IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL REVISION APPLICATION No 844 of 2000 For Approval and Signature: Hon'ble MR.JUSTICE M.H.KADRI ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- MAHENDRAKUMAR CHHOTALAL SHAH Versus DEVIBEN KAILASHNATH SINGHANIA -------------------------------------------------------------- Appearance: Mr. S.M. Shah, for, MR KETAN D SHAH for Petitioner Mr.M.G. Gandhi for MR RAJESH M AGRAWAL for Respondent -------------------------------------------------------------- CORAM : MR.JUSTICE M.H.KADRI Date of decision: 04/05/2001 C.A.V. JUDGEMENT 1. The petitioner (original plaintiff), by filing this Civil Revision Application under Section 29(2) of the Bombay Rents (Hotel & Lodging House Rates Control) Act, 1947 ( 'Act' for short), has challenged the judgment and order dated August 18, 2000 passed by the Appellate Bench of the Small Causes Court, Ahmedabad, in Appeal From Order No.20 of 2000, whereby, the Appellate Bench, has allowed the appeal filed by the defendant with costs and vacated the order dated February 10, 2000, passed by the learned Judge, Court No.4, Small Causes Court, Ahmedabad, below application Exh.5 in H.R.P. Suit No.1399 of 1999, granting interim injunction in favour of the petitioner-plaintiff restraining the defendant from dispossessing the plaintiff from the shop situated in the upper-ground floor bearing Shop No.4, in Sun Plaza Complex, Navrangpura, Ahmedabad. The Appellate Bench, while allowing the appeal filed by the respondent-defendant, passed the following order: "1. Appeal is allowed with costs. 2. The order of the trial court dated 10.2.2000 below Exh.5 is hereby set aside. 3. The respondent-plaintiff is directed to remove his garments and other articles pertaining to his alleged business from the suit premises and hand over the vacant physical possession along with the key to the plaintiff (sic-defendant). " 2. The brief facts leading to filing of the present Civil Revision Application are as under: 3. As per the averments made in the plaint of H.R.P. Suit No.1399 of 1999, the petitioner (original plaintiff) is carrying on business of ready-made garments in whole-sale and retail in the trade name of 'All Wear Creations' and was issued Sales Tax No.12841191, dated August 25, 1988. According to the petitioner, he started selling ready-made garments in Shop No.4, upper ground floor, Sun Plaza Complex, Navrangpura, Ahmedabad, (hereinafter referred to as 'suit shop' for the sake of brevity) from November 13, 1999. According to the plaintiff, the suit shop was let out to him by the respondent on November 10, 1999 on a monthly rent of Rs.4000/- excluding liability to pay tax, which was payable by the landlord. The petitioner claimed that he had paid advance rent of one month commencing from November 10, 1999 to December 9, 1999, but the respondent did not issue receipt of the amount of advance rent and had assured that she would subsequently issue receipt. According to the petitioner, the said amount was received by the respondent in presence of witnesses. It is the case of the petitioner that, after the shop was let out to him on November 10,999, he started his business in the suit shop on November 13, 1999 and the opening ceremony was also held on the same day. As per the averments made in the plaint, the husband of the respondent, Kailashnath Radhavallabh Singhania, was previously carrying on business of ready-made garments in the name of 'Aakashkrupa' and the petitioner was helping the husband of the respondent in the business of ready-made garments as well as supplying garments to him. As per the case of the petitioner, the husband of the respondent had not made payments of huge amount for purchase of ready-made garments from the petitioner and, therefore, because of good relation between the parties, no deposit or advance rent was demanded by the respondent. As per the averments made in the plaint, the petitioner was under an apprehension that the respondent was trying to sell the suit shop by taking a huge amount and was trying to dispossess the petitioner from the suit shop since last two days before filing of the suit. According to the petitioner, the respondent, with the help of her relatives, was trying to pressurize the petitioner to vacate the premises and was giving threats to vacate the suit shop. It is also averred in the plaint that the husband of the defendant i.e. Kailashnath Radhavallabh Singhania, closed his business on September 30, 1999 and started selling the remaining stock of ready-made garments by a clearance sale from November 4, 1999, because the business was to be completely closed from November 4, 1999, and, accordingly, an advertisement was also published in a daily newspaper. Under the circumstances, the petitioner, therefore, has filed H.R.P. Suit no.1399 of 1999 against the respondent on November 21/22, 1999, for permanent injunction restraining the respondent, her relatives and agents from dispossessing the petitioner from the suit shop which was let out to him by the respondent. Along with the suit, the petitioner filed an application Exh.5 for interim injunction. The petitioner also filed an application Exh.7 for appointment of Court Commissioner for local inspection of the suit shop. The Court passed an order on the application Exh.7, and appointed Court Commissioner to carry out local inspection of the suit shop. Accordingly, the Court Commissioner inspected the suit shop on November 22, 1999, and submitted his inspection report along with the sketch of the suit shop in the lower Court. 4. On receiving summons from the Small Causes Court, the respondent appeared and filed her written statement-cum-reply Exh.16 to the application for interim injunction as well as objections against the report of the Court Commissioner and, by filing a counter claim, made prayer to the Court that the ad-interim injunction granted against her be vacated forthwith and the petitioner be, by a mandatory injunction, restrained from entering into the suit shop and be directed to remove all the goods and other articles belonging to him which were lying in the suit shop. The respondent, in her reply Exh.16, contended that it is not true that the petitioner had started retail business of selling ready-made garments in the suit shop on November 13, 1999. It was averred that the petitioner was carrying on his business at his residence situated at 9, Prakurti Apartments, Near : H.L. College, Navrangpura, Ahmedabad, and not at the suit shop. It is averred that the family members of petitioner and respondent had developed good relation with each other for the last four years and, therefore, the petitioner was in know of the fact that the husband of the respondent was having financial difficulties, as he was not doing well in his business in the suit shop and, therefore, the husband of the respondent had sold the suit shop to one Linaben Vijaybhai Vora by agreement dated September 23, 1999. It is averred that the story about the petitioner having become tenant of the suit shop from November 9, 1999 on monthly rent of Rs.4000/and the petitioner having paid advance rent of one month, i.e from November 10, 1999 to December 10, 1999, was false and cooked up. It is further averred that, after executing the agreement to sell of the suit shop, the husband of the respondent had given an advertisement in daily newspaper, Gujarat Samachar, on November 4, 1999, that, as the business of ready-made garments in the shop 'Aakashkrupa' was to be closed, a clearance sale will begin from November 4, 1999. It is further averred that because of good family relations between the petitioner and the respondent, the petitioner used to take and keep keys of the suit shop and, in absence of respondent's husband, was taking part in the clearance sale since November 4, 1999. It is stated that the petitioner was fully aware and conversant with the business and the financial crisis of the husband of the respondent and, by taking advantage of the situation, he has made out a false story of having become tenant of the suit shop and obtained ex-parte order of appointment of Court Commissioner. It is averred that ready-made garments and other goods lying in the suit shop belonged to the husband of the respondent, which indicated that the petitioner's possession was not genuine. It is mentioned that the opening ceremony of the suit shop was not held on November 13, 1999, and the invitation card produced by the petitioner was merely a show to create evidence against the respondent and no such opening ceremony was held on November 13, 1999. The respondent, further, averred that, till today, there was a signboard of 'Aakashkrupa' at the suit shop, which was deliberately not noted by the Court Commissioner while carrying out the inspection of the suit shop and, therefore, the report of the Court Commissioner should not be accepted. The respondent, by filing counter claim in the suit filed by the petitioner, prayed for permanent injunction restraining the petitioner or his agents from entering the suit shop and for direction to the petitioner to remove his goods from the suit shop. 5. It be stated that, along with the suit, the petitioner had produced documentary evidence consisting of certificate issued by the Sales Tax Department, affidavits of Vinodbhai Maganbhai Shah, Mehulkumar Mahasukhlal Shah, Dilipbhai A. Barot and Jayeshbhai Maganlal Shah in support of his case that the petitioner was tenant of the suit shop and the opening ceremony of the suit shop was held on November 13, 1999 and the petitioner was carrying on business of ready-made garments in the name of 'Allwear Creations' in the suit shop. 6. The respondent, with her written statement Exh.16, produced certificate issued by the Sales-tax Department dated March 28, 1995, indicating that the respondent was carrying on business in the trade name of 'Aakashkrupa' in the suit shop, agreement of sale of the suit shop executed on September 23, 1999 by the respondent in favour of Linaben Vijaybhai Vora, photographs of suit shop, and affidavits of Vijaybhai R. Vora, husband of Linaben Vora, Sanjaybhai Biharilal Shah, Anilbhai Bhagwanbhai Kosti, Jagdishbhai Nandkishore Agrawal, and Jayant Somakant Mayure in support of her case that the husband of the respondent was carrying on the business in the suit shop in the trade name of 'Aakashkrupa' and no opening ceremony of Allwear Creations in the suit shop had taken place on November 13, 1999 and as the husband of the respondent was not doing well in the business of selling ready-made garments, the suit shop was sold by an agreement on September 23, 1999. 7. The learned Judge, Court No.4, Small Causes Court, Ahmedabad, after appreciating the documentary evidence produced by the parties, concluded that there was a dispute with regard to suit shop between the petitioner and the respondent and, as the report of the Court Commissioner indicated that the petitioner was in possession of the suit shop, his possession is required to be protected. The learned Judge did not accept the case of the respondent that the agreement to sell was executed in September 1999 and the respondent had accepted a cheque of Rs.51,000/- towards earnest money. The learned Judge, mainly by placing reliance on the Court Commissioner's report, held that, since the petitioner was in possession of the suit shop, his possession required to be protected til final disposal of the suit. The learned Judge, by his judgment and order dated February 10,2000, confirmed the ad-interim injunction granted earlier in terms of paragraph 15(A) of application Exh.5. 8. The order dated February 10, 2000, passed by the learned Judge, Court No.4, Small Causes Court, Ahmedabad, below application Exh.5, in H.R.P. Suit No. 1399 of 1999, was challenged by the respondent before the Appellate Bench of the said Court by filing Appeal From Order No.20 of 2000, under order 43 Rule 1 of the Code of Civil Procedure, 1908 ('Code' for short). The Appellate Bench, on appreciation of evidence produced by the parties and the arguments advanced by the learned advocates for the respective parties, in paragraph 19, at page 18, held that the order of the trial court granting interim injunction required to be interfered with, because of the following reasons: I. Very good relation between the plaintiff and the defendant's husband is admitted by the plaintiff. II. It is admitted that the plaintiff was not merely supplying the goods to AAakashkrupa business of defendant's husband but the plaintiff was also helping him in the said business. III. The defendant-appellant gave advertisement on 4.11.1999 for sale of Readymade Garments with an intention to close the business of Aakashkrupa. IV It is not correct to say that the defendant has admitted handing over the possession by giving key. On pages 5 and 6 of the written statement Exh.16 what is stated is that due to good relations with the plaintiff and the fact that most of the Readymade goods were purchased from the plaintiff and as he was helping the business of Aakashkrupa an additional key set was given to the plaintiff for disposal of Readymade Garments. This averment does not amount to handing over possession much less as a tenant. V. The plaintiff's witnesses except one are his near relatives. VI. The claim is that premises was rented on 10.1.1999 and inauguration was made on 13.11.1999. There is absolutely no allegation made as to why such a close friend was not invited in the inauguration. It is not the case that inauguration was done with a simple ceremony. In fact even invitation cards were distributed. In this context argument it is the choice of the plaintiff to whom he should extend the invitation is without merits. this must be read in the light of the allegation in the plaint that huge amount was due from the defendant's husband. So, this conduct clearly shows some ulterior motive on the part of the plaintiff. VII Even though the alleged inauguration took place on 13.11.1999, the board of Aakashkrupa was still in the suit premises on the date of the suit which is seen as per the photographs produced by the defendant and as per commissioner's report the board of the plaintiff's business was still in the suit shop. This is against the natural human conduct. VIII. The circumstance is on record that the defendant entered into an agreement on 23.9.1999 for the sale of suit premises to third party for Rs.10,11,000/-. The argument of Mr. Shah that his client was rented premises on 4.11.1999 and his client is not supposed to know why the landlord was required to sell the premises subsequently. But the said circumstance is not subsequent to 4.11.1999 but it is prior to that date. We have already discussed that we are not concerned with legality or otherwise of the transaction between the defendant and third party. At this stage, there is no reason why the said circumstance, namely, that some kind of agreement was entered into between the defendant and third party on 23.9.1999, should not be believed. It will reflect the intention of the defendant and then the defendant intended and entered into such agreement, the natural course of hR let the premises to third person. After summarizing above reasons, the Appellate Bench held that (i) the petitioner had failed to establish prima-facie case that he was in possession of the suit shop as a tenant; (ii) no irreparable loss was going to be caused to the petitioner; (iii) balance of convenience was also not in his favour and, therefore, the trial court had committed error in appreciating the facts and circumstances of the case and had illegally interfered with the possession of the defendant on the strength of Court Commissioner's report. The Appellate Bench has granted the prayer made by the respondent in her written statement-cum-counter claim by holding that the suit filed by the petitioner was an abuse of process of the Court and directed the petitioner to remove his garments and other articles lying in the suit shop relating to his alleged business and hand over the vacant and peaceful possession along with keys to the respondent. The said order of the Appellate Bench in Appeal from Order No.20 of 2000 has been challenged by the original plaintiff in this Court by filing this Civil Revision Application under Section 29(2) of the Act. 9. At the request of learned advocates for respective parties, this court had called for Record and Proceedings from the Courts below so as to finally dispose of this Civil Revision Application at the admission stage. 10. Learned counsel, Mr. S.M.Shah, for learned advocate Mr. Ketan D. Shah for the petitioner, has vehemently submitted that the Appellate Bench has erred in interfering with the findings recorded and the interim injunction granted by the trial court. It is submitted that the powers of the Appellate Court under Order 43 Rule 1 of the Code are very limited, and, as the trial court has exercised its discretion properly, the Appellate Bench ought not to have interfered with the discretionary order of injunction granted under Order 39 Rule 1 of the Code. The learned advocate for the petitioner, in support of the above contention, has placed reliance on the decisions in the cases of (i) Wander Limited and another vs. Antox India P. Ltd. reported in 1990 (Supplementary) SCC p.727, (ii) N.R.Dongre and others vs. Whirlpool Corporation and another, reported in (1996) 5 Supreme Court Cases 714, (iii) Bureau of Indian Standard vs. Western India Engineering Company, reported in 1998 (2) G.L.H. 863. Learned advocate Mr. S.M. Shah, in support of his contention that the party in possession should not be disturbed without due process of law and his possession should be protected during pendency of the trial, has placed reliance on the decisions in the cases of (i) Ranjankumar Vanmanrao Nandker vs. Sarvajanik Hindu Dharashala, reported in 1985 GLH (UJ) 56, (ii) Smt. Rajnibai @ Mannubhai vs. Smt.Kamla Devi & Others, reported in JT 1996 (1) SC 706, (iii) Prataprai N. Kothari vs. John Braganza, reported in AIR 1999 Supreme Court 1666, (iv) Molar Mal vs. M/s. Kay Iron Works (P) Ltd, reported in AIR 2000 Supreme Court 1261, and (v) Badri Prasad vs. The State of Madhya Pradesh, reported in AIR 1970 Supreme Court 706. The learned counsel for the petitioner, therefore, submitted that the present Civil Revision Application be allowed and the impugned judgment and order of the Appellate Bench be quashed and set aside. 11. On the other hand, the learned counsel Mr. M.B. Gandhi for learned advocate Mr. R.M. Agarwal for the respondent, has submitted that the trial court did not appreciate the documentary evidence produced by the respondent and had granted injunction only relying upon the ex-parte report of the Court Commissioner and the affidavits produced by the petitioner. It is further submitted by the learned advocate for the respondent that the order of the trial court was, ex-facie, illegal and, therefore, the Appellate Court was justified in interfering with the same. The learned advocate for the respodnent has further submitted that no injunction could be granted in favour of a trespasser and against the true owner. It is further submitted by the learned advocate for the respondent that the trial court had, without recording a prima face case, granted injunction in favour of the petitioner without appreciating the fact that the petitioner was not in settled possession in the suit shop. It is further submitted by the learned advocate for the respondent that the petitioner had failed to establish prima facie case that he was tenant of the suit shop. The learned advocate for the respodnent has further submitted that the trial court had not followed the settled principles of law for granting injunction and the Appellate Court was justified in interfering with the said order and, therefore, the present Civil Revision Appplication be dismissed. 12. I have considered the contentions raised at the Bar and the evidence on record. The question, which requires to be considered in the present case, is whether the petitioner has, prima facie, established that his possession is legal, i.e. as a tenant, and his possession is settled. The Supreme Court, in the case of Munshi Ram and others vs. Delhi Administration, reported in AIR 1968 Supreme Court 702, had an occasion to deal with the question relating to powers of a true owner to dispossess a trespasser who was not in a settled possession. In paragraph 14, at page 705, it is observed by the Supreme Court as under: "It is true that no one including the true owner has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such case unless he is evicted in due course of law he is entitled to defend his possession even against his original owner. But stray or even intermittent acts of trespass do not give such a right against the true owner. The possession which a trespasser is entitled to defend against the rightful owner must be a settled possession extending over a sufficiently long period and acquiesced in by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may re-enter and reinstate himself provided he does not use more force than necessary. Such entry will be viewed only as a resistance to any intrusion upon possession which has never been lost. The persons in possession by a stray act of trespass, a possession which has not matured into settled possession, constitute an unlawful assembly, giving right to the true owner, though not in actual possession at the time to remove the obstruction even by using necessary force." 13. The trial court, while granting ad-interim injunction had only appreciated that there was a dispute with regard to possession between the petitioner and the respondent and the report of the Court Commissioner indicated that the petitioner was found in possession of the suit shop at the time of carrying out local inspection of the suit shop. As per the petitioner's own case, a tenancy was created on November 10, 1999 and he had held opening ceremony of the suit shop on November 13, 1999, whereas the present suit is filed on November 22,1999. It means that within 12 days of creation of so-called tenancy, the petitioner has filed suit and claimed reliefs mentioned earlier. The claim of the petitioner that he is tenant of the suit shop is seriously contested by the respondent. Possession of the suit shop for 12 days cannot be construed to mean that the petitioner is in settled possession of the suit shop and that too acquiesced in by the respondent. The petitioner had produced affidavits of his relatives and of the persons of his choice in support of his case that the opening ceremony was held on November 13, 1999 and has also produced a copy of the invitation card of the opening ceremony. As against that, the respondent had produced affidavits of independent persons who own shops adjoining the suit shop indicating that the suit shop was already sold by an agreement and no such opening ceremony was held on November 13, 1999. The learned trial judge had not given a specific finding that there was a prima facie case in favour of the petitioner. The learned trial judge has only recorded a finding that there is a word against word and the issue about the possession is triable. The learned trial judge had not focussed his attention to the documentary evidence led by the respondent and the same is ignored. In Shree Jain Swetambar Terapanthi Vid(S) vs. Phundan Singh and others, reported in (1999) 2