kbp 1 7085-02.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 7085 OF 2002 Bharat Petroleum Corporation Ltd. ..Petitioner Vs. Haresh Nagaji Chheda ..Respondent WITH APPEAL FROM ORDER NO.789 OF 2001 Bharat Petroleum Corporation Ltd. ..Appellant Vs. Haresh Nagaji Chheda ..Respondent WITH CIVIL REVISION APPLICATION NO.1311 OF 2002 WITH CIVIL REVISION APPLICATION NO.1366 OF 2001 WITH CIVIL REVISION APPLICATION NO.534 OF 2002 Bharat Petroleum Corporation Ltd. ..Applicant in all Revision Applications Vs. Haresh Nagaji Chheda .. Respondent in all Revision Applications kbp 2 7085-02.sxw ...... APPEARANCES : (Writ Petition No.7085/2002) Mr.Nikhil Sakhardande with Mr.S.G.Page, for petitioner. Mr.A.V.Anturkar, for respondent. (Appeal From Order No.7085/2002) Mr. Nikhil Sakhardande with Mr.S.G.Page, for appellant. Mr.A.V.Anturkar, for respondent. (Civil Revision Application Nos.1311 of 2002, 1366 of 2001 and 534 of 2002) Mr. Nikhil Sakhardande with Mr.S.G.Page, for applicants. Mr.A.V.Anturkar, for respondent. ....... CORAM : A.S.OKA, J. DATE : 7 th OCTOBER, 2009. JUDGMENT : 1] These matters can be disposed of conveniently by a common judgment as they arise out of two connected suits. For the sake of convenience, a reference is made in this judgment to the parties according to their status in Writ Petition No.7085 of 2002. The petitioner – Bharat Petroleum Corporation Limited had entered into an agreement with the respondent in the year 1987 for dispensing a petrol pump and selling license in respect of sale of products of the petitioner company such as Motor Spirit, HSD, Motor Oil, Grease etc. Thereafter, there was a dispute between the parties which led to filing of a suit in the City Civil Court. Subsequently, there was a compromise, and a fresh agreement was executed between the petitioner and respondent on 16 th June, kbp 3 7085-02.sxw 1998. The agreement granted a license to the respondent for a period of 15 years from 1 st April, 1992 to enter upon the premises bearing Plot no.12-A, Sector 1E, Kalamboli, New Mumbai and to use motor spirit and HSD pumps, storage tanks, pipes fittings and all other facilities erected in the said premises for the purpose of sale of motor spirit and/or HSD motor oil and other accessories of the petitioner company. The plot No.12-A is hereinafter referred to as "the suit plot". 2] On the basis of a communication issued on 2nd April, 2001 by the petitioner to the respondent, Special Civil Suit No.26 of 2001 was filed by the respondent for perpetual injunction restraining the petitioner from interfering with continuous use, exclusive occupation and peaceful possession of the suit plot. In the said suit, the petitioner made an application under section 9A of the Code of Civil Procedure, 1908 (hereinafter referred to as “the said Code”) praying that a preliminary issue of jurisdiction be framed. Apart from the said application, the petitioner also made a separate application for rejection of plaint under Rule 11(a) of Order VII of the said Code. On 10 th July, 2001, the trial court by passing an order rejected both the said applications by holding that the Court had jurisdiction to entertain and try the suit. It must be noted here that on the same day, by a separate order, the application for temporary injunction made by the respondent at exhibit 5 was allowed and the petitioner was restrained from interfering with peaceful possession of the respondent over the said property. kbp 4 7085-02.sxw 3] It appears that the petitioner purported to terminate dealership agreement dated 16th June, 1998 by letter dated 3 rd August, 2001. Therefore, a subsequent suit was filed being Regular Civil Suit No.99 of 2001by the respondent for a declaration that the purported termination of the dealership agreement was illegal, null and void and for perpetual injunction restraining the petitioner from enforcing the action of termination. In the said suit, an application was made by the petitioner praying for framing a preliminary issue of jurisdiction. The said application was rejected on 26 th November, 2001 by holding that the court had jurisdiction to entertain the suit. On 3 rd January, 2001 an application made in the said suit for temporary injunction was allowed and the petitioner was directed to restore and continue the supply of the petroleum products to the respondent. An appeal was preferred by the petitioner against the said order before the district court. By judgment and order dated 14 th March, 2002 the appeal was dismissed. 4] Writ Petition No.7085 of 2002 has been filed by the petitioner challenging the order of injunction dated 3rd January, 2001 passed in Regular Civil Suit No. 99 of 2001 and the order of confirmation thereof passed by appellate court. On 25 th November, 2002, this court while issuing the notice on the said writ petition stayed the operation of the order of temporary injunction. The said order of stay continues to operate till today. It must be noted here that prior to filing the writ petition, a Revision Application was filed by the petitioner challenging the kbp 5 7085-02.sxw impugned orders in which ad-interim relief of stay of order of injunction was granted. As the said Revision Application was held as not maintainable, the present petition has been filed. Thus, from the year 2002, the order of temporary injunction has remained stayed. 5] As far as the Revision Application No.1311 of 2001 is concerned, the same takes an exception to the common order passed by the trial Court on the application under Section 9A of the said Code as well as on application under Rule 11(a) of Order VII of the said Code. By the said order, the issue of jurisdiction in Special Civil Suit No.26 of 2001 was decided and it was held that the trial Court has jurisdiction to entertain and try the suit. 6] Civil Revision Application No.1366 of 2001 challenges the order passed on application at exhibit 18 in Special Civil Suit No.26 of 2001 by which an application made by the petitioner for rejection of plaint was rejected. 7] Civil Revision Application No.534 of 2002 has been filed by the petitioner for challenging the judgment and Order dated 26 th November, 2001 in Regular Civil Suit No.99 of 2001 by which an order was passed on preliminary issue of jurisdiction in favour of the respondent-plaintiff. 8] The Appeal from Order No.789 of 2001 has been preferred by the petitioner challenging the order of temporary injunction passed in Special Civil Suit No.26 of 2001. It is pertinent to note that in the said Appeal from Order, there is no interim relief granted in favour of the petitioner. kbp 6 7085-02.sxw 9] Learned counsel for the petitioner submitted that the order of mandatory injunction passed in the subsequent suit has never operated, and therefore, now at this stage, the said order cannot be allowed to operate. As far as the issue of jurisdiction is concerned, he submitted that only the Civil Court in Bombay has jurisdiction to entertain both the suits in view of the jurisdiction clause incorporated in the agreement between the parties on which the parties have acted upon. As far as Appeal from Order challenging order of injunction is concerned, he has placed reliance on a decision of the Apex Court in the case of Southern Roadways Ltd., Madurai Vs. S.M.Krishnan [(1989) 4 SCC 603] and submitted that the respondent is merely an agent of the petitioner, and therefore, he was in possession of the suit plot on behalf of the petitioner. Therefore, it is not at all necessary for the petitioner to file a suit for possession against the respondent. The submission is that in view of the settled law, injunction could not be granted against the petitioner as at highest the respondent can be said to be in possession on behalf of the petitioner. 10] The learned counsel for the respondent supported the impugned judgments and orders. He pointed out that so far as the order of injunction passed in Special Civil Suit No.26 of 2001 which is the subject matter of challenge in Appeal from Order is concerned, there was no reply filed by the petitioner to the application of temporary injunction, and therefore, the contention that the respondent is merely an agent of the petitioner is not at all raised by kbp 7 7085-02.sxw the petitioner before the trial court.. He invited my attention to the averments in the plaint and contended that the case of the respondent is that there is a license granted in favour of the respondent. He submitted that now the petitioner cannot argue that the respondent is merely an agent. He submitted that a licensee in possession cannot be evicted without due process of law. He placed reliance on a decision in the case of Krishna Ram Mahale (dead) by his Lrs. Vs. Mrs.Shobha Venkat Rao [AIR 1989 SC 2097]. He invited my attention to the terms and conditions of the agreement between the parties and submitted that obviously the respondent is not appointed as an agent of the petitioner. 11] I have carefully considered the submissions. As far as Writ Petition No. 7085 of 2002 is concerned, the challenge is to an order of temporary injunction passed in the subsequent suit (Regular Civil Suit No.99 of 2001) filed by the respondent. The challenge in the said suit is to an action of termination of agreement of dealership by the petitioner. By the impugned order of temporary injunction, the learned trial Judge restrained the petitioner from acting upon the order of termination. A temporary mandatory temporary injunction was granted against the petitioner to restore the supply of petroleum products. The said order remained stayed during the pendency of an appeal preferred by the petitioner, and thereafter the stay continues to operate under the orders of this court. The order of temporary injunction is of a drastic nature which virtually amounts to granting final relief in the suit. From the year 2002, the said order has never kbp 8 7085-02.sxw operated till today by virtue of interim order passed in appeal and interim order in this writ petition. Therefore, in exercise of writ jurisdiction under Article 227 of the Constitution of India, the only order which can be now passed is a direction for expeditious disposal of the suit by continuing the interim relief which is operating in this petition. 12] As far as the orders on issue of jurisdiction in both the suits are concerned, the entire emphasis of the petitioner was on the term incorporated in the earlier agreement of November, 1987 regarding jurisdiction of the court which provided that all suits will be filed in the Courts in Bombay. However, it is not in dispute that the relationship between the parties is governed by the subsequent agreement of 16 th June, 1998. The finding of the trial Court is that there is no such jurisdiction clause in the said agreement which governs right and liabilities of the parties. The suit plot is admittedly situated within the ordinary original jurisdiction of the Court in which suits were filed. Therefore, it is difficult to find fault with the view taken by the trial court in the both the suits on the issue of territorial jurisdiction. 13] As far as the prayer for rejection of the plaint is concerned, what was invoked was clause "a" of Rule 11 of Order VII of the said Code. The plaint may be rejected under the said clause provided on a plain reading of the plaint it does not disclose any cause of action. While dealing with the said prayer, the court cannot look into the defence of the defendant. Perusal of the plaint shows kbp 9 7085-02.sxw that the cause of action pleaded is a threat given by a communication to the respondent and apprehension that the respondent will be forcibly dispossessed. Therefore, it cannot be said that there is no cause of action to file the suit. As far as the merits of averments made in the plaint are concerned, the same will have to be decided at the time of final hearing of the suit. 14] It is undisputed that no reply was filed by the petitioner to the application for temporary injunction made by the respondent- plaintiff in Special Civil Suit No. 26 of 2001. One of the contentions raised is that the petitioner had filed an application under Section 9A of the said Code as well as on application under Rule 11 of Order VII of the said Code and on the day on which the said applications were rejected , the trial court passed the impugned order of temporary injunction. The contention is that there was no opportunity available to the petitioner to file a reply. Even going by the provisions of Section 9A of the said Code, the issue of jurisdiction and the application exhibit 5 for temporary injunction could have been decided together. Nothing prevented the petitioner from filing a reply. 15] The contention of the petitioner is that the respondent was holding the suit plot on behalf of the petitioner as an agent, and therefore, the respondent was never in possession of the suit plot and in any case he is not entitled to relief of injunction. The averments made in the plaint are that the respondent was in actual physical and possession of the suit plot. One of the averments in para 7 kbp 10 7085-02.sxw is that the petitioner had granted permanent licence to the respondent to use and occupy the suit plot. A reliance was sought to be placed by the learned counsel for the respondent on the certain clauses in dealership agreement. Whether the respondent is in possession as a licensee or whether he is merely an agent of the petitioner are the issues which will have to be decided on evidence. If the petitioner had filed a reply raising a contention that the respondent is merely an agent, a prima finding would have been recorded by the trial court on the aspect of the nature of possession of the respondent. However, the petitioner has not chosen to file a reply on merits dealing with the contentions raised in the application exhibit 5. Assuming that the petitioner is right in saying that there was no opportunity granted to the petitioner to file a reply, it is too late in the year 2009 to permit the petitioner to file a reply to the application for injunction which was filed in the year 2001. Instead of directing the trial court to re-hear the application exhibit 5, the petitioner can be granted an opportunity to file a written statement and the suit can be expedited. However, there is one more aspect to be noted. The operative part of order of injunction which reads thus:- " The application at Exh.5 is hereby granted. Issue ad-interim injunction against the defendant restraining them from interfering in the peaceful possession of the plaintiff over the suit property through their agents, servants or officers, till final decision of the suit" kbp 11 7085-02.sxw There could not have been a blanket injunction granted by the trial court. Even going by the arguments of the learned counsel for the respondent , the petitioner will have to adopt due process of law for dispossessing the respondent. To that extent, the order of temporary injunction will have to be modified. 16] Hence, I pass the following order:- (a) Writ Petition No.7085 of 2002 is disposed of by directing that the ad-interim relief granted by this Court on 25th November, 2002 shall continue to operate till the final disposal of the suit. (b) Appeal from Order No.789 of 2001 is partly allowed. The impugned order of injunction is modified by directing that the said order shall not prevent the petitioner from adopting the due process of law for dispossessing the respondent. (c) Civil Revision Application Nos.1311 of 2002, 1366 of 2001 and 534 of 2002 are dismissed. (d) If the petitioner has not filed the written statement in both the suits, the same shall be filed by the petitioners on or before 1st January , 2010. (e) Hearing of the suits is expedited. If the suits are pending in different courts, the learned Principal District Judge, District Raigad shall pass an administrative order of assigning the suits to one and kbp 12 7085-02.sxw the same court. (f) The suits shall be disposed of as expeditiously as possible and preferably on or before 30th April, 2010. (g) All contentions of the parties in the pending suits are expressly kept open and the suits shall be decided on its own merits. (h) Civil Application No.947 of 2001 is disposed of. ( A.S.OKA, J. )