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AVTAR SINGH versus RAJINDER SINGH

High Court of Punjab and Haryana, Chandigarh

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Avtar Singh v. Rajinder Singh - CR-1242-2004 [2006] RD-P&H 4306 (18 July 2006)

C.R.No.1242 of 2004 [1]

THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

Civil Revision No.1242 of 2004

Date of Decision: 25 - 7 - 2006

Avtar Singh ........Petitioner

v.

Rajinder Singh ........Respondent

CORAM: HON'BLE MR.JUSTICE P.S.PATWALIA
***

Present: Mr.K.K.Singla, Advocate

for the petitioner.

Mr.Ashok Singla, Advocate and

Mr.Rajan Bansal, Advocate

for the respondent.

***

P.S.PATWALIA, J.

The present revision petition challenges the orders passed by the learned Civil Judge (Jr.Division), Barnala and the learned Additional District Judge, Barnala dismissing an application for ad interim relief filed under Order XXXIX Rules 1 and 2 CPC by the petitioner-plaintiff.

Avtar Singh petitioner filed a suit for permanent injunction against respondent Rajinder Singh on the allegation that the shop in dispute was in his possession as a tenant for the last about three years and he was carrying on the business under the name and style of M/s Avtar Lamination and Chappal Store.

He contended that earlier the shop in dispute was on rent from the landlord i.e.

Gurudwara Singh Sabha, Barnala with one Gurmit Singh. About three years back, said Gurmit Singh delivered possession of the shop in dispute to the petitioner- plaintiff with the consent of the landlord. Since then the petitioner-plaintiff is paying the rent to the landlord and is in possession as a tenant. The landlord, however, is issuing receipts in the name of Gurmit Singh. He further states that C.R.No.1242 of 2004 [2]

the respondent-defendant has no concern with the shop in dispute.

The case of the respondent-defendant on the other hand is that he is in possession of the property in dispute as a tenant. Rent is being paid by him regularly. On 1.9.2001 Gurmit Singh surrendered possession to the landlord and thereafter the respondent-defendant got the property in dispute on rent with effect from 1.9.2001 at Rs.1,000/- p.m. Rent note was executed on 6.9.2001. He states that the petitioner-plaintiff was serving as a Helper when Gurmit Singh was in possession of the shop. Thereafter, he started working as a Helper with the wife of the respondent-defendant. It is further stated that the petitioner-plaintiff is related to the respondent-defendant.

In replication, the petitioner-plaintiff pleaded that in fact he had got the shop from Gurmit Singh by paying Rs.2,40,000/- to him as Pagri in May, 2000.

The trial Court after considering the evidence on the record dismissed the application. While doing so, the trial Court relied upon the receipts produced by the respondent-defendant along with a copy of the rent note. A writing executed by Gurmit Singh was also produced by the respondent-defendant.

It is these findings which have been affirmed by the lower Appellate Court while observing as hereunder:-

"The respondent produced a number of receipts along with copy of rent note. Rent note dated 1.9.01 is in the name of the respondent.

Gurmit Singh had also executed a writing in favour of the respondent. Writing is dated 6.9.01. The respondent deposited rent with the landlord. Receipt dated 6.9.01 is in the name of the respondent. Second receipt dt. 7.11.02 is also in the name of the respondent. Third receipt is dated 2.12.02. All this show that there is no rent note in favour of the appellant. No receipt issued by the landlord that the rent is being recovered from the appellant. No entry of the house assessment register, maintained by the Municipal C.R.No.1242 of 2004 [3]

Committee, to the effect that the appellant is in possession. As per FIR, payment was made to Rajinder Singh on behalf of Gurmit Singh. As per replication Rs.2,40,000/- was paid to Gurmit Singh directly. If Gurmit had received Rs.2,40,000/- then where is this receipt. If Gurmit Singh had delivered possession to the appellant with the consent of the landlord then landlord should have issued receipts in the name of the appellant. Receipts produced on behalf of the appellant simply show that rent was deposited by the appellant on behalf of Gurmit Singh. According to the respondent, Gurmit Singh came in possession w.e.f. 7.2.2k, and had vacated the shop, in dispute, on 1.9.01. Prior to 7.2.2k, no receipt in the name of Gurmit Singh. The appellant wants that on the basis of some photographs or receipts in he name of Gurmit Singh, stay application be accepted.

Account books not on the file, that the appellant is purchasing/selling the articles lying in the shop. If the appellant is in possession from 31.5.99, then why no receipt in his favour. The appellant could easily request the landlord to issue receipt, in his favour. If Gurmit Singh had delivered possession to the appellant, then there should be some writing, but no writing on the file." In the present revision petition, learned counsel for the petitioner- plaintiff has contended that in fact it is the petitioner-plaintiff who is in possession of the shop and is doing business in the same. He contended that in the written statement filed by the respondent-defendant, it had been admitted that the possession of the shop was with the petitioner-plaintiff and he was doing the business of running a Chappal Store and Lamination in the said shop. A part of the reply filed by the respondent-defendant as reproduced in the grounds of appeal after translating the same in English reads as under:- "Because defendant is doing job in the Electricity Board so the wife C.R.No.1242 of 2004 [4]

of the defendant is doing the business of Chappal Store and Lamination, plaintiff being the relative of defendant offered that plaintiff will help the wife of defendant in the above stated business as helper and the wife of the defendant will give some amount out of the profit. On this offered of the plaintiff defendant and wife of defendant agreed and thus plaintiff started helping to Surinder Kaur in the business as helper and Surinder Kaur started paying some amount of profit. After some time plaintiff started saying to Surinder Kaur that it does not look nice to do the business by Surinder Kaur being lady and plaintiff also said that he alone will look after the business of Surinder Kaur and Surinder Kaur will be entitled for the profit of Business and plaintiff will only get some amount out of the profit in lieu of the help given by him and Surinder Kaur can come to open the shop in the morning and to close the shop in the evening.

Thus, Surinder Kaur came in the influence of plaintiff and started sitting in the shop only in the morning and evening. The lock of the shop was opened by Surinder Kaur in the morning and shop was locked in the evening by Surinder Kaur. The plaintiff with the bad intention while expressing the business being carried out in the shop as his own business has filed a false case in fact the owner of the business in the shop in dispute is Surinder Kaur wife of defendant and defendant is in possession of the shop through his wife Surinder Kaur."

A perusal of the reply filed by the respondent-defendant shows that the respondent also admits that at the time of filing of the reply, it is the petitioner- plaintiff who was carrying on the business in the shop in dispute and had promised to give a part of the profit of the business to the respondent's wife. A reading of the reply extracted above certainly shows that the business in the shop is carried on C.R.No.1242 of 2004 [5]

by the petitioner-plaintiff. Apart from this the petitioner-plaintiff has placed on record photographs as Annexures P-33 to P-37 which clearly show that the name of the shop is displayed as Avtar Lamination and Chappal Store. Thus, the name of the shop is also in the name of the petitioner-plaintiff. Apart from this, the petitioner-plaintiff has placed on record numerous bills showing purchase of stock of chapels etc. for being retained in the shop which are also in the name of the petitioner-plaintiff.

On the basis of the pleadings in the reply as extracted above and the documents aforementioned, I am prima facie of the view that possession of the shop is with the petitioner-plaintiff. It is further apparent from the documents on the record that the petitioner-plaintiff is carrying on the day to day business in the said shop and earns his livelihood from there. On the other hand, the respondent- defendant admittedly is an employee of the Electricity Board. Therefore, in case the petitioner-plaintiff is not protected by an injunction, he will lose his livelihood.

It would not be possible to compensate him for this loss of livelihood if he is to ultimately succeed in the suit. Irreparable loss would therefore be caused to the petitioner-plaintiff and the balance of convenience is also in favour of the petitioner-plaintiff that his possession should be protected by an ad interim injunction.

For the reasons mentioned above, the present revision petition is allowed. The orders passed by the Courts below are set aside and an ad interim injunction is granted in favour of the petitioner-plaintiff protecting his possession till the disposal of the civil suit. It may be clarified that anything said in this order is only for the disposal of ad interim injunction and would have no bearing in the suit which would be decided on the basis of the pleadings and the evidence produced therein.

( P.S.PATWALIA )

July 25th, 2006. JUDGE

RC


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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