C.R. No. 4593 of 2010 (O&M) [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.R. No. 4593 of 2010 (O&M) Date of Decision: May 3, 2011 Pritam Singh …..Petitioner Vs. Smt.Karamjit Kaur and others …..Respondents CORAM: HON’BLE MR. JUSTICE M.M.S. BEDI. -.- Present:- Mr.H.K. Brinda, Advocate for the petitioner. Mr.Jagjit Singh, Advocate for respondent No.1. -.- M.M.S. BEDI, J. (ORAL) The petitioner- Pritam Singh claiming himself to be in possession as tenant had filed a suit for injunction restraining the defendant- respondents from interfering in the peaceful possession, occupation and running Feed Store under the name and style of Swami Feed Store in shop No. 1 bearing M.C. No. 1685/E, owned by plaintiff- respondent situated within the Municipal Limits of Municipal Committee Rupnagar. C.R. No. 4593 of 2010 (O&M) [2] Application for interim injunction filed by the petitioner was allowed. Copy of the order passed by the trial Court granting temporary injunction to the plaintiff- petitioner has been placed on record as annexure P-3. A perusal of the said order indicates that the defendant- respondents have claimed that the plaintiff- petitioner is not a tenant but is merely a mortgagee in possession of the suit property. While granting interim injunction to the petitioner, the trial Court has ordered that the defendant- respondents are restrained from forcibly and illegally dispossessing the plaintiff- petitioner from the suit property except by adopting due process of law. The plaintiff- petitioner thereafter filed an application under Order 39 Rule 2A CPC for taking action against the respondents for violating the orders of the interim injunction claiming that the shutter and lantal of the shop have been damaged. The said application is pending adjudication. During the pendency of the application under Order 39 Rule 2A CPC, another application was filed by the petitioner for permission to repair the shutter of the shop and for restoration of the electric connection in the shop, claiming that the respondents had broken the shutter of the shop and disconnected the electric connection of the shop. The civil Court vide order dated June 15, 2010 has dismissed the said application on the ground that the tenant can file a separate application to restore the amenities and that in case the application is allowed, it will cause prejudice to the respondents. Counsel for the petitioner has challenged the order dated June 15, 2010 passed by the trial Court on the ground that a grave injustice is C.R. No. 4593 of 2010 (O&M) [3] being caused to the plaintiff-petitioner during the pendency of the civil suit for injunction and during the pendency of an application under Order 39 Rule 2A CPC the respondent- landlord in a high-handed manner taken steps to pressurize the petitioner to vacate the shop by adopting a clever device. Counsel for the defendant- respondent No.1 has contended that the application under Order 39 Rule 2A CPC is pending and it is yet to be determined whether any act of violation of interim injunction has been committed. He has also submitted that the revision petition has been filed regarding shop No.1685 whereas the main suit is regarding shop No.1686. I have heard counsel for both the parties. The scope of interference in the interim order passed by the trial Court is very meager but taking into consideration the totality of the circumstances and report of Local Commissioner appointed by the trial Court, it is apparent that the plaintiff- petitioner is in possession of the shop in dispute and bags of cattle feed are stored in the shop in dispute. The photographs taken by the Local Commissioner indicate that the shutter has been damaged and a hole has been made in the roof of the shop in dispute. The short question which arises for determination at the present stage is whether aggrieved party who has got an interim injunction in his favour can be made to wait till the final adjudication of the suit or till the final adjudication of the application under Order 39 Rule 2 A CPC to enjoy the peaceful possession of the subject matter of the suit, when it is prima facie apparent that an attempt is being made in a high-handed manner by the owner or landlord of the property in C.R. No. 4593 of 2010 (O&M) [4] dispute making it difficult for an occupant to use the property. Considering the totality of the circumstances and even admitting the claim of the defendant- respondents that the plaintiff-petitioner is in possession of the property as a mortgagee, the rights of the mortgagee in possession under Section 72 of the Transfer of Property Act, (for short ‘the Act’) and even his liability under Section 76 of the Act cannot be ignored. Under Section 72 of the Act, a mortgagee in possession has got a right to spend money if necessary for the preservation of the mortgage property to prevent it for destruction (Section 72 b). As per Section 76 of the Act, the mortgagee is also required to manage the property as a person of ordinary prudence would manage it as if it were his own. Irrespective of the fact whether the rights of the petitioner are governed by the provisions of East Punjab Urban Rent Restriction Act or by the principles of the Act but the interest of justice demand that an occupant who is litigating for his rights to protect his possession and has been granted interim relief restraining the other party to interfere in his possession, his right for peaceful occupation cannot be disturbed as has been done in the present case. The trial Court should have permitted the plaintiff-appellant, in the exercise of inherent jurisdiction, in the interest of justice, to get the shutter repaired and to cover the hole alleged to have been made by the defendant- respondents in the wall without prejudice to the rights of the defendant- respondents in the main case. In the exercise of revisional powers under Article 227 of the Constitution of India, in the interest of justice, the present case is considered to be a case of exceptional hardship to the plaintiff- petitioner. The interim C.R. No. 4593 of 2010 (O&M) [5] order dated June 15, 2010 is hereby set aside and the application of the plaintiff- petitioner for interim repair is allowed to the extent that petitioner will be at liberty to spend money on the property in dispute for getting the shutter repaired to the extent that he is able to open and close the shop and to get the hole existing in the roof repaired to the extent that the leakage of water in the shop could be prevented in order to enable the petitioner to peacefully occupy and use the shop. The necessary expenses incurred by the petitioner will not be recoverable from the defendant- respondents. Nothing said in the order will prejudice the rights of the defendant- respondents in the main case or in proceedings under Order 39 Rule 2 A CPC which are pending before the Court. It is further ordered that the main suit and the application under Order 39 Rule 2A CPC will be adjudicated upon expeditiously by the trial Court. The photographs and the report of Local Commissioner shown to the Court are hereby returned. Allowed in the aforesaid terms. May 3, 2011 (M.M.S.BEDI) sanjay JUDGE