1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5517 OF 2006 Shri.Somvanshiya Sahastrarjun Kshatriya Samaj, a Trust and others. ...Petitioners. vs. 1.Vardhaman Petrol Depot and another. ...Respondents. --- Mr.P.K.Dhakephalkar i/b. Mr.Jaydeep S. Deo, for Petitioners. Mr.C.J.Sawant i/b.Mr.V.G.Ghosalkar, for Respondent no.1 & 1B. --- CORAM: D.K.DESHMUKH, J. DATED: 18th JANUARY,2008. P.C.:- 1. Rule returnable forthwith. Heard finally by 2 consent of parties. 2. By this petition, the petitioners challenge the order passed by the Courts below granting temporary injunction in favour of the plaintiffs. The relevant admitted facts are that the plaintiffs are the owners of the land which is the subject matter of the suit. That land was given on lease by the petitioners to Burmah Shell Oil Storage and Distributing Company of India Ltd. which was predecessor in interest of respondent no.2 Bharat Petroleum Corporation Ltd.. The landlords- petitioners filed a suit against the lessee and obtained a decree of eviction. That decree was put to execution and the lessee handed over possession in execution to the landlord. Thereafter, regular civil suit no.180 of 2003 was filed by the present respondent no.1 claiming to be in possession of the property and seeking following reliefs. “(a) That the decree passed in the Civil Suit of 207/1998 Dt.21.6.2000 by Small Causes Judge, Pune, be declared as null and void without jurisdiction 3 and as obtained by fraud, collusion and misrepresentation. (b) That the Defendants be restrained by order of permanent injunction restraining them or their servants, agents, employees etc. from dispossessing the plaintiffs forcefully of by executing the decree in Civil Suit no.207/1998. (c) That an order of interim injunction may please be passed during the pendency of the suit. (d) That the plaintiff be declared as a lawful and valid tenant of the Defendant no.2 i.e. the Landlord, the Somwanshi Saharashtra Arjun Kshatriya Samaj Trust. (e) Any other just and equitable order may be passed in the interest of justice.” In that suit an application for temporary injunction was taken out. The plaintiffs were seeking temporary injunction restraining the petitioners from disturbing the possession of the plaintiffs. 4 According to the plaintiffs, the plaintiffs were in possession of the property and therefore, the decree obtained by the landlord against the lessee was vitiated by fraud, because without joining the plaintiffs as party to the suit the decree of possession should not be obtained from the lessee. The plaintiffs were claiming declaration that they became the tenant of the property because of the agreement entered into by the plaintiffs with the original lessee. The application was opposed by the present petitioners. The trial Court, however, by order dated 6.6.2006 granted temporary injunction restraining the landlord from disturbing the possession of the plaintiffs. That order has been confirmed in the appeal. The learned Counsel appearing for petitioners submit that the sole basis of the case of the respondent no.1 was that the respondent no.1 was placed in possession of the property by the original lessee. Admittedly, according to the plaintiffs, they came into possession of the property because of the agreement entered into between the plaintiffs and the predecessor in title of the lessee viz. Burmah Shell. 5 The learned Counsel submits that perusal of that agreement shows that the plaintiffs were merely appointed as dealer by the lessee and that they were never put in possession of the property. They were merely permitted to use the land and the other facilities of the lessee. The learned Counsel submits that the relevant clauses of the agreement have not been considered by both the Courts below. He further submits that though admittedly there is a decree of eviction passed against the lessee and the plaintiffs were claiming through lessee, there is no finding recorded by both the Courts below as to how and why that decree is not binding on the plaintiffs. He further submits that though the decree of declaration is sought, the decree obtained by the landlord against the lessee is vitiated by fraud, there is no prima facie finding recorded that the decree is vitiated by fraud. In the submission of the learned Counsel appearing for petitioners therefore, because of non consideration of relevant clauses in the agreement, the order suffers from non application of mind to material facts and in the absence of recording such prima facie finding, the 6 courts below are not justified in granting temporary injunction. The learned Counsel appearing for original plaintiffs, on the other hand submits that both the Courts below have found as a fact that the plaintiffs are in possession, and therefore, they have made the order for protecting their possession. The learned Counsel also submits that all the relevant clauses of the agreement have been taken into consideration and therefore, according to the learned Counsel, there is no justification for interfering with the order passed by the Courts below. 3. Now in the light of these rival submissions, if the record of the case is perused, it becomes clear that the plaintiffs claim to be in possession of the property because of the agreement dated 19.5.1970 entered into between the plaintiffs and Burmah Shell. Heading of that agreement is “Dispensing Pump and Selling Licence”. Even according to the present plaintiffs, they use the land for the same purpose viz. Selling of petrol and running petrol pump on the land. It is clear from the 7 agreement that the plaintiffs came on the land because there was a lease agreement between the landlord and the oil company. Now if admittedly, the lease agreement between the landlord and the oil company has come to an end because of the decree of eviction passed, the plaintiffs who are claiming through the oil company cannot continue on the land unless they establish either that there is authority in the oil company to create tenancy in their favour or the landlord has directly created tenancy in their favour. The plaintiffs do not claim that the landlord has created tenancy in their favour but according to them the tenancy gets created in its favour by the lessee because of the agreement dt. 19.5.1970. In my opinion, therefore, the clauses of that agreement become relevant. Perusal of clause (1) of that agreement shows that the agreement was entered into to grant licence to the plaintiffs to enter upon the premises and to use the moter spirit and/or H.S.D.Pumps, Storage tanks, pipes and fittings and other facilities erected and provided by the company on the said land during the period for which the licence was granted by the company in favour of the 8 plaintiffs. In my opinion, what is contained in clause (4) and clause (5) is relevant. They read as under:- “4. The said premises and the said facilities shall at all times during the continuance of this liecence remain the absolute property and in sole possession of the Company and no part of the said facilities shall be removed by the Licensees nor shall the position of any constituent part thereof or of the said premises be changed or altered without the previous written consent of the Company. 5. The premises and the said facilities hereby licensed to the Licensees shall only be used for stocking and selling/dispensing the Petroleum Products of the Company and shall not be used for any other purpose except as may be permitted in writing by the Company.” Perusal of the above quoted clause (4) shows that even during continuance of the licence it was only lessee who was in possession and the licensees were not in possession of the property and they were permitted only to use the land and the facilities 9 erected by the lessee for the purpose of dispensing petrol. Now the facilities were erected by the oil company because the oil company was lessee of the land. If the oil company ceases to be the lessee of the land then obviously their authority to erect and continue to be in possession cease to exist. In the absence of any authority to the oil company to continue the facilities on the the land, in my opinion, the plaintiffs cannot claim to continue to use the facilities. Therefore, in order that the plaintiffs continue on the property, they have to establish that the decree of eviction passed against the lessee is vitiate by fraud as claimed by them. Perusal of the plaint shows that there are no allegations of fraud made against the landlord in obtaining the decree. The only allegation was that though the landlord knew that the plaintiffs are in possession, he has not joined them as party and that will not amount to fraud. In any case, before granting the order of temporary injunction, the Courts were obliged to record the finding that the plaintiffs have made out a strong prima facie case. As observed above, one of the reliefs claimed by the 10 plaintiffs is that decree is vitiated by fraud and there is no material on record to even indicate that there is any fraud involved and therefore, there could not have been finding on fraud recorded by the Courts below. So far as the possessory aspect is concerned, from the terms of the license agreement entered into between the oil company and the plaintiffs it is clear that the plaintiffs were never in possession of the property, they were merely permitted to use the land and the facilities erected by the lessee on the land for the purpose of running a petrol pump. In my opinion, therefore, the order of temporary injunction has been made by the Courts below in a case where there was no prima facie case made out. In fact, the suit was malafide and was filed with the sole intention to frustrate the decree obtained by the landlord against the lessee. I have quoted clause 4 and 5 above, they were relevant and material for deciding the nature of possession of the plaintiffs and those clauses have not been considered by the Courts below and therefore, the orders passed by the Courts also suffer from non application of mind to the relevant material on record. Thus, I find 11 that both the orders impugned in the petition are liable to be set aside. 4. In the result, therefore, the petition succeeds and the rule is made absolute in terms of prayer clause (b). No order as to costs. 5. At this stage, a request is made that execution of the decree in relation to which temporary injunction was sought be stayed. The request is opposed by the petitioners. The petitioners contend that the decree has actually been executed and the possession of the property was handed over by the lessee to the Judgment debtor and he also relies on the receipt issued for possession. In this view of the matter, therefore, in my opinion, it will not be appropriate, after having found that the suit was filed with malafide intention, to grant any indulgence to the respondents. The request is therefore, rejected. ---