G. D. Dubey, J. - (1.) THIS appeal has been preferred against the judgment and order of Additional District Judge, Rampur issuing temporary injunction against the appellant and defendant-respondent Smt. Swarna Mittal restraining them from interfering in the working of the petrol-pump by the plaintiff Som Dutt Mittal. They were further directed to remove the lock put on the petrol-pump and its other structures within two days failing which the plaintiff-respondent was given a right to open the lock himself. The plaintiff- respondent was, however, directed to furnish the accounts of income and expenditure of the petrol-pump every month and shall also give an undertaking that in case the business is found to be a partnership business then he will hand over the share of profits of the pump to the appellant and defendant-respondent Smt. Swarna Mittal.
(2.) THE plaintiff had alleged that he is the sole proprietor of the firm. He has obtained a licence of sale of petrol in 1966 from Esso Standard Eastern Incorporated Company, in the name and style of Som Dutt Subhash Chandra. In 1971, the aforesaid firm was changed to Naini Service Station. THE name of Esso Company has changed to Hindustan Petrolium Corporation Limited. It was urged that the plaintiff is continuing the sole business. He has obtained the necessary licence under the U. P. High Speed Diesel Oil and Light Speed Diesel Oil Storage and Distribution Order, 1981 and also under the U. P. Shops and Commercial Establishment Act. In 1986, Brahma Dutt Mittal, father of the appellant, had started interfering in the business of the plaintiff. Consequently, Som Dutt Mittal had filed Suit No. 47 of 1986 in which an injunction order was issued in favour of the plaintiff on 7-5-1986. Disobeying this order of injunction, Brahma Dutt Mittal had put lock on the petrol-pump. When a complaint was made, the application of the plaintiff was accepted and the lock was got open on 2-9-1988. Brahma Dutt Mittal had moved two more petitions for appointing receiver of the property. THEse were rejected by the court. When Brahma Dutt Mittal was unsuccessful in his attempt, he instigated the appellant. THE appellant had put lock on the petrol-pump in the night of 12th/13th March, 1989. It was contended that the defendants have no concern in the property in question. THE plaintiff also alleged that his diesel and petrol are lying in the tanks. THEse are evaporating and the plaintiff is suffering irreparable loss. Hence a prayer was made to get the locks opened and restrained the defendants from interfering in the possession of the plaintiff over the property in dispute during the pendency of the suit. The defendant-appellant alleged that since 1971-72 they are partners in the firm M/s. Naini Service Station. The defendant No. 2 Smt. Swaraa Mittal has 25 per cent share. Smt. Usha Mittal, mother of the plaintiff and mother-in-law of defendant No. 2, has fifty per cent share. The plaintiff- respondent has only twenty five per cent share. It was urged that this partnership firm was dissolved and by a letter dated 17-2-1986 information was sent to the Sales-tax Department that the business has been closed. It was further contended that the land, on which the business is being run, is the joint property of the plaintiff and the defendant No. 2's husband Brahma Dutt Mittal. The permission for construction on this land was obtained jointly by the co-owners of this land. According to the defendant, defendant No. 2 is a house wife and her husband remains busy in social work. Hence taking undue advantage of this fact, the plaintiff got his name soley recorded in the various licences. The defendant also alleged that the dispute between the parties has been referred to arbitration. In this arbitration proceedings, an award has been made against the plaintiff. It was also urged that a report has been lodged against the plaintiff under Sections 420, 468 and 471, IPC by the defendants against the plaintiff. Despite all these, the plaintiff was not disbursing the profits to the defendants. The defendants had no other alternative except to put the lock over the petrol-pump. Both the parties had exchanged their affidavits before the lower court along with annexures. After hearing both the parties, the trial court came to the conclusion that the plaintiff is prima facie sole proprietor of the property in question. It was further held that by putting the lock the plaintiff is suffering unnecessary damage. The lower court held that prima facie case was established by the plaintiff and he had balance of convenience in his favour. It was also held that the plaintiff will suffer irreparable loss if the locks are not permitted to be opened. Consequently, the impugned order was passed.
(3.) AT the very stage of admission, affidavits had been exchanged with relevant annexures. Hence with the consent of the parties, we are disposing of this appeal at the admission stage. Learned counsel for the appellant drew our attention to Annexure "2" to the affidavit filed in support of the stay application. This is an application for registration of the firm moved to the Sales-tax Officer, Rampur Circle on 30th of March, 1973. The plaintiff had shown Som Dutt Mittal (himself), Usha Mittal and Smt. Swarna Mittal as partners. Annexure "3" to the affidavit filed in support of the stay application is letter of Usha Mittal addressed to the Sales tax Officer, Rampur informing that due to some partnership changes the business name Naini Service Station has been closed with effect from 5th of February, 1986. It was urged that these documents % were furnished by the plaintiff himself to the Sales-tax Officer. Hence these documents prima facie show that the defendants were partners in the firm and the plaintiff has got no right to run the business.;