IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Civil Revision No. 3 of 2009 Raja Mohammed Amir Mohammed Khan. .……… Petitioner Versus M/s Metropole Hotels Pvt. Ltd. ...……… Respondent Mr. Niraj Gupta and Mr. Ajay Veer Pundir, Advocates for the petitioner. Mr. C. Mukund and Ms. Beena Pandey, Advocates for the respondent. Hon’ble V.K. Gupta, C.J. The facts are very simple but slightly peculiar. Suit No. 116 of 2005 is pending in the court of learned Civil Judge (Senior Division), Nainital, in which the following three prayers were made by the plaintiff: “a) Decree for permanent injunction restraining the defendants and their men, agents and associates from in any way interfering with, disturbing and/or dispossessing the plaintiff from the possession and occupation of the Suit property without due process of law; b) Mandatory injunction be passed directing either the defendant No. 2 to collect rent from the plaintiff or alternately liberty be given to the plaintiff to deposit the rent in the Court; -AND- c) Pass such further or other orders as this Hon’ble Court may deem fit and proper.” 2. Apparently, as per the averments contained in the Plaint in the aforesaid Suit, as on the date of the filing of the said Suit, the plaintiff claimed to be in possession of the property in question and, based on this circumstance, the plaintiff prayed for a decree of permanent injunction restraining the defendants etc. from dispossessing the plaintiff etc. 3. Civil Suit No. 12 of 2006 was instituted by the respondent subsequent to and after Civil Suit No. 116 of 2005 in the court of Civil Judge (Senior Division) at Nainital in which the following reliefs were claimed: “(a) A decree for mandatory injunction directing the defendants to restore back the possession of the suit property being the entire Hotel property consisting of 8.72 Acres of land known as Hotel 2 Metropole, Mallital, Nainital and morefully describe in the Schedule hereunder written and also shown by red ink in the plan annexed hereto to the plaintiff on the same condition as it was taken from the plaintiff on 29th December, 2005; (b) Decree for Mandatory injunction be passed directing either the defendant No. 1 to collect rent from the plaintiff or alternatively liberty be given to the plaintiff to deposit the rent in the Court; (c) Decree for Prohibitory Order of injunction be passed restraining the defendants and their men and agents and officers from in any manner creating any third party interest or transferring or parting with possession and/or from changing the nature and character thereof; (d) Pass such further or other orders as this Hon’ble Court may deem fit and proper.” 4. It is the own admission of the plaintiff / respondent in the aforesaid subsequent Civil Suit that he was evicted and dispossessed from the Suit property on 29th December, 2005. Various averments and contentions have been made in the aforesaid Civil Suit by the plaintiff stating wherein that his such dispossession was illegal and without adopting due process of law. It is in the background of this subsequent development that decree for mandatory injunction directing the defendants in the said Suit to restore the possession was claimed. Decree of mandatory injunction was also claimed for payment / collection of rent. 5. Since admittedly, rightly or wrongly, legally or illegally; the respondent / plaintiff now stands dispossessed, this Court does not see any rationale or logic in the continuance of the first Suit qua Prayer (b) because insofar as Prayer (a) is concerned, in the impugned order, the learned Trial Court has accepted the contention of the petitioner herein that the Suit has become infructuous. If the Suit has become infructuous qua Prayer (a) because of the admitted dispossession of the plaintiff / respondent, since the plaintiff / respondent is not in possession of the Suit property, the Suit has become infructuous qua Prayer (b) as well. I have no hesitation in observing and holding that if, as a result of the decision in the second Suit, the plaintiff / respondent gets back the possession of the property in question, the decision with respect to re-possession by the plaintiff / respondent qua the property in question by itself shall tantamount to protecting the interests of 3 the plaintiff / respondent, including any interest relating to the payment or deposit of the rent. 6. With the aforesaid observations and based on the aforesaid reasoning, this petition is allowed. The impugned order is set aside to the extent that the first Suit has become infructuous qua Prayer (b) as well. However, this decision by this Court is without prejudice to the rights and contentions of the parties in the second Suit, including the contention of the plaintiff / respondent in the second Suit that his tenancy is continuing and that the tenancy cannot be adversely affected because of any default committed by the plaintiff / respondent in the second Suit in the payment of the rent qua the property in question. (V.K. Gupta, C. J.) 22.04.2009 G