Rajasthan High Court - Jaipur
Sh. Abdul Hakim And Anr. vs Habib Khan on 13 August, 1997
Equivalent citations: AIR1998RAJ157, 1997(2)WLN293
ORDER Shiv Kumar Sharma, J.
1. This instant revision arises from the order dated Dec. 6, 1996, of the learned Additional Civil Judge No. I. Jaipur City, whereby the application filed under Section 151 of the Code of Civil Procedure by the plaintiff-non-petitioner was allowed.
2. Briefly stated facts giving rise to this revision petition are that the plaintiff-non-petitioner (for short the 'plaintiff') instituted a suit for permanent injunction before the trial Court against the defendants-petitioners (for short the 'defendants') stating therein that the plaintiff was a tenant in the shop in question. The defendants wanted to make repair in the said shop and threatened the plaintiff to dispossess forcibly. Therefore, the defendants entered into caveat and appeared before the learned trial Court on Nov. 10, 1994. The plaintiff and the defendants moved an application on Nov. 10, 1994 under Section 151, C.P.C. before the learned trial Court. A perusal of the said joint application reveals that following under taking was filed by the parties :
* 1½ ;g fd vizkFkhZx.k tokc izkFkZuk i= ds vf/kdkjksa dks lqjf{kr j[krs gq, nksuksa Qjhd bl vk'k;dh v.MLVsfdax nsrs gS %& ;g fd fdjk;'kqnk ifjlj ftldk fooj.k okn i= ds en uecj&1 ¼,d o 2½ ¼nks½ esa of.kZr fd;k x;k gS izfroknhx.k ds ekfydkuk gd dk gS] ftlesa oknh fdjk;snkj dh gSlh;r ds dkfot gS A izfroknhx.k edku rkehjkr o ejEer dh btktr uxj fuxe] t;iqj ls izkIr dj pqds gS blfy;s fdjk;s'kqnk ifjlj dk dCtk fnukad 11-11-1994 dks oknh] izfroknhx.k dks [kkyh djds laHkyk nsxk A izfroknhx.k vius edku dh rkehjkr djrs le; nqdku oknxzLr fdjk;s'kqnk rhu ekg dh vof/k esa rkehj djds okil oknh dks fnukad 18-2-1995 ¼nl Qjojh lu~ mUuhl lkS fipkuos½ dks laHkyk nsxk A rkehjkr ds le; nqdku dh yEckbZ o pkSMkbZ fcuk vklkjksa d tks ekStwnk gS QhV ls de ugha gksxh] c<sxh og fdjk;snkj oknh dks lqfo/kk ds :i feyxh A fdjk;s'kqnk nqdku dk fdjk;k 50@&:i;s ekfld gS tks ubZ rkehjkr ds ckn fnukad 11-2-1996 ls 100@&:- lkS :i;s ekfld gksxk A ¼2½ ;g fd mDr v.MjVsafdx izfroknhx.k ls nksuksa Qjhdsu lger gS] nqqdku dk dCtk ugha nsus ij U;k;ky; ls dh ekQZr dCtk oknh] izkIr djus o gtkZ [kpkZ izkIr djus dk gdnkj gksxk A ¼3½ ;g fd dCtkoknh izkIr djus ds i'pkr~ nksuksa i{k izkFkZuk i= vLFkk;h fu'ks/kkKk o nkok lgefr ls fuf.kZr djok ysxsa A vr% v.MjVsfdx izfroknhx.k izkFkZuk i= ds en uEcj&1¼,d½ esa of.kZr ds vuqlkj izdj.k esa vkxs rkjh[k is'kh fnukad 10-2-1995 ds i'pkr~ dh fu;r fd, tkus ds vkns'k iznku djsa A** t;iqj A fnukad%
3. On the basis of the joint application the case was adjourned for Feb. 10, 1995.
4. Thereafter, the plaintiff on March 8, 1995, submitted an application under Section 151, C.P.C. seeking mandatory injunction in respect of possession of the property in dispute. The defendant No. 2 filed reply to the said application but defendant No. 1 did not choose to file reply. Thereafter, the learned labour Court recorded the evidence of the parties. The plaintiff examined himself as AW 1, whereas defendant Smt. Aladi Begum appear as a witness and produced Aziz and Zarif Ahmed in support of her reply.
5. The learned trial Court vide its order dated Dec. 6, 1996, allowed the application under Section 151 of the plaintiff and directed the defendants to handover the possession of the shop in dispute to the plaintiff. Against this order, the present action for filing revision has been resorted to.
6. I have given my anxious considerations to the rival contentions and carefully perused the record. Mr. Z.A. Naqvi, learned counsel appearing for the petitioner canvassed that the relief which was not sought in the plaint could not have been granted to the plaintiff. It was the duty of the plaintiff to amend the suit incorporating subsequent events. Reliance was placed on the case of Abdul Razak v. Narain Das reported in (1996) 2 WLC 597 and Lakshmikully Amma Retnamama v. P.N. Krishna Pillai reported in AIR 1992 Ker 373. On the other hand, Mr. Ushama Khan, learned counsel appearing for the respondent supported the impugned order and placed reliance on the case of Azim Khan v.
State, reported in 1958 Raj LW 90, Cheni Chenchaiah v. Shaik Alli Saheb, 1993 Civil Procedure Cases, 548 (Andhra Pradesh), Satya Narain v. Shantilal, (1993) I Raj LR 753, District Wakf Committee v. Smt. Badri Bai, (1991) 1 WLC (Raj) 210 and Devla v. Khem Chand (1990) 1 Raj LR 644.
7. I have given my anxious considerations and carefully perused the judgment as well as the case law cited at the Bar. In Azim Khan's case (supra), it was held by this Court that if the plaintiff is dispossessed during the pendency of the suit for declaration, amendment of plaint should not be insisted upon and the plaintiff should be put back in possession so that status quo ante be restored.
8. Admittedly the plaintiff was in possession of the shop in dispute on the date of institution of the suit and he was dispossessed from the said shop on the basis of undertaking filed under Section 151, C.P.C. by the parties on Nov. 10, 1994, before the learned trial Court. Therefore, in view of ratio of Azim Khan's case (supra), the plaintiff, who was dispossessed during the pendency of the suit was entitled to the possession of the shop and it was the duty of the learned trial Court to restore the status quo ante.
9. I am not convinced of the arguments made by Mr. Z.A. Naqvi and ratio of Abdul Razak v. Narain Das, (1996 (3) WLC 507) (supra) and Lakshmikutty Amma Ratnama v. P.N. Krishna Pillai's case (AIR 1992 Ker 373} (supra), is not applicable in the instant case. Indisputably the act of the defendants amounts to over-reaching the process of law and it is the duty of the trial Court to protect the rights of the parties as they existed on the date of filing of the suit.
10. Learned trial Court decided the application of the plaintiff after recording the evidence of the parties, by a well reasoned order. I see no error of jurisdiction in the said order.
11. In the result the revision fails and is hereby dismissed. The impugned order of the learned trial Court stands confirmed. The record of the trial Court be sent forthwith. The parties are directed to appear before the learned trial Court on Sept. 9, 1997. Cost is easy.