Civil Revision Application No. 140 of 1998

10th June, 1999

Petitioner Counsel: SHRI M.S. USGAONKAR, Senior Advocate with SHRI S. USGAONKAR
Respondent Counsel: SHRI S.D. LOTLIKAR

Cases Cited:
United Commercial Bank Vs. Bank of India, AIR 1981 SC 1426 [Para 2]
Sarup Singh Vs. Daryaodhan Singh, AIR 1972 Delhi 142 [Para 3]
Ewin Shaukwa Vs. U Po Nyun, AIR 1927 Rangoon 257. [Para 3]
Sri Samir Sobhan Sanyal Vs. Tracks Trade Private Ltd., JT 1996 (5) S.C. 74 [Para 7]

JUDGMENT

JUDGMENT :- The petitioners (defendants in the suit) have come in revision against Order dated 31st July 1998 of Civil Judge, Senior Division, Panaji, whereby the petitioners have been directed to deposit the keys of the suit premises in the Court on or before 4th August 1998 after removing the materials including boxes from inside the suit premises. The Order further states that in case of failure of the defendants to remove the materials including boxes from the suit premises on 4th August 1998, the bailiff of the court shall remove the same on 11th August 1998 at 10.00 a.m. and after making inventory hand over the same to the defendants, who shall remain on site on 11th August 1998, failing which, the custody of the said materials shall be given to the plaintiff, who shall not be held liable for damages, if any, caused or which would be caused to the materials including the boxes.

2. In order to appreciate the rival contentions it is necessary to look into the background in which the impugned Order has been passed. The suit premises is a garage for keeping car and in respect of this suit premises there was litigation between the father of the respondent no. 1 (plaintiff in the suit) and landlord petitioner no.2 (defendant no.2 in the suit) for eviction which ended in favour of the father of respondent no.1 in the year 1981. The case of the respondents is that they continued to be in possession of the suit garage but were forcibly dispossessed which possession was regained by them with the help of police in the first week of January 1992. However, when respondent no.1 went to the suit premises on 8th January 1992, he saw his car lying out on the road and a new lock on the suit premises. Accordingly the respondents filed a suit seeking mandatory injunction to remove the lock put to the suit premises as well as the materials including boxes dumped in the suit premises. Mandatory injunction to restore the ramps in front of the entrance door of the suit premises was also sought. The respondents, by way of temporary mandatory injunction, sought removal of the lock as well as materials including boxes dumped in the suit premises besides restoration of the ramps in the suit premises in order to facilitate smooth entry of the car in the suit premises. The trial Court had granted temporary mandatory order which was challenged before this Court in Appeal from Order No.33 of 1996 and the matter was remanded to the trial Judge. On remand, the trial Judge vide Order dated 17th April 1997 held:-

" In this facts of the case, plaintiff is in possession of the suit premises and the landlord stated that the suit premises were being used by the father of the plaintiff no.1 for parking car and the plaintiff no.1 made out a case that he had a right to continue in possession, grievance of the plaintiff that defendants put their own lock and obstructed the plaintiff no.1 to park his car appears to be quite plausible and as such direction in the nature of temporary mandatory injunction to the defendants to restore the said two ramps in fronts of the entrance door of the suit premises and not to put any lock to the suit premises is called for and as such defendants to restore the ramps within 30 days from today.

The balance of convenience tilts in favour of the plaintiffs being in possession of the suit premises and if defendants are not restrained from interfering with the suit premises, the plaintiffs will be put to irreparable loss and injury as they would be deprived possessory right to the suit premises. Further it has been held by the Hon'ble Supreme Court in the case United Commercial Bank v/s Bank of India and another, AIR 1981 SC 1426 that even if there is serious question to be tried, balance of convenience ought to be considered as a pre-eminent consideration in the grant of injunction. Thus, in the totality of the facts and circumstances of the present case, plaintiffs are entitled for relief of temporary mandatory injunction wherein defendant are being directed to restore the said two ramps to the suit premises for the smooth entry of their car within 30 days from today."

This Order was challenged before this Court in Appeal from Order No. 29 of 1997 by the present petitioners but the appeal was dismissed. The petitioners filed Special Leave to Appeal (Civil) 6907 of 98 before the Apex Court which was dismissed on 27th April 1998. Thereafter the respondents filed Execution Application on 25th May 1998 for implementation of Order dated 17th April 1997 passed by the trial Court which had been confirmed by this Court vide Order dated 13th February 1998 which was opposed by the present petitioners. The trial Court vide Order dated 31st July 1998, which is impugned in this revision allowed the said application giving directions as already recorded in the opening paragraph above.

3. Learned Senior Counsel Shri M.S. Usgaonkar argued on behalf of the petitioners and learned advocate Shri Lotlikar argued on behalf of the respondents.

4. Learned Senior Counsel for the petitioners has argued that the respondents had not filed any suit for possession which was required to be filed in case of dispossession urged by the respondents and that the prayer to remove the boxes had not been granted in Order dated 17th April 1997, as a result of which the mode of assistance sought by the respondents is beyond the scope of the temporary mandatory order passed by the trial Court. Relying upon Judgments in Saruo Singh v. Daryodhan Singh, (A.I.R. 1972 Delhi 142) and Ewin Shaukwa v. U Po Nyun, (A.I.R. 1927 Rangoon 257) it is urged that the trial Court had erred in giving directions for removal of the materials including boxes from the suit premises.

5. On the other hand, the learned advocate for the respondents has urged that the prayers a and c in the suit in fact seek restoration of possession though they may not be properly worded; that the letter and spirit of Order dated 17th April 1997 has been rightly taken into account by the trial Judge while passing the impugned Order and that the impugned Order does not suffer from any infirmity in order to exercise revisional jurisdiction in the matter. It is urged that the impugned Order has been passed to further the cause of justice and for effective adjudication of the matter at the interim stage.

6. Looking into the pleadings contained in the plaint, it is the case of the respondents that the petitioners had taken forcible possession of the suit garage by removing the car of the respondents therefrom and by putting a lock as well as by putting materials and keeping boxes therein. The respondents sought interim injunction for removal of the lock and also for removal of the materials including boxes dumped therein as well as for restoration of the entrance ramps so as to facilitate the smooth entry of the car in the suit premises. Though technically there is no specific prayer for restoration of possession, yet looking into the pleadings contained in the plaint and the reliefs sought it is clear that what the respondents seek is the possession of the suit garage which has been taken over by the petitioners. The prayers in the plaint may not be properly worded but, in substance, what is asked for is the possession of the suit garage and for that purpose if it is necessary, the respondents can make appropriate amendment in the pleadings.

7. The trial Judge, as already pointed out in paragraph 2, had come to the conclusion that the respondents are in possession of the suit premises; they had right to continue in possession; grievance of the respondents that the petitioners had put their own lock and obstructed respondent no. 1 to park his car appears to be quite plausible and as such temporary mandatory injunction was granted to restore the two ramps in front of the entrance door of the suit premises with further direction to the petitioners not to put lock to the suit premises. Those findings of the trial Court were affirmed by the learned Single Judge in Judgment dated 13th February 1998 in Appeal from Order No. 29 of 1997. The theory of the petitioners that the tenancy of the suit garage was surrendered was not accepted and that the fact of dispossession on 8th January 1992 by the petitioners had been established. Once the forcible dispossession of the respondents from the suit premises is established, it necessarily follows that the respondents have to be put back in possession. Technicalities or technical objections to frustrate the mandatory temporary injunction which has attained finality cannot be permitted to thwart the course of justice. In this respect it is necessary to quote the following observation of the Apex Court in Sri Samir Sobhan Sanyal v. Tracks Trade Private Ltd. and others, (JT 1996 (5) S.C. 74), which are directly attracted and can be applied in the facts and circumstances of the matter under consideration:-

" It would thus be clear that without any decree or order of eviction of the appellant from the demised premises, he has been unlawfully dispossessed from the premises without any due process of law. The question, therefore, is: whether he should be allowed to remain in possession till his application under Order 21, Rules 98 and 99 is adjudicated upon and an order made. Though the learned counsel for the 1st respondent and also for the 3rd respondent, who is one of the transferees from the 6th respondent, sought to contend that the appellant has no right to remain in possession after the lessee, M/s. India Foils Ltd. had admitted by a resolution that the appellant has no right to remain in possession, we are not impressed with the arguments. At this stage, we are only concerned with his admitted possession of the demised premises. What rights would flow from a contract between him and his employer is a matter to be adjudicated in his application under Order 21, Rules 98 and 99, CPC. At this stage, it is pre-mature to go into and record any finding in that behalf. The learned counsel for the 1st respondent also repeatedly sought to bring to our notice that on account of the orders of the Court Officer passed by the High Court the maintenance cost has been mounting up due to the delay in disposal of the proceedings in various courts. Even with regard to that we are not impressed with the same. Since the letter of the law should strictly be adhered to, we find that high-handed action taken by the respondent Nos. 1, 3 and 6 in having the appellant dispossessed without due process of law, cannot be overlooked nor condoned. The court cannot blink at their unlawful conduct to dispossess the appellant from demised property and would say that the status quo be maintained. If the Court gives acceptance to such high-handed action, there will be no respect for rule of law and unlawful elements would take hold of the due process of law for ransom and it would be a field day for anarchy. Due process of law would be put to ridicule in the estimate of the law-abiding citizens and rule of law would remain a mortuary."

8. The trial Judge thus rightly came to the conclusion in the impugned Order in paragraphs 10 and 11 as under:-

" If one carefully reads this order it becomes clear that the very purpose of the grant of this order is to enable the plaintiff to take the car smoothly inside the suit premises which in other word means that plaintiff should be given the vacant suit premises. Even in the order of the Hon'ble High Court dated 3.2.98 it has been observed that the suit premises had been used as garage by the plaintiff till the date of dispossession.

11. I am in agreement with the submissions of learned Advocate for the plaintiff that the order has to be construed in its letter and spirit and in my view merely non mentioning of the fact of removal of materials including boxes from the suit premises does not mean that the trial Court had no intention of granting that part of prayer as otherwise there would have never been the observation of the trial Court that there should be smooth entry of car in the suit premises."

9. For the aforesaid reasons, I am of the opinion that the impugned Order does not suffer from any jurisdictional error or that the trial court has, in any manner, acted illegally or with material irregularity so as to justify interference in revisional jurisdiction of this Court. The revision, accordingly, fails and is dismissed as such with costs.

Revision dismissed.