1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6496 OF 2011 Shri.Raghunath Manik Late .. Petitioner V/s Shri.Gangadhar Apkuti & Anr. .. Respondents Mr.S.D.Patil for the petitioner. CORAM: R.G.KETKAR, J. DATE: . 21st September, 2011. P.C.: 1. Heard Mr.S.D.Patil, learned counsel for the petitioner. The petitioner - original Defendant No.1 has challenged the judgment and order dated 02.01.2009 below Exhibit 5 in Civil Suit No.223 of 2007 as also the judgment and order dated 28.01.2011 passed by the learned District Judge -5 in Misc.Civil Appeal No.108 of 2009. By these orders, the Courts below allowed the application made by the Respondent No.1-original plaintiff and directed the petitioner herein to hand over possession of Room No.F/74 , Sector No.3, Airoli, CIDCO Colony, New Mumbai (for short the suit premises). The parties shall hereinafter be referred to as per their original status in the trial Court. 2. The plaintiff instituted the suit for declaration that he be declared 2 as a tenant in the suit premises and that Defendant No.1 be directed to enter into the tenancy agreement with the plaintiff and pass the receipts every month. The said suit was instituted on 24.08.2007. During the pendency of the suit, plaintiff took out application at Exhibit 5 under Order 39 Rule 1 and 2 read with section 151 of the Code of Civil Procedure, 1908 (for short C.P.C.). Before that application could be heard, it is the case of the plaintiff that he was forcibly dispossessed by Defendant No.1 on 13.10.2007. The Plaintiff applied on 24.10.2007 for amendment of the plaint as also the application at Exhibit 5. That application was allowed on 30.10.2007 In the amended plaint, plaintiff prayed for mandatory injunction directing the Defendant No.1, his agents and servants to restore the possession of the suit premises to the plaintiff. He also amended the application at Exhibit 5 contending interalia that on 13.10.2007 the Defendants and the workers belonging to the Shivsena party alongwith 4, 5 gundas broke open the lock of the suit premises and damaged the household articles. They threw the articles out of the house and they also threatened to break hands and legs of the plaintiff’s wife if she tried to re-enter the suit premises. The wife of the plaintiff gave complaint in 3 writing in Rabale Police Station on 16.10.2007. Even earlier on 13.01.2007 the plaintiff had given N.C.complaint to Rabale Police Station against Defendant No.1 being N.C.No.101 of 2007. The plaintiff therefore claimed mandatory injunction directing the Defendants to restore possession of the suit premises to the plaintiff. 3. Defendant No.1 resisted the application by filing reply dated 13.11.2007 at Exhibit 25. Defendant No.1 contended that the plaintiff was inducted in the suit premises on the basis of Leave & Licence Agreement dated 03.01.2000 for a period of 11 months. The plaintiff resided in the suit premises from 01.01.2000 to 30.11.2000. He handed over possession on 01.12.2000. The suit premises was lying vacant from 01.12.2000 to 31.12.2000. Thereafter on 01.01.2001 Leave and Licence Agreement was entered into between the parties for a period from 01.01.2001 to 30.11.2001. After the expiry of licence period, the plaintiff handed over possession on 01.12.2001. The suit premises was lying vacant from 01.12.2001 to 31.12.2001. On 01.01.2002 Leave & Licence Agreement was entered into between the parties for a period of 11 months. The plaintiff was residing in the suit premises from 4 01.01.2002 to 30.11.2002. On 01.12.2002 he surrendered the premises to Defendant No.1. From 01.12.2002 to 31.12.2002 suit premises was lying vacant. On 27.12.2002 Leave & Licence Agreement was entered into between the parties for a period of 11 months and accordingly, the plaintiff was residing in the suit premises from 01.01.2003 to 30.11.2003. On 01.12.2003 the plaintiff handed over possession of the suit premises to Defendant No.1. From 01.12.2003 to 31.12.2003 the suit premises was lying vacant. On 29.12.2003 Leave & Licence Agreement was executed between the parties for a period from 01.01.2004 to 30.11.2004. After the expiry of licence period, the plaintiff handed over possession to Defendant No.1 on 01.12.2004. Suit premises was in possession of Defendant No.1 from 01.12.2004 to 31.12.2005. Again on 01.01.2006 under the Leave & Licence Agreement for a period of 11 months the plaintiff was residing in the suit premises from 01.01.2006 to 30.11.2006. Defendant No.1 further contended that even after expiry of licence period from 01.12.2006, the plaintiff did not hand over possession. Though the plaintiff assured Defendant No.1 that he will hand over possession, he did not abide by the assurances. In view of this, in the presence of witnesses on 5 22.08.2007 the plaintiff gave in writing that within 15 days, i.e. on or before 07.09.2007 he will hand over vacant and peaceful possession of the suit premises to Defendant No.1. Accordingly, on 12.10.2007 in the presence of witnesses, plaintiff handed over vacant and peaceful possession of the suit premises to Defendant No.1. Thereafter on 14.10.2007 Defendant No.1 entered into Leave & Licence Agreement with Defendant No.2 Ulhas Dhondu Farde who is presently in possession of the suit premises. Defendant No.1 also denied all the adverse allegations made by the plaintiff in the application at Exhibit 5. 4. The learned trial Judge appointed the Court Commissioner and on 10.12.2007 the Court Commissioner issued notice to the Advocates of the plaintiff and the Defendants requesting them to remain present alongwith the plaintiff and the Defendants while doing the commission work of the suit premises. Accordingly, he visited the suit premises when the learned Advocate for the plaintiff and the learned Advocate for the Defendants were present. Defendant No.1 was however absent, Defendant No.2 was present. The Court Commissioner submitted his report on 27.12.2007. In Paragraph IX of that report, the Court Commissioner recorded that 6 certain articles lying in front room were claimed by the plaintiff. Similarly, in paragraph XI it was recorded that certain articles lying in the inner room were claimed by the plaintiff. 5. On the basis of material on record the learned trial Judge allowed the application of the plaintiff by the judgment and order dated 02.01.2009. Aggrieved by that order, Defendant No.1 preferred Misc.Civil Appeal, which also came to be dismissed. Against these two orders, Defendant No.1 has filed this petition. 6. Mr.Patil, submitted that the plaintiff alleged that he was dispossessed illegally from the suit premises on 13.10.2007. However, the application for interim relief was amended and the interim relief of mandatory injunction was sought only on 30.10.2007 i.e.after 17 days from the alleged dispossession. He therefore submitted that this was not a fit case for issuing mandatory injunction. He further submitted that in the amended paragraph 4(b) of the plaint, plaintiff alleged that the household articles were thrown out of the house viz. the suit premises. However, in the report made by the Court Commissioner on 27.12.2007 i.e.to say nearly after two months, some of the articles of the plaintiff were found inside the suit premises. The plaintiff 7 has not explained as to how these articles were found in the suit premises. This is more so when it is the plaintiffs own case that the articles were thrown out of the suit premises. He also contended that the plaintiff has executed writing dated 22.08.2007 in the presence of the witnesses whereunder he assured to hand over possession on or before 07.09.2007. Accordingly, he has handed over vacant and peaceful possession of the suit premises on 12.10.2007 in the presence of the witnesses and thereafter Defendant No.1 inducted Defendant No.2 on 14.10.2007 under the Leave & Licence Agreement. He therefore submitted that the plaintiff is not entitled to claim mandatory injunction. Finally he submitted that having regard to the judgment of the Apex Court in the case of Dorab Cawasji Warden V/s Coomi Sorab Warden & Ors., (1990) 2 SCC 117, the Courts below committed serious error in issuing mandatory injunction particularly when the plaintiff did not make out a strong case for trial. The plaintiff did not make out the case of higher standard than the prima facie case for issuing mandatory injunction. 7. I have considered submissions advanced by Mr.Patil. In the first place, on Defendant No.1’s own showing the plaintiff was 8 inducted on the basis of leave and licence agreement dated 03.01.2000 and the last leave and licence agreement was executed on 01.01.2006 which was for the period from 01.01.2006 to 30.11.2006. Thus, the plaintiff was in possession of the suit premises right from the year 2000. Secondly, the plaintiff instituted suit on 24.08.2007 for declaration of his tenancy and in paragraph 4 he asserted that his signature was obtained on a blank paper and he was threatened to leave the suit premises within five days. The wife of the plaintiff had filed complaint in writing on 16.10.2007 to Rabale Police Station. So far as the submission made by Mr.Patil that the application seeking mandatory injunction was made on 30.10.2007 i.e.after almost 17 days, is concerned, the same is without any substance. The plaintiff took out application for amendment of the plaint as also application at Exhibit 5 on 24.10.2007. The said application was allowed on 30.10.2007. In this behalf one cannot expect the plaintiff to immediately move the Court particularly when his wife had made a complaint and obviously the plaintiff was awaiting the outcome of the Police action pursuant to that complaint. 8. In so far as other submission that the articles were found inside the 9 suit premises, particularly when the case of the plaintiff is that the articles were thrown out of the suit premises is concerned, I do not find any substance in this contention. In the first place, the Defendant No.1 did not remain present at the time of commission work. Secondly, the Defendant No.1 also did not submit any objection to the Court Commissioner’s report. It is therefore not open to Defendant No.1 now to challenge the report of the Court Commissioner. Thirdly, so for as the case of the Defendant No.1 that the plaintiff on his own volition handed over possession of the suit premises on 12.10.2007 is concerned, that is not at all acceptable for more than one reason. In the first place, the plaintiff instituted suit on 24.08.2007 for declaration of tenancy . It is in these circumstances inconceivable that the plaintiff will surrender possession of the suit premises on 12.10.2007. Secondly, so far as the case of Defendant No.1 that on 22.08.2007 the plaintiff gave writing in the presence of witnesses and on 12.10.2007 surrendered possession of the suit premises in the presence of witnesses is concerned, the Defendant No.1 has not filed affidavit of any such witnesses substantiating the alleged writing of 22.08.2007 or surrendering the possession of the suit premises on 10 12.10.2007. If the Defendant No.1 had obtained writing from the plaintiff on 22.08.2007 for surrendering the possession, it was expected of Defendant No.1 to obtain similar writing at the time of plaintiff surrendering the suit premises on 12.10.2007. No such writing is produced by Defendant No.1 about the plaintiff surrendering possession on 12.10.2007. Even no affidavit of any witnesses about surrendering possession by the plaintiff on 12.10.2007 is filed. It is in these circumstances, the Courts below came to the conclusion that during pendency of the suit, the plaintiff was illegally dispossessed by defendant No.1. Even the case made out by Defendant No.1 that on 14.10.2007 he inducted Defendant No.2 was not substantiated by producing any document. 9. The learned counsel for the petitioner strenuously contended that the Courts below were not justified in issuing the mandatory injunction as no case was made out by the plaintiff. In support of his submission, he relied upon the case of Dorab V/s.Coomi (supra). The Apex Court has laid down guidelines while issuing mandatory injunction in Paragraph No.16 of that report, which reads as under:- “16. The relief of interlocutory mandatory injunctions are thus 11 granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are: (i) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction. (ii) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money. (iii) The balance of convenience is in favour of the one seeking such relief.” 10.In the instant case, as noted earlier, at the time of institution of the 12 suit, the plaintiff was in possession. It is the case of the plaintiff that he was illegally dispossessed on 13.10.2007 and on the other hand it is the case of the Defendant No.1 that he surrendered suit premises voluntarily on 12.10.2007. Both the courts below have prima-facie held that the plaintiff has been illegally dispossessed from the suit premises. It is also material to note that Defendant No.2 did not file appeal challenging the order of the learned trial Judge, particularly when Defendant No.1 had inducted him on 14.10.2007. As observed in paragraph 16 of the Apex Court judgment, the relief of interlocutory mandatory injunction is granted to preserve or restore the status quo of the last non contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. 11.Considering the guidelines laid down in Paragraph No.16 of that report, prima-facie it has to be held that if the mandatory injunction is not issued it will cause irreparable loss or serious injury to the plaintiff, which normally cannot be compensated in 13 the terms of money. It has also to be held that the balance of convenience is in favour of the plaintiff who is seeking the relief of mandatory injunction. 12.In the light of aforesaid discussion, I do not find that the Courts below have committed any error of law apparent on the face of record. It also cannot be said that the impugned orders suffer from any perversity. Considering the conduct of Defendant No.1 and having regard to the circumstances of the case, I do not find that this is a fit case for invocation of any powers under Article 227 of the Constitution of India. The petition fails and the same is dismissed. (R.G.KETKAR, J.)