1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.9409 OF 2009 Parasnath Ramkisan Mishra ...Petitioner vs. Shivmurti MagdumChaurasiya Ramkisan Bachairam Chaurasiya ...Respondents Mr.P.J.Pawar for the petitioner Mr.M.B.Pai for respondent no.2 CORAM :A.S.OKA,J. DATE : MARCH 2, 2010 P.C. 1 On the last date, the submissions were heard of the learned counsel for the petitioner. Today, the learned counsel for the petitioner stated that without prejudice to the rights and contentions of the petitioner, the petitioner is ready to pay monthly compensation to the 2 nd respondent. The learned counsel for the 2 nd respondent stated that his client is not interested in monthly compensation. Therefore, I am proceeding to decide the petition. 2 The petition arises out of a suit filed by the petitioner against the 1 st respondent. The suit was filed for injunction relating to the suit premises described in paragraph 1 of the plaint. On 22 nd April 2004, the learned trial Judge granted temporary injunction favour of the petitioner restraining the 1 st respondent from creating any sort of obstruction to the possession of the petitioner over the suit premises till the disposal of the suit. An application was made by the 2 nd respondent at Exh.12 seeking permission to implead himself as a 2 party defendant. It was contended in the application that the 2 nd respondent is the tenant in respect of the suit premises and was in possession thereof. It is alleged that in February 2004, the 2 nd respondent had lodged a police complaint as the petitioner tried to dispossess him. The said application was allowed by the trial Court by order dated 6 th November 2004. Thereafter, the 2 nd respondent made an application for temporary mandatory injunction. In the said application, it was contended that on the basis of the order of temporary injunction dated 22 nd April 2004, the petitioner has dispossessed the 2 nd respondent. The said application was contested by the petitioner. By order dated 16 th February 2008, the trial Court granted temporary mandatory injunction enjoining the petitioner to vacate the suit premises and put the 2 nd respondent in possession thereof. An appeal was preferred by the petitioner which has been dismissed by the District Court. 3 The learned counsel for the petitioner submitted that the 2 nd respondent was not in possession of the suit premises on the date of institution of the suit. He pointed out that in the plaint as well as in the application for temporary injunction it was disclosed that the 2 nd respondent was earlier a tenant in possession of the suit premises and that he had surrendered his tenancy and handed over possession to the petitioner. He pointed out that if the case of the 2 nd respondent is that he has been unlawfully dispossessed, it is for him to file a suit under section 6 of the Specific Relief Act,1963. He submitted that in the suit filed by the petitioner, he cannot seek mandatory injunction against the petitioner. He submitted that the application made by the 2 nd respondent was not maintainable. Lastly, he submitted that the suit 3 premises is not in existence and there is a new structure erected in place of the suit premises and therefore, the impugned order is not capable of being executed. The learned counsel for the 2 nd respondent supported the impugned Judgments and Orders. 4 I have carefully considered the submissions. In the application for temporary injunction at Exh.5, the petitioner has disclosed that the 2 nd respondent was his monthly tenant in respect of the suit premises. It is alleged that the 2 nd respondent purchased a flat and shifted to the said flat along with his family members. It is alleged that the 2 nd respondent surrendered his tenancy rights in respect of the suit premises in favour of the petitioner and handed over vacant possession thereof to the petitioner. In paragraph 4 of the application it is alleged that the 2 nd respondent executed a possession receipt in respect of the suit premises and since then the petitioner was in uninterrupted possession thereof. The suit was filed against the 1st respondent on the basis of the allegation that on 17th February 2004, the 1st respondent and some other persons tried to dispossess the petitioner. The application for temporary injunction was allowed on 22 nd April 2004 by which the temporary injunction was granted against the 1 st respondent. By order dated 6 th November 2004, the 2 nd respondent was impleaded as a party- defendant. The 2 nd respondent thereafter made an application at Exh.44 praying for temporary mandatory injunction. In the application made by the 2 nd respondent it is specifically alleged that the 2 nd respondent was in possession till the petitioner illegally took over possession on the strength of order of temporary injunction dated 22 nd April 2004. The allegation in short is that the 2 nd respondent was 4 dispossessed by the petitioner on the basis of the order of temporary injunction passed by the trial Court on 22nd April 2004 against the 1 st respondent. 5 It appears that the parties were permitted to adduce evidence. The 2 nd respondent adduced evidence by filing his own affidavit in lieu of examination-in-chief and produced documents such as rent receipts, photo pass issued by the local authority, electricity bill and a copy of police complaint. The petitioner also filed his affidavit in lieu of examination-in-chief and reiterated that the 2 nd respondent has surrendered tenancy in favour of the petitioner in April 2002. The learned trial Judge found that there was no document produced on record to show that the 2 nd respondent handed over possession. Reliance was placed on the documents at Exh.69 to 83 produced by the 2 nd respondent which show the possession of the 2 nd respondent over the suit premises. What is material to note is that the trial Court recorded a finding that in the cross examination the petitioner admitted that there was no document to show that the 2 nd respondent handed over possession of the suit premises to him. 6 Perusal of the Judgment of the Appellate Court shows that oral and documentary evidence has been considered by the Appellate Court. The Appellate Court referred to the notice issued by the local authority to the 2 nd respondent on 11 th March 2004 as regards issuing photo pass. The Appellate Court recorded a finding that except for the bare words of the petitioner, there was no evidence on record to show that the 2 nd respondent surrendered tenancy and possession to the petitioner. The Appellate Court referred to the electricity bills at Exh. 63 to 68 showing that the electricity meter in respect of 5 the suit premises was standing in the name of the 2 nd respondent and some of the bills were of the year 2004 and 2005. 7 The specific case of the petitioner in paragraphs 3 and 4 of the application for temporary injunction at Exh. 5 was that the 2 nd respondent was the tenant in respect of the suit premises and he handed over possession thereof to the petitioner by surrendering the tenancy. In the application for temporary injunction at Exh.35, the date on which the tenancy was surrendered and the date on which the possession was allegedly handed over to the petitioner have not been disclosed. Paragraph 4 of the application refers to possession receipt issued by the 2 nd respondent. Admittedly, the possession receipt was not placed on record. On the other hand, there was documentary evidence placed on record by the 2 nd respondent in the form of electricity bills and other documents for establishing his possession. The petitioner came out with a case that the 2 nd respondent was admittedly a tenant in respect of the suit premises. The petitioner is relying upon the alleged surrender by the 2 nd respondent. Concurrent findings of the courts below are that the petitioner could not produce any evidence to show that there was a surrender. Therefore, the Courts below accepted the case of the 2 nd respondent that he continued to be in possession of the suit premises even on the date on which the order of temporary injunction was passed against the 1 st respondent. The said prima facie finding has been recorded on the basis of the oral and documentary evidence on record. Thus, there was very strong prima facie case made out by the 2 nd respondent which warranted grant of temporary mandatory injunction. Ultimately, the Courts found that the 2 nd respondent who was not impleaded as a party to 6 the suit was dispossessed on the basis of the order of temporary injunction. The Court was justified in passing an equitable order of restoration of possession in favour of the 2 nd respondent. No case is made out for interference in writ jurisdiction with discretionary and equitable order passed by the Courts below. 8 The learned counsel for the petitioner submitted that the impugned order is not capable of being executed as the suit premises is not in existence. It must be stated here that no such case was made out before the Courts below and even in the memorandum of this Writ Petition filed before this Court. Therefore, on the basis of the said contention orally canvassed before this Court, interference cannot be made with the impugned order. Whether the suit premises are in existence or not is the matter which will be decided when the impugned order is sought to be executed. 9 Subject to what is observed above, there is no merit in the Writ Petition and the same is rejected. 10 However, all contentions of the parties on merits are expressly kept open. JUDGE