IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 452 of 2010. Judgment reserved on 28.4.2011. Date of decision: 13.6.2011 Nasib Kumar …Petitioner. Versus Dev Dutt Sharma …Respondent. Coram The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting?1 No. For the petitioner: Mr. Naresh Thakur, Advocate. For the respondent: Mr. Sanjeev Kuthiala, Advocate. Deepak Gupta, J. 1. Respondent Dev Dutt Sharma (hereinafter referred to as the plaintiff) filed a suit being CS No. 29-1 of 2007 in the Court of learned Civil Judge (Junior Division), Amb, District Una. In this suit, Dev Dutt Sharma claimed that he was a tenant in possession of two shops owned by the defendant- present petitioner Nasib Kumar pursuant to an agreement dated 30.1.2004. It was claimed that he was regularly paying the rent, but the defendant Nasib Kumar was threatening to take forcible possession of the shops 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. and had also threatened to install locks on the shops. It : 2 : was, therefore, prayed that the defendant be restrained from taking forcible possession or installing a lock on the shops. Along with the main suit, the plaintiff had also filed an application for grant of an interim injunction and an ex- parte ad interim injunction was granted in favour of the plaintiff on 14.2.2007. 2. Notice of this suit was issued to the defendant, but it was reported that defendant had refused to accept service and he was proceeded against ex-parte on 27.2.2007. On 2.3.2007 an application under Order 9 Rule 7 CPC was filed for setting aside the ex-parte proceedings. Issues were framed in this application and evidence was led. This application was dismissed on 9.3.2007. Aggrieved by the order whereby his application was dismissed, defendant Nasib Kumar filed CMPMO No. 63 of 2007 and this petition was allowed by this Court on 2.11.2007 and the ex-parte proceedings against the defendant were set aside with all consequences. 3. Accordingly, the defendant was permitted to contest the case. The case of the defendant is that the plaintiff- tenant had not paid the rent for the months of January & February, 2007 and thereafter vacated the shops on 10.2.2007 and on 11.2.2007 the defendant had rented out the shops to some other person. : 3 : 4. In the meanwhile on 28.2.2007 the plaintiff Dev Dutt Sharma filed an application for appointment of a local commissioner. The local commissioner was ordered to be appointed with a direction to visit the spot and report whether any material was lying outside the premises and whether the shops were locked or open. Mr. Ajay Thakur,Advocate was appointed as local commissioner. The local commissioner submitted his report and stated that on 2.3.2007 he visited the spot in the presence of both the parties. They identified the shops in question. The local commissioner found that hardware, sanitary, electric and wooden materials were lying outside the shop premises. The shops which were locked were opened and in one shop a motor mechanic was repairing the motorcycle and in the other shop some material was lying. 5. Thereafter on 22.3.2007 Sh. Raj Kumar filed an application stating that he is in possession of the shop and the same had been rented out to him. His application was allowed and he was impleaded as a party in the suit. Thereafter the plaintiff filed an application under Section 94(e) of the Code of Civil Procedure alleging that the defendant had forcibly ousted him from the shop and thrown out his articles. The said application was allowed vide order dated 11.6.2008 passed by the learned Trial Court. This order was challenged by the defendant in this : 4 : Court and CMPMO No. 175 of 2008 was filed. A learned Single Judge of this Court found that the application under Order 39 Rules 1 and 2 CPC was still pending for final decision before the learned Trial Court and held that since the same had not finally decided, the learned Trial Court should have first disposed of the application before granting mandatory relief. Thereafter the application under Order 39 Rules 1 and 2 CPC was heard and decided by the learned Trial Court afresh on 12th September, 2008. This application was allowed and therefore, the order already passed in application under Section 94(e) of CPC stood revived. 6. The defendant filed an appeal against the order dated 12.9.2008 before the learned Addl. District Judge who held that the application under Order 39 Rules 1 and 2 CPC had become infructuous, since according to the averments made by the plaintiff in his application under Section 94(e) of CPC he had already been ousted prior to the passing of the order dated 12.9.2008. The plaintiff filed CMPMO No. 443 of 2009 before this Court and a learned Single Judge of this Court set aside the order of the learned Addl. District Judge and came to the conclusion that in view of the earlier orders passed by this Court, the learned Addl. District Judge had no jurisdiction or authority to say that the application filed under Order 39 Rules 1 and : 5 : 2 CPC had become infructuous. This order was accordingly set aside and the learned Addl. District Judge was directed to decide the appeal afresh. Thereafter the learned Addl. District Judge has passed a fresh order on 30.10.2010 dismissing the appeal of the defendant. He, however, declined mandatory injunction to the applicant. 7. Aggrieved by this order, the defendant has now filed the present petition under Article 227 of the Constitution of India. The main ground raised by Mr. Naresh Thakur, learned counsel for the petitioner is that since the plaintiff is not in possession of the shops, injunction could not have been granted in his favour particularly when the mandatory/temporary injunction had been declined. According to him the learned Courts below have not appreciated the facts in their true perspective. Further according to him, the plaintiff had himself vacated the shops and had filed the suit on false grounds. He further submits that since the shops have been leased out to another person, the rights of the newly added defendant will also be affected and, therefore, the order be set aside. 8. I have heard Mr. Naresh Thakur, learned counsel for the defendant-petitioner and Mr. Sanjeev Kuthiala, learned counsel for the respondent-plaintiff. 9. The case of the defendant in nutshell is that the plaintiff was a tenant in the shop on a monthly rent of Rs. : 6 : 650/-, but did not pay the rent for the months of January and February, 2007. When asked to pay the rent by the landlord, the tenant-plaintiff vacated the shops and handed over the possession of the same to the defendant on 10.2.2007. On the very next date the shops were let out to another person. The case of the plaintiff was that he was paying rent of Rs. 650/- per month for each shop and continued to send the same by cheques. According to the plaintiff, the defendant had threw out his articles and fittings of the shop after the stay order was passed by the learned Trial Court. Reliance is also placed on the report of the local commissioner which indicates that some material was lying outside the shops. 10. The main ground raised by Mr. Naresh Thakur, Advocate is that admittedly the plaintiff is not now in possession of the shops and no relief can be granted to him. In my view, it is not the date of decision of the application which is material in such a case, but the position as on the date of filing of the suit which is most relevant. A perusal of the report given by Mr. Ajay Thakur, Advocate shows that when he visited the spot on 2.3.2007, in one of the shops a motor mechanic was repairing motorcycle and in the other shop some materials of a courier, oil tin and steel tubes had been kept. It is also mentioned in his report that hardware, sanitary goods : 7 : electric and wooden materials were lying outside the shop and a list of 34 such articles were also given. According to his report both the shops were opened. The stand of the defendant is that one shop was let out on 11.2.2007 and second shop was rented out on 11.5.2007. However, the defendant in his reply to the application under Section 94(e) of CPC which was filed on 2.3.2007 had pleaded that the respondent has rented out the shop in dispute to some other person on 11.2.2007 which would mean that both the shops were rented out on 11.2.2007. However, in the written statement filed later on 4.3.2008 he stated that two shops has been separately rented out on 11.2.2007 and 11.5.2007. It is thus apparent that the shops were not rented out on 11.2.2007 and the defendant has taken up a false stand. On the date of the suit it appears that the defendant was not in possession of these shops. It is more than obvious that as held by the learned Courts below on the date of filing of the suit it was the plaintiff who was in possession of the shops. Case of the respondent is that the plaintiff had voluntarily vacated the shop premises on 10.2.2007. If that was the case there would have been some written agreement and there would have been no reason for the plaintiff to have filed the suit within 3 days. The stand of the defendant that he had already obtained possession of the shops does not appear to be correct. The : 8 : other material on record supports the version of the plaintiff is that he had been dispossessed after filing of the suit. If the petitioner-plaintiff had voluntarily given up his tenancy on 10.2.2007 why would he filed a suit on 13.2.2007. Therefore, both the Courts below were justified in allowing the application filed by the plaintiff. I find no reason to interfere in the aforesaid orders in exercise of the supervisory jurisdiction vested in this Court under Article 227 of the Constitution of India. Petition is, therefore, dismissed with costs assessed at Rs. 10,000/-. (Deepak Gupta) Judge 13th June, 2011. (Krn guleria)