Madhya Pradesh High Court
Liyakat Ali vs Irfaan Ali on 15 October, 2015
Writ Petition No.6692/2015
(Liyakat Ali Vs. Irfaan Ali and Others)
15/10/2015
Shri P.C. Chandil, Advocate for the petitioner.
This writ petition under Article 227 of the Constitution of
India is filed challenging the order passed by the trial Court dated
08/09/2015 in Civil Suit No.2A/2015 (Annexure P/1), by which
plaintiff/petitioner's application under Order 6 Rule 17 CPC has
been rejected.
Facts necessary for disposal of the writ petition are in
narrow compass. Petitioner has filed a suit for specific performance of an agreement and for permanent injunction restraining defendants not to dispossess the petitioner from the suit premise. Defendant No.1 has also filed an application under Order 39 Rule 1 and 2 CPC seeking injunction. The trial Court vide order dated 23/01/2015 (Annexure P/14) allowed the aforesaid application and directed defendant No.2/Municipal Council, Sheopur to break open the lock put up by the plaintiff over the suit shop and deliver the possession to the defendant no.1. The appeal arising therefrom at the instance of the petitioner/plaintiff was dismissed on 18/02/2015 by the First Appellate court. According to the petitioner against the aforesaid order, writ petition No.1756/2015 was filed, and the same is pending consideration before this Court. Consequent upon the aforesaid order passed by this trial Court, petitioner/plaintiff has filed an application for amendment under Order 6 Rule 17 CPC to add the prayer for restoration of possession of the suit shop and Writ Petition No.6692/2015 (Liyakat Ali Vs. Irfaan Ali and Others) recovery of damages. The aforesaid application has been rejected by the trial Court on the premise that the said amendment, if allowed, shall run contrary to the order passed by the trial Court dated 08/09/2015 confirmed by the Appellate Court (referred to hereinabove).
Learned counsel for the petitioner contends that in absence of relief for possession, plaintiff's suit for specific performance of an agreement shall be seriously jeopardized and, therefore, the trial Court, in all fairness, out to have allowed the aforesaid amendment application.
Having considered the submissions so advanced, this Court is of the view that the petitioner/plaintiff undisputedly was in possession of the suit premise at the time of filing of the suit. His possession over the suit premise has been taken over by the order of the trial Court allowing application under Order 39 Rule 1 and 2 CPC filed by the defendant No.1. On the direction of the trial Court, the lock put on the suit premise was broke open by defendant No.2 and possession thereof was delivered to defendant No.1 by an interim order passed by the trial Court pending final adjudication of the suit. The aforesaid order is always subject to the final judgment and decree to be passed by the trial Court. Under such circumstances, if ultimately the suit is decreed for specific performance of an agreement, the petitioner shall be entitled for the possession at the time of filing of the suit and the possession, as the interim order whereby possession was delivered to defendant No.1 by defendant No.2 shall have to Writ Petition No.6692/2015 (Liyakat Ali Vs. Irfaan Ali and Others) give way to final judgment and decree passed by the trial Court.
Learned counsel further submits that while possession of the suit shop was delievered to defendant No.1 after breaking open the lock serious damage has been caused to the belongings kept in the shop and there is a loss of belongings as well, therefore, prays that liberty may be granted to him to file a suit for damages.
I am afraid that such prayer made in this writ petition cannot be countenanced, as the order passed today is confined to justifiably of the trial Court's order disallowing the amendment application under Order 6 Rule 17 CPC filed by the petitioner. However, petitioner may take recourse to law for redressal of his grievance (referred above) before the appropriate forum.
With the aforesaid, direction and observation writ petition stands disposed of.
It is made clear that this Court has not expressed any opinion on the merits of the case.
Certified copy as per rules.
(Rohit Arya) Judge vc