1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.107 OF 2009 1) Nachhattar Singh s/o Budhisingh Bandiwal, R/o- Bharaisingh Nagar, In front of M.G.M. College, Hingoli Road, Nanded, Tal. & Dist-Nanded, 2) Jetendrasingh s/o Devasingh Dhillo, R/o-Badepura, Gurudwara, Gate No.3, Nanded, Tal. & Dist-Nanded. ...APPELLANTS. VERSUS Gurunamsingh s/o Nagarsingh, R/o-Bhagatsingh Road, Nanded, Tal. & Dist-Nanded. ...RESPONDENT. ... Mr.P.R. Katneshwarkar Advocate for Appellants. Mr. H.I. Pathan Advocate for Respondent. ... CORAM: K.K. TATED, J. ORDER RESERVED ON : 7TH JULY, 2009. ORDER PRONOUNCED ON : 14TH JULY, 2009. 2 ORDER : 1. Present Second Appeal arises out of the Judgment and decree dated 25th August, 2008 passed by District Judge-2, Nanded in Regular Civil Appeal No.104 of 2004 arising out of the Judgment and decree dated 30th September, 2004 passed by Joint Civil Judge, Junior Division, Nanded in Regular Civil Suit No.365 of 2000. Both the Courts concurrently held that plaintiffs were not entitled to perpetual injunction restraining defendant from interfering with their peaceful possession in respect of hotel premises of bricks wall with tin shed in 70 X 35 ft. portion in a field having Survey No.40, situated at Jambhrun near Dabhad Phata. 2. Present Second Appeal is preferred by original plaintiffs. Respondent is a original defendant. The plaintiffs instituted Suit for perpetual injunction against defendant restraining him from interfering with their peaceful possession of the suit property as described herein above. It is the case of the plaintiffs that they decided to start hotel business and therefore they approached the defendant. The defendant owns and 3 possess a field Survey No.40 situated at Jambhrun near Dabhad Phata. The field is on Hingoli road in between Dabhad Phata and Basmat Phata. In said field there are premises of bricks wall with tin shed in 17 X 35 ft. portion. The plaintiff No.2 requested the defendant to give the said premises on lease to run the hotel. The defendant consented to it. The said premises were given on lease to plaintiff No.2 on 11th February, 1993. The agreed rent of the suit premises was Rs.500/- per month and plaintiff No.1 deposited a sum of Rs.5000/- towards the deposit with defendant. Thereafter from time to time the defendant executed rent note in favour of the plaintiff No.2. Plaintiff No.2 is brother in law of plaintiff No.1. Both the plaintiffs started the hotel business in the name and style "Fauzi Hotel". The plaintiffs case is that since 10th July, 2002 the defendant refused to accept the rent from the plaintiffs and insisted to vacate the premises. On 14th July, 2002 the defendant along with some anti-social elements, entered in the hotel and tried to take forcible possession. At that time the plaintiffs resisted the same. Therefore the defendant threatened them to vacate the suit premises within one or two weeks, otherwise 4 they will have to face dire consequences. Because of this the plaintiffs filed Regular Civil Suit No.365 of 2002 for injunction restraining defendant from disturbing their peaceful possession in respect of the suit premises. 3. On the other hand, it is the case of the defendant that plaintiffs failed to pay rent from time to time. Therefore, he issued a legal notice through his Advocate and tenancy was terminated since 10th October, 2002. Thereafter the defendant called upon the plaintiffs to handover the vacant and peaceful possession of the suit premises but the plaintiffs declined to do so. In the Suit the defendant filed his written statement as well as counter claim and submitted that since December, 2001 the plaintiffs did not pay any rent to him and therefore the plaintiffs are in arrears of rent for 9 months. The defendant in counter claim, claimed arrears for 9 months. In addition to that defendant also claimed vacant possession of the suit premises along with Rs.70/- per day towards damages for wrongful occupation since October, 2002 till 11th January, 2003. The defendant further submitted that the 5 suit premises were handed over to plaintiff No.2 to carry on the hotel business but without any intimation and/or permission from defendant, the plaintiff No.2 allowed plaintiff No.1 to conduct the hotel business in suit premises. 4. Considering the rival pleadings of the parties, the trial Court framed following issues: ISSUES FINDINGS 1) Does plaintiffs prove that plot adms. 70' X 35' situated on Hingoli-Nanded road, in survey No.40 in Jambhrun Shivar was leased on rent Rs.500/- per month as per rent note dt. 11-2-1993? Partly proved. 2) Does plaintiffs prove that, on 14.7.2002, defendant gave threat to dispossess from the suit premises Not proved. 3) Whether plaintiffs are entitled to claim a relief of perpetual injunction? No. 4) Does defendant prove that, tenancy of plaintiffs was terminated on 10th October, 2002? Proved. 5) Does defendant prove that, suit is not tenable? Proved. 6) Whether defendant is entitle to claim counter-claim? Yes. 6 7) What order and decree? Suit is dismissed, as per final order. 5. The trial Court as well as the first appellate Court concurrently held that the plaintiffs are unauthorized occupants of the suit premises after termination of the tenancy. Both the Courts further held that plaintiff No.1 is not tenant of the defendant, he is third person. Plaintiff No.2, who is tenant of defendant, did not step into Witness Box and depose single word about his land-lord, about the obstruction and/or interference. The plaintiffs failed to adduce any cogent evidence on record to show that they are entitled injunction against the true owner in respect of the suit premises. It is settled law that a trespasser cannot seek injunction against the true owner. Injunction is equitable relief and the Court must see that a person who is a trespasser, can not seek the helping hand of the Court for protecting his unlawful possession as against the true owner. A person who seeks equity, must do equity. He must also come to the Court with clean hands. This is not the case with the Appellants. Delhi 7 High Court in the matter of D.T.T.D.C. vs. M/s. D.R. Mehera and sons, reported in AIR 1996 Delhi, Page 351 held that licencee not entitled to injunction against owner. Head Note of the said Judgment reads as under: "Civil P.C. (1908), Order 39, Rule 1 - Temporary injunction - Equitable relief - Licence to use premises - Expiry of - Licencee continuing possession thereafter - It is unlawful and illegal - Licencee not entitled to injunction against owner, notwithstanding provisions of Section 6 of the Specific Relief Act." 6. In any case the defendant terminated tenancy rights of the plaintiffs in respect of the suit premises legally. After termination of the tenancy rights, the plaintiffs have no right to remain in possession of the suit premises. Not only that the trial Court allowed the counter-claim of the defendant holding that the defendant's counter-claim for vacant possession of the suit premises and recovery of Rs.12,440/- towards of rent and damages is decreed. I do not find any infirmity in the Judgments passed by both the Courts below. There is no substantial question of law involved in the 8 present Second Appeal to consider. In view of that, Second Appeal is dismissed summarily with no order as to the costs. [K.K. TATED, J.] asb/JULY09/sa107.09