC) moved by respondent No. 2 for his impleadment as defendant No. 2 in the civil suit was allowed. By the other order of even date, an application moved by the petitioner/plaintiff seeking police assistance for implementing interim order dated 07.06.2022 passed in his earlier application moved under Order 39 Rules 1 and 2 CPC was dismissed. 2. The germane facts may be noticed hereinafter: (i) On 04.06.2022, petitioner instituted a civil suit seeking decree of permanent prohibitory injunction to restrain defendant No. 1 from interfering or ousting him from handling the English Beer and Wine Shop L-14 Unit No. 58A, situated at Villages Rakkar and Bhranta Buhla, Tehsil Rakkar, District Kangra, H.P. One Surinder Kumar-present respondent No. 1 was the sole defendant in the civil suit. The plaintiff pleaded that Surinder Kumar-defendant No. 1 was contractor of English Beer and Wine Shop, but did not have sufficient funds. He approached the plaintiff for running the business in partnership. The plaintiff accepted the defendant’s proposal. Both entered into partnership on 24.03.2022. As per the terms and conditions of the partnership deed, plaintiff was responsible for the investment of total amount in the business. He was also given the right to include other investors/partners, if he wished to do so. In terms of the partnership deed, the profits of the business were to be shared by both the parties, but the loss in the business was to be borne solely by the plaintiff. The tenure of the partnership deed was from 01.04.2022 to 31.03.2023. Further case of the plaintiff was that he had invested more than Rs. 35,00,000/- (Thirty five lacs) in running of the business. He had also deposited/pledged F.D. worth Rs. 4.54 Lacs (Four lacs 54 thousand) in the Excise and Taxation Department, had also paid advance rental for the shops. The grievance of the plaintiff was that on 01.06.2022 and 03.06.2022, the defendant (Surinder Kumar) had refused to admit plaintiff’s claim. He forcibly entered the premises with 15 persons who were his agents from Punjab. 4.54 Lacs (Four lacs 54 thousand) in the Excise and Taxation Department, had also paid advance rental for the shops. The grievance of the plaintiff was that on 01.06.2022 and 03.06.2022, the defendant (Surinder Kumar) had refused to admit plaintiff’s claim. He forcibly entered the premises with 15 persons who were his agents from Punjab. They beat the plaintiff, ousted him from the business and premises and forcibly entered the shops at Rakkar. (ii) Alongwith the plaint, an application under Order 39 Rules 1 and 2 CPC was moved praying for grant of ad interim injunction to restrain the defendant from interfering or ousting the plaintiff from the premises/business in question. The application came up for consideration before the learned trial Court. Notice was issued to the defendant for 07.06.2022. In its interim order passed on 07.06.2022, learned trial Court took into consideration the partnership deed dated 24.03.2022 executed between the plaintiff and defendant, the subsistence of the partnership deed till 31.03.2023, the pleadings made in the application and held that the plaintiff will suffer irreparable loss in case the defendant was not restrained from dispossessing the plaintiff from partnership business. Accordingly, defendant Surinder Kumar was restrained from ousting the plaintiff from the shop in the name and style of English Beer and Wine Shops L-14 Unit No. 58A at Rakkar. (iii) The documents on record reflect that application under Order 39 Rules 1 and 2 CPC was repeatedly listed on several dates after passing of interim injunction order dated 07.06.2022. The reply to the said application, however, was not filed and time was extended to enable the defendant to file his reply. The last order dated 12.01.2023 on record of the case reflects that even till that date, reply to the application under Order 39 Rules 1 and 2 CPC on behalf of defendant Surinder Kumar had not been filed. Further time to file reply was granted to the defendant. The matter was ordered to be listed on 27.03.2023 and the interim order dated 07.06.2022 was extended till the next date. Learned counsel appearing for the respondent/defendant, however, has a different version to project. According to the learned counsel for the respondent, reply to the plaintiff’s application under Order 39 Rules 1 and 2 CPC had been filed in June, 2022. He further submits that plaintiff had also filed rejoinder to their reply on 25.06.2022. Learned counsel appearing for the respondent/defendant, however, has a different version to project. According to the learned counsel for the respondent, reply to the plaintiff’s application under Order 39 Rules 1 and 2 CPC had been filed in June, 2022. He further submits that plaintiff had also filed rejoinder to their reply on 25.06.2022. (iv) The plaintiff immediately after passing of ad-interim order dated 07.06.2022 moved an application under Section 151 CPC for providing him police assistance to implement the restraint order. The plaintiff pleaded that the defendant had forcibly ousted him from shop in question. He was not being allowed to enter the shop despite the order dated 07.06.2022. As a consequence, he was suffering irreparable loss to the tune of Rs. 50,000/- daily. The defendant filed reply to this application on 17.06.2022. The defence was that plaintiff had not been running the shop. The shop was being run by one Sanjeev Kumar. That defendant Surinder Kumar had entered into a partnership with said Sanjeev Kumar. He placed on record the copy of partnership deed executed between him and Sanjeev Kumar. The defendant denied forcibly ousting the plaintiff from the liquor shop. His plea, however, was that plaintiff was not in possession of the shop which was being run by defendant in partnership with Sanjeev Kumar, who had invested good amount in the business. (v) Meanwhile, said Sanjeev Kumar also moved an application under Order 1 Rule 10 read with Section 151 CPC for allowing him to be impleaded as defendant No. 2 in the suit. The claim was made on the strength of his being partner in the business of dealing in retail of liquor shop with the plaintiff and that he had already invested huge amount in the business. He projected that his rights were also involved in the litigation. In view of his being partner, he was required to be impleaded as defendant in the suit. Plaintiff in his reply to the impleadment application refuted Sanjeev Kumar’s claim of being necessary party but did not deny involvement of his rights in the litigation. (vi) Vide separate orders passed on 12.01.2023, learned trial Court allowed the application moved by aforesaid Sanjeev Kumar and impleaded him as defendant No. 2. Plaintiff in his reply to the impleadment application refuted Sanjeev Kumar’s claim of being necessary party but did not deny involvement of his rights in the litigation. (vi) Vide separate orders passed on 12.01.2023, learned trial Court allowed the application moved by aforesaid Sanjeev Kumar and impleaded him as defendant No. 2. The application moved by the petitioner-plaintiff seeking police assistance for implementing the injunction order dated 07.06.2022 was dismissed on the ground that plaintiff had not been running the liquor shop in question after 01.06.2022. (vii) In the aforesaid factual background, the plaintiff has assailed the aforesaid two orders passed by the learned trial Court. 3. Submissions Learned Senior Counsel for the petitioner-plaintiff argued that the plaintiff had executed partnership deed with defendant Surinder Kumar on 24.03.2022. The partnership deed was to remain in force till 31.03.2023. In terms of this partnership deed, the plaintiff had the right to induct any other business partner. Exercising this right, the plaintiff had executed a further partnership deed with Sanjeev Kumar. However, later on Sanjeev Kumar with a view to cause irreparable loss and injury to the plaintiff executed a partnership deed on 31.05.2022 with Surinder Kumar. This partnership deed could not have prejudiced the rights of the plaintiff in running the business in question which were flowing from partnership deed dated 24.03.2022. It was for this reason that the learned trial Court on 07.06.2022 had restrained defendant Surinder Kumar from ousting the plaintiff from the shop in question. During hearing of the case, not much arguments were advanced on behalf of petitioner for challenging the impleadment of Sanjeev Kumar. Learned counsel for the defendants contended that the plaintiff had already been ousted from the shop in question prior to the institution of civil suit by him. This fact had been mentioned by the plaintiff in his plaint, though the same was omitted from the pleadings of application moved by the plaintiff under Order 39 Rules 1 and 2 CPC. Learned counsel for the defendant-respondent also submitted that in order to ascertain as to who was running the shop in question, the learned trial Court had called for status report from the concerned Station House Officer (SHO). The SHO submitted his report according to which the liquor shops in question were being run by defendant Surinder Kumar alongwith Sanjeev Kumar (impleaded as defendant No. 2). The SHO submitted his report according to which the liquor shops in question were being run by defendant Surinder Kumar alongwith Sanjeev Kumar (impleaded as defendant No. 2). Once the possession of the disputed shops was not with the plaintiff, there arose no question for implementation of the ad-interim order dated 07.06.2022. Learned counsel for the respondent thus defended the impugned orders passed by the learned trial Court. 4. Observations Having heard learned counsel on both sides and on careful considering the record made available in the case file, I am of the considered view that no case for interference with the impugned orders is made out. This is for the following reasons: (i) The plaintiff in his plaint had himself pleaded that he had been ousted from the disputed premises. It will be appropriate to extract the relevant para from the plaint: “10. That the cause of action accrued to the plaintiff on 01.06.2022, and finally yesterday when defendant flatly refused to admit the claim of plaintiff and forcibly entered at evening time with fifteen persons who are the agents of the defendant from Punjab have ousted and beaten the plaintiff and forcibly entered into shops at Rakkar P.O. and Tehsil Rakkar, District Kangra, H.P. within the jurisdiction of this Hon’ble Court.” The record shows that plaint was instituted on 04.06.2022. Plaintiff’s own pleaded admission is that defendant Surinder Kumar had refused to admit his claim on 01.06.2022 and on 03.06.2022 had forcibly ousted him from the business and premises with the help of his agents. Plaintiff was not running the business in question on the date of institution of suit and also on the date of passing of ad-interim order. (ii) In his application moved under Order 39 Rules 1 and 2 CPC, the plaintiff omitted to mention that he had already been ousted from the premises. The entire stress in the application was that plaintiff was partner having executed partnership deed with defendant Surinder Kumar and thus had a right to continue to run the business of liquor shops. It was on the strength of the averments made in the application under Order 39 Rules 1 and 2 CPC that the learned trial Court passed the injunction order on 07.06.2022 restraining the defendant Surinder Kumar from ousting the plaintiff from the shop in question i.e. English Beer and Wine Shops L-14 Unit No. 58A. It was on the strength of the averments made in the application under Order 39 Rules 1 and 2 CPC that the learned trial Court passed the injunction order on 07.06.2022 restraining the defendant Surinder Kumar from ousting the plaintiff from the shop in question i.e. English Beer and Wine Shops L-14 Unit No. 58A. (iii) The fact that the plaintiff was not in possession of the premises in question on the date of institution of the suit and that he had already been ousted from the business of running the shop, is also borne out from the urgency shown by the petitioner-plaintiff in seeking police assistance to implement the order dated 07.06.2022. No sooner the order was passed, the plaintiff moved the application seeking police assistance. Even in the said application, the pleadings are that “inspite of the order of this Court.........defendant is not allowing him to enter the shops......” There is specific admission on the part of the plaintiff that he was not running the business and wanted his re-entry in the shops. (iv) While adjudicating plaintiff’s application seeking police assistance to enforce order dated 07.06.2022, the learned trial Court called for the status report from the concerned SHO. The SHO reported that after 01.06.022, both the liquor shops were being run by defendant Surinder Kumar alongwith Sanjeev Kumar (newly impleaded defendant No. 2). Salary of employees in the liquor shops were also reported as being paid by these two defendants, who were managing the funds of the liquor shops. This status report was not objected to by the plaintiff. 5. Conclusion In order to do justice between the parties or to prevent the abuse of process of Court, the Civil Courts have ample jurisdiction to direct rendering police aid to the aggrieved parties with regard to implementation of orders of the Court in deserving cases. Police aid can be granted in the facts and circumstances of the given case. From all the above discussed points, the only conclusion that can be drawn is that the plaintiff had been ousted from the disputed shops on 03.06.2022. He was not in possession of the premises in question on the date of institution of the suit. The plaintiff had himself admitted this fact in his plaint, though omitted to mention it in his application under Order 39 Rules 1 and 2 CPC. He was not in possession of the premises in question on the date of institution of the suit. The plaintiff had himself admitted this fact in his plaint, though omitted to mention it in his application under Order 39 Rules 1 and 2 CPC. The ad-interim order dated 07.06.2022 did not notice plaintiff’s admission made in his plaint of having been already ousted from the business/premises in question. There was no question of providing him police assistance for enforcement of interim restraint order dated 07.06.2022. The facts mentioned in the plaint had not been mentioned in the application under Order 39 Rules 1 and 2 CPC. These facts came into the notice of the learned trial Court while deciding the application moved by the plaintiff seeking police assistance to implement the order dated 07.06.2022. Police aid could not be provided to the plaintiff for his re-entry in the premises in question. The plaintiff had already been ousted from the premises/business at the time of filing of the plaint and also at the time of passing of the interim injunction order dated 07.06.2022. 6. For all the aforesaid reasons, I do not find any error in the order passed by the learned trial Court refusing to provide police assistance to the plaintiff. In the facts of the case, there is no illegality in the other order passed by the learned trial Court impleading Sanjeev Kumar as defendant No. 2 as his rights are intricately woven in the litigation and he is a necessary party to the civil suit. Finding no merit in the present petition, the same is accordingly dismissed.