Civil Revision No. 4366 of 2006 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 4366 of 2006 Date of decision: 28.08.2009 Sanjeev Kumar ....Petitioner versus Surinder Kumar ....Respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - None for the petitioner. Mr. Kuldip Sanwal, Advocate, for the respondent. *** VINOD K. SHARMA, J. (ORAL) This revision petition under Article 227 of the Constitution of India is directed against the order dated 2.8.2006, passed by the learned Additional District Judge, Gurdaspur, vide which the application moved by the petitioner, under Order 39 Rules 1 and 2 of the Code of Civil Procedure, in a pending suit, was ordered to be dismissed. The plaintiff/petitioner filed a suit for permanent injunction, restraining the defendant/respondent from dispossessing the petitioner Civil Revision No. 4366 of 2006 -2- from the shop in dispute, except with due process of law. Along with the suit, an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure, was also moved. On notice, the suit was contested, wherein a plea was taken by the defendant/respondent, that the petitioner was not tenant in the suit property, but had taken forcible possession and the possession of the petitioner was unauthorised. The learned trial Court, by taking into consideration the pleadings and documents on record, came to the conclusion, that it was yet to be proved by leading evidence, as to whether the possession of the plaintiff/petitioner over the shop in dispute, was unauthorised or he was the tenant under the defendant/respondent. The learned trial Court, by placing reliance on the judgment of this Court in Tarsem Singh and others Vs. State of Haryana and others, 2005(3) RCR (Civil) 645, held that the petitioner had a prima facie case, and that the balance of convenience was also in favour of the plaintiff/petitioner. The learned trial Court was further pleased to hold, that irreparable loss and injury was likely to be caused to the plaintiff/petitioner, in case, temporary injunction was not granted. The defendant/respondent preferred an appeal. The learned lower appellate Court came to the conclusion, that the learned trial Court ignored the pleadings as well as the documents on record. The learned lower appellate Court held, that the defendant/respondent was a non-resident Indian, and as per passport, which was placed on record showed that he never came to India in May, 2001, therefore, the plea of the petitioner being inducted as tenant by Civil Revision No. 4366 of 2006 -3- him stood belied. The learned lower appellate Court further held, that on an earlier occasion, the respondent-landlord had rented out the premises to a tenant, by a written rent note. Nothing was shown as to why the plaintiff/petitioner was inducted as tenant without execution of the written instrument. The learned appellate Court further held, that no material/receipt was placed to prove the payment of rent for the premises. The plea of running of business was rejected by observing, that the address of the shop was not mentioned. The learned appellate Court, thus, came to the conclusion, that as the possession of the petitioner was not established, therefore, he was not entitled to injunction. The appeal was allowed, and order passed by learned trial Court was set aside. On consideration, I find that the impugned order cannot be sustained. Once, it was not in dispute that the plaintiff/petitioner was in possession of the property in dispute, and further plea of tenancy was taken, in support documents were also placed on record. The factum of tenancy could only be proved after the parties had led evidence. The stand could not be rejected on presumption, by the learned lower appellate Court, when the learned trial Court had held that the possession of petitioner was prima facie established as that of tenant. It is well settled law, that even a person in unauthorised possession has to be evicted by following due process of law. The revision is allowed, the judgment passed by the learned appellate Court is set aside and that of the learned trial Court is restored, but with no order as to costs. Civil Revision No. 4366 of 2006 -4- However, keeping in view the fact that the plaintiff/petitioner is said to be in unauthorised occupation of the shop, the learned trial Court is directed to expedite the hearing of the case and dispose of the suit preferably within a period of six months, from the date of receipt of certified copy of this order. (Vinod K. Sharma) Judge August 28, 2009 R.S.