MAYA DEVI Vs. MEHRIA GRAM DALL MILL

JUDGEMENT

(1.) THIS regular second appeal is directed against the judgment and decree dated 21-4-1986 passed by the learned Additional District Judge, Hissar, affirming in appeal the judgment and decree dt/- 21-3-1986 passed by the learned Sub Judge Ist Class, Hissar whereby the suit filed by the plaintiff-respondent No. 1 was decreed ex parte holding that it is entitled to the restoration of possession of the property mentioned in the heading of the plaint and ordering restoration accordingly and further restraining the defendants from dispossessing it from the premises in dispute without following the due course of law.

(2.) THE facts in brief are that respondent No. 1 through its proprietor Harbans Lal Aggrawal filed a suit on 5-6-1981 for permanent injunction restraining defendants Nos. 1 to 5 (who are appellants Nos. 2 to 4 and respondents Nos. 2 and 3 in the present appeal) from taking forcible possession of the Dal Factory including machinery and Dai Plant situated at Balasmand Road Hissar; without due process of law. The boundaries and the location of the factory were described in the plaint which are not in disputes. Respondent No. 1 alleged that it is. in possession, of the factory in dispute as its lessee for a period of 99 years; that an ejectment application was filed against it by appellant No. 2 which was pending in the, Court of the learned Senior Sub Judge, Hissar, and was fixed for 20-8-1983 for the remaining evidence; that the ejectment application was false and frivolous arid was liable to be dismissed; and that appellant No. 2 an account of frustration wanted to dispossess respondent No. 1 forcibly and without due process of law. For this purpose, he had agreed to sell the factory to appellants Nos. 3 and 4 and respondents Nos. 2 and 3 who, being forceful persons, would riot care for the law of the land and there is apprehension that respondent No. 1 may be dispossessed. It was Further alleged that appellant No. 3 came to respondent No. 1 a day earlier arid required it to vacate the premises within. a week or else the same would be got vacated by force. It was alleged that the aforesaid defendants had no right to dispossess respondent No. 1 by force. Along with the suit, an application for grant of a temporary injunction restraining the defendants from dispossessing plaintiff-respondent No. 1 from the factory was also filed. Notice of the suit was issued to the defendants and vide order dated 5-6-1981 they were restrained from forcibly dispossessing respondent No. 1 and were required to show cause why the said interim injunction be not made absolute. Defendants Nos. 1 to 5 put in appearance through their counsel Shri M. R Aggrawal. Written statement dt. /- 21-10-1981 was filed on behalf of respondents Ns. 2 to 5 who pleaded that the factory had been purchased by Smt. Maya Devi vide sale deed dt. 19-6-1981 and she had leased out the premises to M/s. Siri Sham Cotton Factory which is in possession of the factory in dispute at the spot. They pleaded that the suit against them had been filed with an ulterior motive. Ram Kumar defendant No. 1, however, did not file his written statement. Respondent No. 1 moved an application under O. I, R. 10, Civil P. C. stating therein that since the property had been sold by defendant No. I to Smt. Maya Devi vide registered sale deed dt. /- 19-6-1981 and she is interfering with its possession, she may be impleaded in the suit as defendant No. 6. This application was allowed and amended plaint was filed. Notice was issued to Smt. Maya Devi defendant No. 6, who filed her written statement dt. /- 30-11-1982 through her counsel Shri O. P. Jain Advocate. To the specific averment in the plaint the respondent No. I was in possession of the factory as a lessee, her reply :n Para. 3 of the written statement is that of bare denial. She stated that the factory and the building in dispute were purchased by her vide sale deed dt/19-6-1981 and thereafter she leased it out to M/s. Siri Sham Cotton Factory and the said lessee is in actual possession on the spot. It was alleged that since respondent was not in possession of the factory in dispute, it had no cause of action against her. It is to be noted that defendants Nos. 2 to 5 in spite of having filed their written statement did not file their reply to the application for temporary injunction. However, Jai Narain defendant No. 3 (respondent No. 2 in the present appeal made an application dt/- 7-8-1981 for vacation of the ad interim injunction stating that respondent No. 1 had not come to the Court with clean hands, that it was occupying the premises in question as a statutory tenant under defendant No. 1, that the tenancy was up to 31-3-1979, that respondent No. 1 had not paid the arrears of rent for over two and a I half years, that till it deposits the rent it is not entitled to any injunction, that the premises in question along with the machinery etc. were put on fire by respondent No. 1 on 6/7-1-1979 and had caused huge loss to defendant, No. 1. It was alleged that under the cover of ad interim injunction respondent No. l wanted to remove and sell the machinery of the factory. Its proprietor Harbans Lal Aggrawal had already removed a 30 H. P. motor and a case under S. 406, I. P. C. had been registered against him. However, a perusal of the file shows that no stage the ad interim injunction dt. /- 5-6-1981 was ever vacated by the trial Court.

(3.) ON the pleadings of the parties, the learned trial Court framed the following issues : 1. Whether the plaintiff is entitled to the relief of injunction prayed for ? OPP 2. Whether defendants violated order dt. /- 5-6-1981 ? If so, to what effect ? OPP 3. Whether the suit is maintainable in the present form ? OPD