ANIL SHARMA Vs. MEHBOOB HUSSAN

JUDGEMENT

(1.) In what circumstances should the Court grant a mandatory injunction by way of interim directions? This is the question which arises for decision in the present case.

(2.) The respondent (hereinafter referred to as 'the plaintiff') filed a suit under Section 6 of the Specific Relief Act for recovery of possession. According to the averments made in the plaint, father of the plaintiff was inducted as tenant by the predecessor in interest of the defendants some time in the year 1973. It is alleged that after the death of his father, the plaintiff inherited the tenancy and Smt. Jogmaya, widow of the original owner Shri Inder Dass, predecessor in interest of the respondents, received the rent of the shop from the plaintiff. Thereafter, Shri Pardeep Kumar, husband of defendant No. 1 and father of defendant No. 2 also received the rent of the shop. The case of the plaintiff was that he had spent a huge amount for re-construction of the shop with the consent of the owners and they had agreed that the amount spent by the plaintiff would be adjusted in the monthly rent. The problem arose after the death of Pardeep Kumar. It is alleged that on 12.03.2011, defendant No. 2 alongwith some anti-social elements forcibly entered into the shop and threw away the articles lying in the shop and illegally took possession of the same and put their lock on the shop. The plaintiff reported the matter to the police on the same day, i.e. on 12.03.2011 itself and FIR No. 62 of 2011 was registered.

(3.) The suit in question was filed on 16.03.2011 and alongwith the suit, the plaintiff filed an application under Order 39 Rule 1 and 2 CPC praying that an interim order of mandatory injunction be passed directing the respondents to handover the vacant and peaceful possession of the shop to the petitioner. The defendants contested the suit and according to them, the plaintiff had voluntarily surrendered the tenancy and handed over the possession of the shop to the defendants on 10.03.2011, when they took over possession of the same. Allegedly, a writing in this behalf was also executed. The prayer for grant of interim mandatory injunction was opposed on the ground that allowing of such a prayer would virtually amount to decreeing the suit. The learned trial Court rejected the application mainly on the ground that the plaintiff was not in possession of the shop at the time when the suit was filed. The learned trial Court has also made some reference to the statement of the plaintiff in Court. According to him, the plaintiff was guilty of concealing material facts and rejected the application. The plaintiff filed an appeal and in this appeal, the learned District Judge came to the conclusion that this was a fit case where by way of interim order, mandatory injunction should be granted directing the defendants to put the plaintiff in possession of the property. The learned lower Appellate Court was of the opinion that there was material on record to prima facie come to the opinion that the plaintiff had been forcibly dispossessed.