C.R. No. 2920 of 2009 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.R. No. 2920 of 2009 Date of Decision: August 17, 2009 Man Singh Saini …..Petitioner Vs. Kulwant Singh and others …..Respondents CORAM: HON’BLE MR. JUSTICE M.M.S. BEDI. -.- Present:- Mr. Pritam Saini, Advocate for the petitioner. Mr.D.B. Singh, Advocate for respondent No.1. Mr.Arvind Sandhu, Advocate for respondent No.2. Mr.R.N. Raina, Advocate for respondent No.3. -.- M.M.S. BEDI, J. This is a revision petition by defendant- petitioner against order dated May 15, 2009 vide which an application under Order 39 Rules 1 and 2 read with Section 151 CPC filed by plaintiff- respondent No.1 for interim injunction restraining the petitioner from interfering in the possession of the C.R. No. 2920 of 2009 [2] suit premises has been allowed setting aside the order of the trial Court dated May 6, 2009 dismissing the application for interim injunction. The petitioner is defendant No.1 in a suit filed by plaintiff- respondent No.1, respondents No.2 and 3 are defendants No.2 and 3 respectively (co-defendants with petitioner) whereas respondent No.4 is SHO of the Police Station of the area in which the plaintiff- respondent No.1 has filed the suit. The plaintiff- respondent No.1 is the only contesting respondent in this case at this stage. The plaintiff- respondent No.1 had filed a suit for injunction against the defendants for restraining them from interfering in his peaceful possession, use and occupation of suit premises which is ground floor and basement portion of SCO No. 45, Sector 42-C, Chandigarh, claiming that defendant- respondent No.2 was doing wine and liquor business in the premises in dispute under L-2 license issued by the office of Excise and Taxation Commissioner, U.T. Chandigarh, in the name of defendant No.1- petitioner, whereas plaintiff- respondent No.1 w.e.f. April 2, 2009 took the premises in dispute on lease from defendant No.3, the land-owner under a lease agreement dated April 2,2009. It is claimed by plaintiff- respondent No.1 that peaceful vacant physical possession of the suit premises was also delivered to the plaintiff- respondent No.1 on April 2, 2009 by defendant No.3 as such plaintiff- respondent No.1 acquired the exclusive possession for use and occupation of the suit premises. The plaintiff claimed that the petitioner in collusion with defendant- respondent No.2 and defendant- respondent No.4 started harassing the plaintiff, threatening to interfere with the peaceful possession, C.R. No. 2920 of 2009 [3] use and occupation of the premises and sought to dispossess the plaintiff illegally and forcibly. Plaintiff claimed that cause of action arose to him on April 4, 2009 when the petitioner alongwith defendant No.2 threatened the plaintiff to interfere in his peaceful possession and made an attempt to forcibly oust him. A complaint was lodged by the plaintiff- respondent No.1 with the police. The plaintiff- respondent also filed an application under Order 39 Rules 1 and 2 read with Section 151 CPC for grant of ad- interim injunction for restraining the petitioner and other defendants from interfering in his peaceful possession, use and occupation of the suit premises or to forcibly dispossess him otherwise than in due course of law. The petitioner- defendant No.1 filed a written statement taking up the plea that the premises in dispute was let out by the owner defendant No.3 to defendants No.1 and 2 vide lease deed dated April 1, 2007 for running liquor vend. The names of petitioner and defendant No.2 were mentioned as lessees in the lease deed. After execution of the lease deed, while the petitioner and defendant No.2 were in the process of filing the application to obtain the license of liquor vend from Excise and Taxation Department, defendant No.2 disclosed that he was a proclaimed offender in some criminal case, as such the license of the liquor vend of the premises in dispute was granted in the name of the petitioner- defendant No.1 by the Department of Excise and Taxation, U.T. Vide license which was valid w.e.f. April 1, 2007 to March 31, 2008, business of liquor vend was started by the petitioner as sole proprietor in the premises and he regularly paid the rent of the premises to the owner. The license was renewed for subsequent C.R. No. 2920 of 2009 [4] year by depositing a requisite fee of Rs.25 lacs on February 28, 2008 and the license was extended by the Assistant Excise and Taxation Commissioner, U.T. Chandigarh, in the name of petitioner till March 31, 2009. The petitioner again applied for renewal of license for a further period of one year. The license was further renewed for a year ending on March 31, 2010. As per the policy, the petitioner was to remove the liquor in the evening on March 31, 2009 lying in the premises but the remaining articles which included racks, freezers, counters, tables, chairs and kitchen articles, remain in the premises. Defendant No.2 colluded with the landlord and played a mischief regarding which the petitioner made a complaint to SSP, Chandigarh, for providing security at the premises. The petitioner had deposited Rs.6.25 lacs towards the renewal fee for the year ending Mach 31, 2010. Instead of providing police security to the petitioner at the premises, the police connived with the landlord and the plaintiff and defendant No.2 and he was involved in a criminal case bearing FIR No. 31 dated April 11, 2008 and locks were put on the premises in dispute while the articles of the petitioner were lying in the premises which are owned by the petitioner. The petitioner had written a letter dated April 6, 2009 to the Assistant Excise and Taxation Commissioner narrating the facts. In view of the above pleadings it was averred that the plaintiff- respondent has been planted by the owner- landlord and defendant No.2 to obtain an ex-parte order so that the same could be used as a tool by the police to dispossess the petitioner from the premises in dispute. The petitioner claimed that locks have been put by the plaintiff- respondent C.R. No. 2920 of 2009 [5] illegally at the time of filing the suit. The petitioner had also sought the possession of the premises by raising a counter-claim and sought a decree for mandatory injunction against the plaintiff and his agents seeking a direction for removal of the locks from the premises or in the alternative to permit him to remove the locks in the interest of justice. The trial Court vide order dated May 6, 2009 dismissed the application of the plaintiff- respondent No.1 for grant of interim injunction and directed the plaintiff- respondent No.1 to handover the possession of the premises in question to the petitioner by removing the locks put on the doors of the premises in question, relying upon the rights of the petitioner as a tenant w.e.f. April 1, 2007 and on the basis of the documents in the shape of L-2 license issued by the Excise and Taxation Commissioner, Chandigarh, which was renewed third time till March 31, 2010. The lease deed dated April 2, 2009 relied upon by the plaintiff- respondent was disbelieved as the terms of the lease deed that the premises will be used for liquor vend seemed to be in contradiction with the absence of license in favour of the plaintiff- respondent No.1. When the order dated May 6, 2009 was not complied with, another application was filed for implementation of the order. Vide order dated May 11,2009, Civil Judge (Junior Division), Chandigarh, ordered the police help to the petitioner to get the possession restored by breaking open the locks and doors of the basement and ground floor of the premises in dispute. In an appeal filed by the plaintiff- respondent No.1, the District Judge, Chandigarh reversed the order of refusal of interim injunction to the plaintiff- respondent on the ground that C.R. No. 2920 of 2009 [6] the lower Court had acceded jurisdiction in issuing interim mandatory injunction directing the police to break the locks and to deliver the possession to the defendant- petitioner. The lower Appellate Court was persuaded by the report of SHO concerned who had stated that no police help had been given on account of election duty. The photographs placed on the file regarding premises were disbelieved on the ground that the stage at which these were taken was not clear. The lower Appellate Court observed that when no police help was provided, it cannot be said that defendant No.1- petitioner had broken the locks and took possession of the premises, on the basis of presumption that defendant was not in possession of the premises, the interim order passed by the trial Court was set aside and the application filed by the plaintiff under Order 39 Rules 1 and 2 was allowed and the defendant- petitioner alongwith other defendants was restrained from interfering in the possession of the plaintiff over the premises in dispute vide order dated May 15, 2009. It is the abovesaid order of District Judge dated May 15, 2009 which has been challenged by defendant No.1- petitioner. Mr.Pritam Saini, learned counsel for defendant No.1- petitioner has contended that the lower Appellate Court has acted illegally in setting aside the well reasoned order of the trial Court dismissing the application of the plaintiff- respondent for interim injunction and allowing the said application without carefully considering the documents and actual facts and circumstances of the case. C.R. No. 2920 of 2009 [7] Sh.D.B.Singh, counsel for plaintiff- respondent No.1 has contended that it is prima facie established from the lease deed dated April 2, 2009 executed by the landlord that the vacant physical possession of SCO No.45, ground floor and basement, Sector 42, Chandigarh, has been delivered to the plaintiff- respondent No.1 on April 2, 2009 and that the landlord had agreed that all the agreements prior to these agreement stand cancelled. Even the landlord had admitted before the Lower Court that possession has been handed over to the plaintiff. He argued that as per the contents of the lease deed dated April 2, 2009, the landlord had taken actual physical possession from defendant No.2 and handed over the same to the plaintiff. The plaintiff on payment of money to defendants No.1 and 2 had taken the possession. The counter-claim raised by the petitioner- defendant No.1 is not maintainable and it is beyond the purview of interlocutory order to direct police to handover the possession to plaintiff by issuing interim mandatory injunction, as has been done by the trial Court. He argued that the order passed by the lower Appellate Court allowing the application for interim injunction filed by plaintiff- respondent No.1 is perfectly a valid order. He referred to a large number of judgments of Supreme Court including Nawal Kishore Tulara Vs. Dinesh Chand Gupta and others, (2001) 6 SCC 110, to contend that the revisional jurisdiction of High Court is very limited and it should not interfere in an order passed by the Court below granting or refusing interim injunction. I have heard counsel for both the parties and carefully gone through the order passed by the trial Court, the Lower Appellate Court, the C.R. No. 2920 of 2009 [8] pleadings of the parties and the documents placed on the record of the Lower Court with the assistance of counsel for both the parties. I have carefully gone through the terms and conditions of the lease deed relied upon by the parties and the documents of license to run the liquor vend in the premises in dispute. In view of the order of the trial Court refusing interim injunction to plaintiff- respondent No.1 having been set aside by lower Appellate Court, it is deemed appropriate to re-assess the rights of the plaintiff- respondent No.1 claimed on the basis of the lease deed dated April 2, 2009 as he rests his claim solely on the basis of the said lease deed. It is not out of place to mention here that the landlord-owner of the building was represented by Sh.R.N. Raina, Advocate, who has, on enquiry made by the Court, stated that at present the possession of the premises in dispute is with the petitioner and that he is running a liquor vend. He stated that a sum of Rs.1.60 lacs which is mentioned in para 18 of the lease deed as security, has not been received by him from plaintiff- respondent No.1. Even plaintiff- respondent No.1 has not been able to place on record any rent receipt indicating that a relationship of landlord and tenant came into existence between him and respondent No.2. So far as defendant- petitioner is concerned, the claim of the defendant- petitioner rests upon the lease deed dated April 1, 2007 regarding the premises in dispute indicating that the premises was let out to petitioner and respondent No.2. The said lease document was executed for 11 months commencing from April 1, 2007 to February 29, 2008. The L-2 license for liquor vend which was issued in favour of the petitioner has been placed on the record which prima facie C.R. No. 2920 of 2009 [9] establish that the petitioner had occupied the premises in dispute as a tenant prior to the creation of right of the plaintiff- respondent on the basis of the lease deed dated April 2, 2009. The lease deed in favour of the defendant was again renewed vide another lease deed and he was granted L-2 license of liquor vend for a period from April 1, 2008 to March 31, 2009. It is apparent from the documents that the liquor vend continued for the year from April 1, 2008 to March 31, 2009. The right of the petitioner to remain in possession till March 31, 2009 flows from the license which stood renewed on payment of license fee of Rs.25 lacs. Not only this, the defendant- petitioner had applied for the renewal of license again which was granted to him from April 1, 2009 to March 31, 2010. Certain complaints filed by the petitioner to the SSP, U.T. Chandigarh on march 30, 2009 indicate that there was an apprehension of breach of peace regarding the premises in dispute. When required to show a copy of the license issued by the Excise Department for running the liquor vend L-2, counsel for the petitioner has drawn the attention of the Court to annexure P-4. The plaintiff alongwith respondent No.2 had also submitted an application on March 10, 2009 for grant of liquor vend L-2 for the year 2009-10 in the premises in question and the plaintiff had been informed that he had been kept in waiting list at Sr.No.2. In this context, the letters annexure P-5 and P-6 have been placed on record. From the other documents, it is apparent that on the basis of the lease deed dated April 2, 2009, the plaintiff- respondent had been able to put his lock on the premises in dispute which was got opened pursuant to the directions passed by the Civil Court finding C.R. No. 2920 of 2009 [10] that plaintiff- respondent did not have a right to lock the premises. From the above circumstances, plaintiff- respondent No.1 does not have a prima facie case in his favour on the basis of a sole document i.e. lease deed which has not been admitted by the landlord. Counsel for the landlord has admitted the possession of the defendant and admitted the defendant- petitioner as his tenant. The lower Appellate Court did not take into consideration all the documents to find out whether the plaintiff- respondent has got prima facie case in his favour establishing his possession on the basis of one single document i.e. lease deed which has even been denied by the landlord. So far as balance of convenience is concerned, it lies in favour of the defendant- petitioner as for the third consecutive year, L-2 license has been granted to run the liquor vend in the premises in dispute. Since the license of liquor vend has not been granted to the plaintiff- respondent to run the liquor vend in the premises in dispute, it appears that no irreparable loss will be suffered in case the interim injunction is not granted to him. Taking into consideration the above three factors, I am of the opinion that prima facie, plaintiff- respondent No.1 has not been able to establish his possession and right to occupy the premises to run the liquor vend. The balance of convenience does not lie in his favour and he will not suffer any irreparable loss in case injunction is not granted to him. From the totality of the circumstances, it appears that there is tug of war regarding the possession and running of business in the premises in dispute between the plaintiff on one side and the defendant- petitioner on C.R. No. 2920 of 2009 [11] other side. The defendant-respondent No.2 prima facie appears to be running the shop behind the scene. The landlord and owner of the premises is a neutral man interested in the security and the rent. He has got no inclination for any of the parties whosoever pays rent and runs the liquor vend, suits him and he kept shifting his stand depending upon the circumstances by tilting his sincerity as per the opportunity available to him. No doubt, in rarest of rare cases interim mandatory injunction is required to be issued when there are extraordinary exceptional circumstances. In the present case, plaintiff- respondent No.1 on the basis of one document i.e. lease deed executed on April 2, 2009 sought to establish his possession and tenancy right to oust the defendant- petitioner who had been in possession of the same premises as tenant for the last two years. It is apparent from various documents that a lock had been put on the premises in dispute. The trial Court had rightly exercised its discretion in issuing a direction that police should break open the lock to enable the defendant to continue enjoying the possession as tenant. The order passed by the Additional District Judge is hereby set aside and the order passed by the trial Court is hereby restored. It is made clear that any observation made in the abovesaid judgment will not affect the case on merits and it will not, in any manner, prejudice any dispute regarding the settlement of accounts between the contesting parties. The revision petition is allowed. Parties are directed to appear before the trial Court on the date fixed for further proceedings. However, the trial Court is directed to expeditiously dispose of the matter. C.R. No. 2920 of 2009 [12] August 17, 2009 (M.M.S.BEDI) sanjay JUDGE