- (1.) D. K. Seth, J. Suit No. 540 of 1997 has been filed by the petitioner before the learned Additional Civil Judge (Junior Division) IVth Court, Moradabad against the opposite parties for an injunction restraining them from taking possession of the properly except through proceedings instituted in the Court of law. The Trial Court upon an application under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure granted an ad interim injunc tion by an order dated 21st December, 1998. Misc. Civil Appeal No. 11 of 1999 and Misc. Civil Appeal No. 15 of 1999were filed by the defendant opposite parties and the plaintiff petitioner, respectively, against the said order. By an order dated 17th July, 1999 passed by the learned Dis trict Judge, Moradabad, Misc. Appeal No. 11 of 1999 was allowed and the order dated 21st November, 1998 was set aside. By the same order, Misc. Appeal No. 15 of 1999 was dismissed.
(2.) MR. K. K. Arora has challenged the order dated 17th July, 1999 passed in the appeal No. 11 of 1999 on the ground that the question that was posed before the Court below was as to the consideration whether z prima facie case is made out or not. On the other hand, the court had entered into the question as to whether the petitioner had any right to possess the property or not. In fact is has dealt with the merit of the case, which was not supposed to be done while considering the question under Order XXXIX, Rules 1 and 2. He further contends that even if the petitioner's claim for tenancy appears to be invalid or void by reason of Sections 11, 13,16 and 17 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, still then he cannot be evicted except through a proceeding under Section 12 of the i said Act. He further contends that the Petitioner cannot be dis possessed by reason of the execution of the order passed in proceedings under Sec tions 145 and 146 of the Code Criminal Procedure, particularly when the petitioner was not a party to the said proceedings. Therefore, in the present case, the petitioner was able to made out a prima facie case for grant of interim order in his favour as was granted by the learned trial Court. Therefore, the order passed by the learned appeal court suffers from infir mity, which should be interfered with through this petition under Article 227 of the Constitution pf India. He has also relied on the balance of convenience and inconvenience between the parties and has also pointed out from the order itself that there were certain materials on the basis of which it could be said that there was a tenancy created by the holders of the power of attorney in his favour. He also contends that the order passed by the ap pellate court is full of perversity and can not be sustained and as such, the said or ders should be quashed. Mr. M. C. Tewari, learned counsel for the opposite parties on the other hand contends that by reason of Sections 11,13, 16 and 17 of the 1972 Act, the suit cannot be maintained. Thus there cannot be any question of making out a prime facie case in respect of a suit which is prima facie not maintainable before the Civil Court. He also contends that even on facts which were discussed in detail by the appellate Court, the petitioner has not been able to make out a prime facie case. The decision that was arrived at was no the basis of the pleadings made out by the parties and it does not require any evidence. Therefore, according to him there was no perversity in the finding of the appellate Court. I have heard learned counsel for the pas ties in detail.
(3.) THE petitioner is claiming his right of possession by reason of agreement for tenancy entered into between him and one Sri Rajendra Prasad Shukla on 26th May, 1994. It is alleged that Rajendra Prasad Shukla was holding the power of attorney of the owners of the premises. THE said tenancy had commenced with effect from 1st June, 1994 and he had paid rent for which receipts were granted and therefore, there was sufficient, prima facie case for grant of injunction. Admittedly, the power of attorney granted in favour of Rajendra Prasad Shukla was cancelled on 27th March, 1996. Thus Mr. Arora contends that the agree ment entered into between the petitioner and the said Rajendra Prasad Shukla was during the period when the power of attor ney was Subsisting as such it was valid. The appellate Court had dealt with all these facts and had come to a finding that the rent was paid on 2nd of July, 19% for the period from April, 1996 to June, 1996. The petitioner had filed only one receipt and that is of 2nd July, 1996. There is nothing to show that the petitioner had paid rent after 2nd July, 1996 or before April, 19%. After having considered the facts in detail the appellate Court had come to a finding that the documents or agreement for rent was not a genuine one. It had also come to a finding that there was an earlier suit being original suit No. 1149 of 1993 between Rajendra Prasad Shukla and Jogendra Prasad Shukla, in which an interim order of status quo was passed on 23rd Septem ber, 1993. In the said suit the relief sought for was restraining the defendant from alienating the property. By reason of the order dated 23rd September, 1993 by which the parties were directed to main tain a status quo regarding the premises in suit, it is very difficult to accept that Rajendra Prasad Shukla would part with possession of the premises even by way of letting it out to a person. The suit being a suit with regard to the alienation of the property by the defendant, the order direction maintenance of status quo would mean that neither of the parties should alienate the property. Mr. Arora; however had contended that letting out of the property is not a transfer and as such not as alienation.;