KHETRAM PAREEKH Vs. KESHAR DEO SARMAH
LAWS(GAU)-1994-11-10
HIGH COURT OF GAUHATI
Decided on November 09,1994

KHETRAM PAREEKH Appellant
VERSUS
KESHAR DEO SARMAH Respondents

JUDGEMENT

- (1.)This Revision Petition has been preferred by the petitioner against the order dated 23.6.94 passed by the Assistant District Judge, Sibsagar in Misc. Appeal No. 7/94, staying the order dated 14.6.94 passed by the Munsiff, Sibsagar, by which the opposite party/defendant was directed to put into the plaintiff/Revision petitioner with the possession of the suit house with all articles by opening the door of the suit house.
(2.)The petitioner as plaintiff filed T.S. Case No. 18/94 along with a petition U/o 39 R.1 and 2 read with Section 151 C.P.C. for restraining the defendant from dispossessing and disturbing the plaintiff from the shop house.
(3.)Petitioner's case is that the land over which the tenanted shop house stood was purchased by the opposite party/defendant and with permission of the earlier owner one S.R. Khemka. The petitioner along with six other constructed their respective shop house on the said land which was lying vacant and paid rent to the daughter-in-law of Shri Khemka as per his direction. After the sale the petitioner offered rent to the Opposite party/ defendant and as the rent was refused asking the petitioner to vacate the shop house, petitioner has been depositing the rent in the: Court. That opposite party as defendant filed T.S. 26/89 which is pending in the Court of Munsiff No. 2, Sibsagar and during the pendency of the suit an agreement was arrived out side the Court between the opposite party and the petitioner along with six other tenants. According to the agreement opposite party (defendant) would construct R.C.C. shop house at the site over which the said tenanted shop houses stood. It was agreed by both sides that title defendant/opposite- party would start construction of 3 shop houses at a time to facilitate construction the respective tenant of the old house would remove the belongings and till completion of the rooms the tenant would run the business in the front vacant space by the side of the Hospital Road and accordingly an agreement was incorporated the terms, but though the petitioner put his signature there no copies of the same was furnished to him. The said suit was dismissed for default. That the petitioner had to file the above named Title Suit as on the basis of the amicable settlement, petitioner was inducted to the newly constructed shop and claims that he is running the shop in the new shop since then. But as the petitioner has been threatened by the opposite parties/defendants of ejectment demanding unreqsosonable enhancement of rent and also for huge amount of advance money, petitioner has to file the present T.S. Along with the Title Suit petitioner filed a separate petition under Order 39 Rule 1 and 2 with Section 151 C.P.C. to issue an interim injunction to restrain the Defendant (opposite parties) from dispossessing the plaintiff or from disturbing in anyway the peaceful possession of the suit house. By order dated 28.4.94 the trial Court issued an ex-parte interim injunction until further order from the Court and notice was issued fixing 30.5.94 for show cause. It was alleged that opposite parties received notice on 29.5.94 and after receiving notice, being furious, the opposite parties along with some [persons forcibly dispossesses the petitioner from the suit house and wilfully violated the injunction order. That after such forceful eviction petitioner managed to stay in the front of the tenanted premises and somehow is trying to constitute his business just to carryon his livelyhood. The reason for not approching the Court for forceful eviction/ dispossession of the petitioner from the suit house by notice the injunction order dated 28.4.94 was violated, was that, as the next date was fixed on 30.5.94 for show cause by the opposite parties, no petition was filed earlier. However on 14.6.94 petition was filed under Order 39 Rule 1 and 2 read with Section 151 C.P.C. for mandatory injunction and for restoration of the possession of the suit house and also to unlock the door of the suit house with all his belongings. The trial Court upon hearing the petitioner directed the opposite parties to restore the possession of the suit house with all articles of the plaintiffs by opening the door. Further, the Court directed the Nazir of the Civil Court to execute the order with the help of the police force if necessary fixing 18.6.94 for report. Admittedly the petition for mandatory injunction was filed after two months of the alleged forcible eviction and the order was passed ex-parte. It was further alleged by the petitioner that on 14.6.94 in compliance of the direction of the trial Court went to the suit premises, but the opposite parties; avoided to handover the key with some lame pretext.


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