Flrm Ishardas Devi Chand & Anr. v. R. B. Parkash Chand & Anr.

Sikri, J. This appeal by special leave arises out of the order dated July 20, 1967, of Sub-Judge, Amritsar, dismissing an appli-cation under 0. XXXIX rr. 1 & 2, C.P.C., and s. 151, C.P.C., filed by the appellants .for grant of a temporary injunction till the disposal of the suit brought by the appellants. The appellants filed an appeal against that order to the District Judge, Amritsar, who upheld the preliminary objection of the respondents that no appeal lay against that order on the ground that the order was passed under s. 151, C.P.C., and not under O. XXXIX rr. 1 & 2. The High Court dismissed the revision filed by the appellants in limine. The appellants having obtained special leave the matter is before us.

The relevant facts may be shortly stated. Firm Ishar Das Devi Chand a:nd its two partners, Devi Chand and Manohar Lal. brought a suit for a permanent injunction restraining R. B. Par-kash Chand, respClflldent before us, from taking possession of the demised premises, namely, No. 1045/II-13, Katra Ahluwalia, Amritsar, in execution of an eviction order obtained by the res-pondent aga~mt the appellants 'and one Shri Ishar Das, as per Rent Controlle~'s order dated Feb. 22, 1967. It appears that Ishar Das, partner of the firm called Tara Chand Ishar Das, had exe-cuted a rent note, dated May 1, 1948, in favour of the respon-dent. On February 22, 1967, the Rent Contro!ler passed an order of ejectment against the fihn Tara Chand lshar Das a)!ld Shri.Ishar Das.

It ~ppears that in the eviction applicatio.n filed by the respon-dent the appellants had filed an application under s. 4 of the East Punjab Urban Rent Restriction Act, 1949,. which was dismissed. In that application an issue was raised as to whether any relation-ship of landlord and tenant existed between the appellants and the respondent.

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It was contended before the learned Sub Judge that the res-pondcnt had accepted payment of three cheques, one on March 13, 1963. forRs.1,175/-, second on April 2, 1964, for Rs. 1,875/- and the third cheque on June ·17, 1965, for Rs. 1,500/-. According to the appellants, this acceptance of the rent made them tenants under the respondent.

The learned Sub Judge wont into these facts and came to the conclusion that the appellants had not made out a prima facie case. According to the learned Sub-Judge, even if the payment had been received, as alleged by the appe!Iants, then it would not mean that the landlord accepted the occupiers of the premises as his tenants. Following Hemant Kumar v. Ayodhya _J Prasad(') and Abdul Hamid Khan v. TridirJ Kumar Chandra(')

he held that the appe!lants were sub-tenants,' and that the liability to be ejected in execution of a valid order could not be said to be an "injury" within 0. XXXIX r. 2. The Trial Court thought that the appe!lants could have other efficacious remedies to obs-truct possession under the provisions of Civil Procedure Code. According to the Trial Court, however, unless the ejectmerrrt order was set aside its execution could not be an "injury'' as contem-plated by Jaw.

It seems to us that this order dated July 20, 1967 was clearly appealable under 0. XLIII r. 1, C.P.C. Order XLIII inter alia provides:

"0. XLilI r. 1. An appeal shall lie from the following orders under the provisions of section 104, namely,:

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(r) an order under rule I, rule 2, rule 4 or rule 10 of Order XXXIX."

It is common ground that the appe!lants filed an application under 0. XXXIX rr. 1 & 2, and s. 151, C.P.C. The learned Sub Judge had to consider whether this application was compe-tent or not competent under r. 2 of 0. XXXIX. In deciding that no such application Jay under 0. XXXIX r. 2 on the ground that what the appellants were complaining of was not an injury within 0. XXXIX r. 2 he was passing an order under 0. XXXIX r. 2 itself. In appeal the appellant~ could contend that the learn-ed Sub Judge had misconstrued 0. XXXIX r. 2, including the word "injury".

The preliminary objection· of the respondemt before the learn-ed District Judge that the order dated July 20, 1967, of the Sub-Judge was passed under s. 151, C.P.C., and not under 0. XXXIX rr. } &_ 2, C.P.C., is not sound because in holding that 0. XXXIX .r. 2 did not apply the .]earned Sub Judge was not exercising his inherent powers. What the learned District Judge seems to have done is to hold that the application for temporary injunction did not fall within 0. XXXIX r. 2 and, therefore, no appeal lay. This

(I) A.l.R, 1957 M.B. 9S. (2) A.l.R. 1953 Asi. 104.

680 SUPllEMI! CO~T Rl!PORTS [1969) 3 s·c.R. reasoning is really on the merits of the case and not relevant to the pre!imi,!lary objection raised by the respondent.

We must, therefore, hold that the District Judge and the High Court erred in holding that no appeal lay against the order of the Trial Court, dated July 20, 1967.

v Two courses are now open to us; one, that we should set aside the order of t.'le District Judge and direct him to decide the appeal on the merits, and the other, that we should dispose of the matter here. We were informed by the learned counsel for the respon-dent that the ejectment order dated February 22, 1967, had bee\11 set aside and the application for temporary injunction had become inlructuous. But the !Camed counsel for the appellants says that the High Court, in appeal, might restore that order, and the matter should be remitted to the District Judge.

It seems to us that in exercise ot the powers under Art. 136 we should not interfere with the order of the District Judge. Qn the merits there is not much to be said in favour of issuing a tem-porary injunction because the appellants have not made out a prima facie case. The application of the appellants under s. 4 of the East Puujab Urban Rent Restriction Act stood di•missed and the order dismissing that application has not been challenged by the appellant~ up-to-date. In the proceedings the respondent had denied that there was any relationship of landlord and tenant existing between the appellants and the respondent. Further the learned Sub I udge, after holding that the appellants had been guilty of !aches and delays, came to the conclusion that the bal-ance of con'venieni:e was more in favour of the respondent than in favour of the appellants. The learned Sub Judge does not seem to have exercised his discretion capriciously or arbitrarily and no case for interference has been made out.

In the result the appeal fails and is dismissed, but under the circumstances there will be no order as to costs.