Kamal Kumar & Anr. v. Surinder Kumar

Present: Mr. Shailender Sharma, Advocate for the petitioners. Mr. P. S. Dhaliwal, Advocate for the respondent. L. N. MITTAL, J (ORAL) Defendants have filed the instant revision petition under Article 227 of the Constitution of India impugning order dated

30.04.2010 Annexure P-13 passed by learned Civil Judge (Junior Division), Moga thereby allowing application Annexure P-11 filed by the plaintiff-respondent for restoration of possession of the disputed shop. Respondent has filed suit against the petitioners for permanent injunction alleging that the respondent-plaintiff is in possession of the disputed shop as tenant under the petitioners pursuant to oral tenancy, but the defendants threatened to dispossess the plaintiff from the disputed shop forcibly and illegally. The suit was filed on 26.02.2010. While issuing notice of the suit to defendants for 12.03.2010, interim order directing the parties to maintain status quo regarding possession over the disputed shop was also passed. On 12.03.2010, defendants put in appearance in the trial Court through counsel and on request, case was adjourned to C.R. No.2897 of 2010 2

09.04.2010 for filing written statement and reply to injunction application. The plaintiff alleged in his application Annexure P-11 that inspite of status quo order, the defendants on 29.03.2010 at about 7:00PM forcibly threw out the articles of the plaintiff from the disputed shop. Plaintiff went to concerned Station House Officer, who came to the shop with other police officials and locked the shop and assured the plaintiff to give the key to him after inquiry. However, since the key was not given to the plaintiff till 01.04.2010, the plaintiff moved application in the trial Court on 01.04.2010 for directing the Station House Officer to handover the key to him. Thereafter, the plaintiff was called to the police station and was beaten up and was also pressurized to enter into compromise with the defendants, but the plaintiff refused. The Station House Officer called the defendants and asked them to take possession of the shop illegally and forcibly.

Accordingly, defendants took possession of the disputed shop. On these averments, plaintiff sought restoration of possession of shop by interim order. The defendants filed reply Annexure P-12 to the application controverting the averments made in the application and inter alia pleaded that the defendants were already in possession of the disputed shop and plaintiff was never in possession thereof. There is no relationship of landlord and tenant between the parties. The plaintiff by filing the suit and under the garb of interim status quo order tried to take forcible possession of the disputed shop. Various other pleas were also raised. Learned Trial Court vide impugned order Annexure P-13 C.R. No.2897 of 2010 3 allowed application Annexure P-11 moved by the plaintiff-respondent and directed the defendants to handover vacant possession of the disputed shop to the plaintiff within seven days. Feeling aggrieved, defendants have preferred the instant revision petition.

I have heard learned counsel for the parties and perused the case file. Learned counsel for the petitioners emphatically contended that the plaintiff was never tenant in the disputed shop and was never in it possession and, therefore, the question of restoring the possession to him does not arise. On the other hand, learned counsel for the plaintiff- respondent contended that the plaintiff is tenant in the disputed shop for the last 10 years and there are photographs depicting the possession of the plaintiff over the disputed shop. It was also contended that the plaintiff also gave some donation to the Red Cross Society regarding his business being run in the disputed shop, but the plaintiff was forcibly dispossessed by the defendants during the pendency of the suit in violation of status quo order and, therefore, restoration of possession of the plaintiff has been rightly ordered. I have carefully considered the rival contentions.

The impugned order is completely illegal and unsustainable. There is no material on record to depict that the plaintiff was in possession of the disputed shop at the time of filing of the suit or that he has been dispossessed therefrom during the pendency of the suit. Learned Trial Court has referred to some photographs only to hold that plaintiff was in possession of the disputed shop. However, merely on the basis of some photographs, the plaintiff cannot be said to have been in C.R. No.2897 of 2010 4 possession of the disputed shop. If the plaintiff's tenancy was for almost 10 years before the filing of the suit, the plaintiff could have so many documents to depict his possession thereof. However, the plaintiff very cleverly created evidence by obtaining receipt of donation dated 24.02.2010 from the Red Cross Society and immediately thereafter filed the suit on 26.02.2010. The receipt of donation made by the plaintiff to Red Cross Society would in no manner depict that plaintiff is in possession of the disputed shop.

There is practically no material on record to prima facie depict that plaintiff was ever in possession of the disputed shop. Interim order of restoration of possession of the disputed shop to the plaintiff respondent is an order with serious and drastic consequences for the defendants-petitioners. It amounts to almost decreeing the suit without adjudication. Such interim order could be passed only on the basis of very strong and fool- proof case. Although at the time of final disposal of the suit, appropriate relief can be granted to the plaintiff if he establishes his case, but at this stage, there is no material on record to order restoration of possession of the disputed shop to the plaintiff because prima facie he is not shown to have ever been in possession of the disputed shop before or at the time of filing of the suit nor there is any material on record to depict even prima facie that he has been dispossessed from the disputed shop during the pendency of the suit.

Not to talk of a strong or fool-proof case, there is not even weak or prima facie case in favour of the plaintiff-respondent to order restoration of possession by way of interim order without recording evidence and adjudicating the dispute between the parties. For the reasons aforesaid, I find that impugned order of the C.R. No.2897 of 2010 5 trial Court is patently illegal and suffers from jurisdictional error. The revision petition is accordingly allowed and impugned order Annexure P-13 passed by the trial Court is set aside and application Annexure P- 11 moved by the plaintiff respondent stands dismissed. However, nothing observed hereinbefore shall have any bearing on the merits of the suit. ( L. N. MITTAL ) JUDGE

27.10.2010. A. Kaundal