A.K.YOG, J. - (1.) Learned counsel for the parties agreed and have made a statement that this F.A.F.O. may be decided on the basis of the documents filed with the affidavit (sworn by Yogesh Kumar Garg on behalf of the Appellant) in support of the Stay Application in the present First Appeal From Order and hereinafter called 'the Affidavit'. None of the parties have referred to any papers in the Respondent's Paper Book.
(2.) The salient and relevant factual details, necessary for appreciating the contentions of the parties in the present First Appeal From Order are as hereunder : One Shiv Kumar Jatia (plaintiff-appellant) filed Original Suit No. 496 of 2001 primarily on the ground that disputed property is Municipal No. 365, Harris Ganj, Kanpur Cantt., Kanpur, (referred to as premises No. 4927, Cawnpur Cantt. Board in the lease- deed dated 1-1-1895 (Exbt.-I on the record of the trial Court), and pleaded, inter alia amongst others, that plaintiff is the successor-in-interest of the Lessor whereas the defendant S.R.G.P. Industries/Defendant is the 'Lessee'; copy of the lease dated 1-1-1895 is Annexure-3 to 'the affidavit' (page 37 of the F.A.F.O. paper book). Copy of the plaint of said Original Suit No. 496 of 2001, dated May 1, 2001 is Annexure-1 to 'the affidavit' (page 26 of the F.A.F.O. paper book).
(3.) For convenience, Plaint Paras 2, 3, 6, 7 and 17 (relief clause) are quoted- "(2) That by the lease deed dated 1-1-1895 the disputed property was given on the lease to the lessee i.e. Ganges Flour Mills Company Limited, to construct the Flour Mill offices and hereditaments and the company eonstrued the same. The lessee was conferred no right to raise any of the constructions, which were not ancillary to Flour Mill. (3) That in the year 1921 /1922 the defendant purchased the Flour Mill along with the leasehold rights from the original lessee i.e. Ganges Flour Mill Company Limited, through Court Action. (6) That on 2-9-2000 defendant issued a public notice and informed its employees that the defendant has decided to close the production in its mill fully and finally w.e.f. 4-9-2000. Now the defendant has closed its mill and there is no production in the mill. The purpose for which the disputed property was leased to defendant has totally ceased to exist and the defendant has no right to use the property in suit for any other purpose. (7) That on 2-1-2001 plaintiff wrote a detailed letter to the defendant and clearly pointed there on that the defendant totally changed the nature of the disputed property as well as the business carried on by the defendant, i.e. from industrial to commercial. Meanwhile plaintiff came to know that the defendant has obtained the sanction from Cantonment Board, Kanpur, vide its resolution No. 26, dated 12-9-2000. This sanction was taken to erect a commercial complex on the disputed property, after changing the nature of its present business of Flour Mill, which is totally in violation of lease terms contacted in the lease deed dated 1-1-1895. The plaintiff has asked the Cantonment Board to provide the certified copy of sanctioned site plan but it has refused to provide the same to the plaintiff. "17. That the plaintiff prays for the following reliefs : (a) A decree of permanent prohibitory injunction, may kindly be passed in favour of plaintiff and against the defendant, restraining the defendant from raising any construction on the disputed property, in pursuance of the alleged map sanctioned by Cantonment; Board or otherwise, so as to change the nature of disputed property from Industrial to Commercial. (b) A decree of permanent prohibitory injunction may kindly be passed in favour of plaintiff and against the defendants, restraining the defendant from sub-letting any part of the disputed property. (c) any other relief which this Honourable Court deems fit in the circumstances of this case, may be kindly granted in favour of plaintiff and against the defendant. (d) cost of the suit may be awarded in favour. our of the plaintiff and against the defendant." ;