B.K.PATEL, J. W.P.(C) NO.6429 OF 2010 (Decided on 21.06.2011) INDIAN TEA PROVISIONS LTD. ……… Petitioner. .Vrs. RAM KRUSHNA DASMOHAPATRA @ TIKI PUA ……… Opp.Party. CONSTITUTION OF INDIA, 1950 – ART.226. For Petitioner - M/s. S.K.Padhi, Partha Mukherji, Supriya Patra, S.L.Harichandan, Swetlana Das. For Opp.Party - M/s. P.K.Routray, B.G.Mishra, A.Routray, G.Bhuyan. B.K. PATEL, J. In this writ petition, petitioner has assailed legality of the order dated 3.12.2009 passed by the learned Civil Judge(Junior Division), Puri in O.S.No.606 of 2001 rejecting petitioner’s application to issue direction to the opposite party to deposit rent for occupation of the disputed property. 2. O.S.No.606 of 2001 is a suit for permanent and mandatory injunction not to interfere with the plaintiff’s possession over the suit premises which comprises of a hotel in the name and style “Hotel Repose, Puri” ( for short, ‘the hotel’ ). Opposite party no.1 filed suit initially against deceased-defendant no.1 Birendra Mohan Sarkar as the Managing Director-cum-Partner of the hotel; defendant no.2 the present petitioner M/s Indian Tea Provisions Ltd. ( for short, ‘the ITC’); and others. 3. Defendant no.2, the writ petitioner, is a lessee of the State Government in respect of the land on which the suit property is situated. Plaintiff’s case is that initially due to his efforts and good offices the ITC through its Director Paresh Chandra Chatterji agreed to let out the suit property to the defendant no.1 on monthly rent of Rs.25,000/- for a period of 21 years. Thereafter, defendant no.1 invited the plaintiff to become a partner. Accordingly, an agreement dated 5.11.87 was entered into between the plaintiff and late Birendra Mohan Sarkar in presence of defendant no.2 represented by Paresh Chandra Chatterji providing therein that the hotel was to be in possession and management of defendant no.1 for the first 10 years after which plaintiff was to take over management of the hotel for 10 years. Agreement further provides that each partner during their respective period of management would pay monthly rent of Rs.25,000/- to the above said Paresh Chandra Chatterji and pay Rs.15,000/- per month to the other partner. The agreement expressly provides that defendant no.1 would handover management of the suit property to the plaintiff after completion of first 10 years w.e.f. 4.8.1987. It is also stipulated that in case defendant no.1 failed to handover management of the hotel after expiry of the tenure and overstayed beyond the 10 years, then the plaintiff would not be liable to pay rent for the period of such overstay to Paresh Chandra Chatterji. In case defendant no.1 failed to pay Rs.15000/- per month to the plaintiff during the period in which the hotel was under his management, plaintiff would be entitled to adjust the unpaid amount out of the income plaintiff derived from the hotel during the plaintiff’s management. It is specifically provided that in case defendant no.1 committed breach of agreement in handing over management of the hotel after expiry of his period, plaintiff would take over management of the hotel without intervention of the court. It is averred by the plaintiff that as defendant no.1 continued to possess management of the hotel in violation of the agreement beyond the period of 10 years till 14.3.2001, plaintiff took over and is continuing with absolute possession and management of the suit property w.e.f 15.3.2001. It is alleged that defendant no.1 is making various attempts to dispossess the plaintiff from the suit property and asserted that defendant no.2 being a signatory to the agreement dated 5.11.97 is bound by the terms and conditions contained therein. Therefore, none of the defendants are entitled to dispossess the plaintiff from the suit property till he continues to pay rent stipulated in the agreement. 4. In the petition, in response to which the impugned order was passed, defendant no.2 states that T.S.No.290 of 1992 instituted by the said defendant against defendant no.1 for eviction and recovery of arrear rent was decreed. It is stated that the present plaintiff in connivance with the deceased-defendant no.1 instituted the present suit to stall execution of the decree in T.S.No.290 of 1992. It is further averred that in view of plaintiff’s claim to be in exclusive possession and management of hotel as the lessee of defendant no.2, plaintiff is liable to deposit the rent. 5. Plaintiff filed objection to the petition stating that in a suit for permanent injunction prayer of defendant no.2 for recovery of arrear rent is not maintainable. It is also averred that defendant no.2 having instituted T.S.No.290 of 1992 in the court of learned Civil Judge(Senior Division), Puri against defendant no.1 for recovery of arrear and current rent, similar prayer in the present suit is liable to be dismissed. It is pointed out in the objection that in the written statement filed by the defendant no.2 in the present suit it has averred that plaintiff does not claim to have any connection with the hotel whereas in the Execution Case No.3 of 2002 instituted by defendant no.2 for execution of the decree in T.S.No.290 of 1992 defendant no.2 has pleaded that there is no existence of relationship of landlord and tenant between the plaintiff and defendant no.2 with regard to the hotel for which defendant no.2 did not accept bank draft sent by the plaintiff towards arrear rent. Thus, defendant no.2’s specific stand in the said execution proceeding is that the plaintiff is a third party with regard to the suit property. 6. Learned court below considering the rival contentions held that prayer for recovery of arrear rent cannot be entertained in a suit for injunction simpliciter. Learned court below also took note of the fact that defendant no.2 did not accept bank draft towards rent tendered by the plaintiff on the ground that there is no relationship of landlord and tenant between them and observed that defendant no.2 cannot be permitted to claim rent from the plaintiff in view of denial of relationship of landlord and tenant with the plaintiff. 7. It was contended by the learned counsel for the petitioner that plaintiff is an imposter and trespasser. Suit agreement dated 5.11.87 is a forged document. ITC, defendant no.2 had filed T.S. No. 290 of 1992 for eviction of and recovery of rent from 2 deceased defendant no.1, Birendra Mohan Sarkar, which was decreed ex parte. Defendant no.2 filed Execution Case No.3 of 2002 for execution of the ex parte decree. At that stage only plaintiff emerged in the scene. However, his application under Order 21, Rule 97 of the C.P.C. filed before the executing court in C.M.A. No. 25 of 2003 was dismissed and dismissal order was confirmed by this Court in FAO No.422 of 2003. It was further submitted that by order dated 28.10.2006 passed in Misc. Case No.10 of 2000, a proceeding under Order 9, Rule 13 read with Section 151 of the C.P.C., instituted by deceased defendant no.1, T.S. No.290 of 1992 has been restored to file. However, legal heirs of deceased defendant no.1 were subsequently set ex parte in the said suit. 8. In the background of above narrated complicated scenario, it was submitted, plaintiff instituted the present suit on the basis of the forged agreement. Defendant no.2 filed written statement specifically assailing the authenticity of the agreement. By order dated 23.8.2002 application filed by defendant no.2 to send the agreement to Handwriting Expert was allowed by the learned Civil Judge (Junior Division), Puri. However, on some pretext or other plaintiff maneuvered to protract the suit and on 20.1.2006 filed objection against the direction to send the agreement to the Handwriting Expert which was allowed by the learned court below. Nonetheless, by order dated 7.4.2008 passed by this Court in W.P.(C) No.17035 of 2006 the order was set aside and learned court below was directed to send the agreement to the Handwriting Expert and to dispose of the suit preferably within six months. Thereafter also, plaintiff managed to drag the suit for which defendant no.2 was constrained to file the petition in response to which the impugned order was passed. 9. It was argued that as the plaintiff himself admits to be a tenant in respect of the suit premises, learned trial court should not have rejected the application to direct him to deposit arrear rent on the ground of denial by defendant no.2 of relationship of landlord and tenant with the plaintiff. Plaintiff has instituted the suit on the basis of a forged document. It was strenuously argued that a person who does not approach the court with clean hands is not entitled to any relief. Therefore, the suit for injunction which is a relief in equity is without foundation. There being no dispute with regard to title of defendant no.2 to the suit property as the lessee of the State Government and plaintiff having claimed his right of occupation and user of the suit property on the basis of partnership with defendant no.1 who is admitted to have been inducted as a tenant by defendant no.2, learned court below should not have refused the prayer to direct defendant no.2 to deposit rent at the admitted rate. In support of his contentions, learned counsel for the petitioner relied upon the decision of the Hon’ble Supreme Court in Ramamurty Subudhi –vrs.- Gopinath : AIR 1968 SC 919, wherein it has been reiterated that who comes to the court with false claims, cannot plead equity nor would the court be justified to exercise equity jurisdiction in his favour. A person who seeks equity must act in a fair and equitable manner. 10. In reply, learned counsel for the opposite party, placing strong reliance on the decision in Jonnalagadda Usha Rani –vrs.- Velamala Vasudeva Rao & Anr. : 2011 (I) OLR (SC) 682 submitted that in a suit for permanent injunction, defendant cannot claim deposit towards rent. It was argued that defendant no.2 having denied relationship of landlord and tenant cannot at the same time claim deposit of arrear rent. It was also 3 argued that defendant no.2 himself having not initiated any action against plaintiff for eviction or for realization of arrear rent, or having not filed any counter claim in the present suit cannot be permitted to convert the present suit to an action for realization of arrear rent. 11. From the pleadings, averments and contentions it is evident that petitioner as defendant no.2 has filed T.S.No.290 of 1992 against deceased-defendant no.1, stated to have been substituted by his legal heirs, not only for eviction from but also for realization of arrear rent in respect of sit premises. Plaintiff’s attempt to be impleaded in the proceeding in Execution Case No.3 of 2002 by filing application under Order 21, Rule 27 of the C.P.C. has failed. Admittedly, agreement dated 5.11.87, stated to be a tripartite agreement among the plaintiff, deceased-defendant no.1 and defendant no.2 is the suit document. Genuineness of the document is required to be considered on conclusion of trial on the basis of evidence of record. Any opinion at this stage with regard to authenticity of signatures appearing thereon would amount to pre-judging the suit. Therefore, it would be pre-mature to assume that the plaintiff has not approached court with clean hands. Decision in Ramamurty Subudhi -vrs.- Gopinath (supra) is of no assistance to defendant no.2 at this stage. 12. Defendant no.2 has altogather denied existence of relationship of landlord and tenant between him and the plaintiff. It is also not disputed that defendant no.2 did not accept rent for occupation of suit house in the shape of bank draft tendered by the plaintiff. However, defendant no.2 sought direction of the court to the plaintiff for deposit of rent of the suit property. So far as the present suit is concerned, plaintiff has prayed for relief of injunction only. Defendant no.2, obviously having denied plaintiff’s tenancy, has not filed any counter-claim. In course of hearing, learned counsel for the petitioner placing reliance on the decision of the Himachal Pradesh High Court in Smt.Rajkumari Soni –v- State of H.P.: AIR 1972 HP 1 contended that plaintiff being in possession of suit premises belonging to defendant no.2 is liable to pay compensation, if not rent, notwithstanding absence of relationship of landlord and tenant. However, as has already been stated defendant no.2 filed application for directing the plaintiff to deposit rent and as yet he has not made any claim for compensation. Present suit involves adjudication of prayer for grant of relief of injunction only. Payment or non-payment of rent or compensation is not an issue. Plaintiff’s claim is to be adjudicated on the basis of suit agreement. Plaintiff claims possession and management of the suit premises as a partner of deceased-defendant no.1 to whom deceased-defendant no.1 admits to have inducted as tenant. In Jonnalagadda Usha Rani –vrs.- Velamala Vasudeva Rao & Anr. (supra) relied upon by the learned counsel for the opposite party it has been held that in a suit for permanent injunction, when the question of relationship of landlord and tenant is not in issue, the respondents-defendants cannot claim deposit towards rent. It has been observed: “The appellant contends that she is in possession in her own right. She filed a mere suit for injunction. The respondents claim that appellant is their tenant. If the appellant as tenant had failed to pay rent, it is open to the respondents as landlords/owners to seek possession/ eviction or seek a decree for rental arrears. In a suit for permanent injunction filed by the appellant, when the question of title and relationship of landlord and tenant is not in issue, the 4 respondents-defendants cannot claim that the appellant-plaintiff should deposit Rs.5000/- per month towards rent.” 13. Thus, considering rival contentions raised by the learned counsel appearing for the parties from all angles, there does not appear any infirmity in the impugned order by which petitioner’s application to direct plaintiff to deposit rent has been rejected. Therefore, there is no merit in the writ petition. Accordingly, the writ petition is dismissed. Writ petition dismissed. 5