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PETITIONER: FIRM ISHARDAS DEVI CHAND & ANR.

       Vs.

RESPONDENT: R.   B. PARKASH CHAND & ANR.

DATE OF JUDGMENT: 13/02/1969

BENCH: SIKRI, S.M. BENCH: SIKRI, S.M. BACHAWAT, R.S. HEGDE, K.S.

CITATION:  1969 AIR  938            1969 SCR  (3) 677  1969 SCC  (1) 664

ACT: Code  of  Civil  Procedure, O. XXXIX r. 2 and  O.  XLIII  r. 1--Order  of  trial  court  dismissing  an  application  for temporary  injunction on the ground that it did not  satisfy the  terms of O. XXXIX r. 2 was an order under that  rule-It was appealable under O. XLIII r. 1.

HEADNOTE: The appellants who claimed to be tenants of the  respondents in  respect of certain premises in Amritsar brought  a  suit for  a  permanent injunction restraining  the  latter  ’from taking  possession of the said premises in execution  of  an eviction  order  obtained  by  the  respondent  against  the appellant and another, as per Rent Controller’s order  dated February 22, 1967.  They also filed a petition purporting to be  under  0.  39  r. 2 and s. 151  of  the  Code  of  Civil Procedure for grant of a temporary injunction till the  dis- posal  of the suit.  The trial court, namely the  sub-Judge, found  that the appellants were sub-tenants and not  tenants and that the liability to be ejected in execution of a valid order  could not be said to be an ’injury’ within 0. 39,  r. 2.  On this view the trial court dismissed  the  application for  temporary injunction.  The appellants filed  an  appeal before  the  District  Judge  which  was  dismissed  on  the preliminary  ground  that  no appeal lay.   The  High  Court dismissed  the revision filed by the appellants  in  limine. With special leave the appellants came to this Court. HELD  :  (i)  The  order of  the  trial  court  was  clearly appealable  under O. XLIII r. 1 C.P.C. which provides  inter alia  for  an appeal against an order under O. XXXIX  r.  2. [679 D] It   was  common  ground  that  the  appellants   filed   an application  under O. XXXIX rr.  1 and 2 and s.  151  C.P.C. The   learned  Sub-Judge  had  to  consider   whether   this application was competent or not competent under r.    2  of O. XXXIX.  In deciding that no such application lay under O. XXXIX  r.  2  on the ground that what  the  appellants  were complaining of was not an injury within O. XXXIX r. 2 he was passing an order under O. XXXIX r. 2 itself.  In appeal  the appellants  could  contend that the  learned  Sub-Judge  had

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misconstrued O. XXXIX r. 2 including the word ’injury’. [679 F] The  preliminary  objection  of the  respondent  before  the learned  District Judge that the order of the Sub-Judge  was passed under s. 151 C.P.C. and not under O. XXXIX rr. 1  and 2 C.P.C. was not sound because in holding that O. XXXIX r. 2 did  not apply the learned Sub-Judge was not exercising  his inherent powers. [679 G-H] Hemant  Kumar  v. Ayodhya Prasad, A.I.R. 1957  M.B.  95  and Abdul  Hamid Khan v. Tridip Kumar Chanda, A.I.R.  1953  Ass. 104, referred to. (ii) On  merits  however the appeal had to be  dismissed  as there  was  not  much  to be said in  favour  of  issuing  a temporary injunction because the appellants had not made out a  prima  facie case.  In the exercise of its  powers  under Art.  136 interference by this Court with the order  of  the district Judge would not be justified. [680 D] 678

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1709  of 1968. Appeal  by special leave from the judgment and  order  dated May  22, 1968 of the Punjab and Haryana High Court in  Civil Revision No. 422 of 1968. Bishan   Narain,  B.  Datta  and  O.  C.  Mathur,  for   the appellants. M. S. Gupta and S. K. Dhingra, for respondent No. 1. The Judgment of the Court was delivered by Sikri,  J.  This appeal by special leave arises out  of  the order   dated  July  20,  1967,  of   Sub-Judge,   Amritsar, dismissing an application under O. 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 and its two partners, Devi Chand and Manohar La], brought a suit for a permanent injunction restraining R.  B. Parkash Chand, respondent before us, from taking  possession of  the  demised  premises, namely,  No.  1045/11-13,  Katra Ahluwalia,  Amritsar,  in  execution of  an  eviction  order obtained  by the respondent against the appellants  and  one Shri  Ishar Das, as per Rent Controller’s order  dated  Feb. 22,  1967.  It appears that Ishar Das, partner of the  firm called Tara Chand Ishar Das, had executed a rent note, dated May  1, 1948, in favour of the respondent.  On February  22, 1967,  the  Rent  Controller passed an  order  of  ejectment against the firm Tara Chand Ishar Das and Shri Ishar Das. It  appears that in the eviction application’ filed  by  the respondent 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 relationship of landlord and tenant  existed between the appellants and the respondent. It was contended before the learned Sub Judge that the  res- pondent had accepted payment of three cheques, one on  March

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13,  1963, for Rs. 1,175/-, secondon April 2,1964,  for  Rs. 1,875/and  the  third  cheque  on June  17,  1965,  for  Rs. 1,5001-. 679 According  to the appellants, this ’acceptance of  the  rent made them tenants under the respondent. The learned Sub Judge went 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  appellants, then  it  would  not mean that  the  landlord  accepted  the occupiers of the premises as his tenants.  Following  Hemant Kumar  v. Ayodhya Prasad(1) and Abdul Hamid Khan  v.  Tridip Kumar  Chandra(2)  he  held that the  appellants  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 O.  XXXIX r. 2. The Trial Court thought that the  appellants could have other efficacious remedies to obstruct possession under the provisions of Civil Procedure Code.  According  to the Trial Court, however, unless the ejectment order was set aside its execution could not be an "injury" as contemplated by law. It  seems  to  us that this order dated July  20,  1967  was clearly  appealable under O. XLIII r. 1, C.P.C. Order  XLIII inter alia provides : "O.  XLIII  r.  1. An appeal shall lie  from  the  following orders under the provisions of section 104, namely, (r)  an  order  under rule 1, rule 2, rule 4 or rule  10  of Order XXXIX." It   is  common  ground  that  the.  appellants   filed   an application  under O. XXXIX rr. 1 & 2, and S. 15  1,  C.P.C. The   learned  Sub  Judge  had  to  consider  whether   this application was competent or not competent under r. 2 of  O. XXXIX.   In deciding that no such application lay  under  O. XXXIX  r.  2  on the ground that what  the  appellants  were complaining of was not an injury within O. XXXIX r. 2 he was passing an order under O. XXXIX r. 2 itself.  In appeal  the appellants  could  contend that the learned  Sub  Judge  had misconstrued O. XXXIX r. 2, including the word "injury The  preliminary  objection  of the  respondent  before  the learned  District Judge that the order dated July 20,  1967, of  the Sub-Judge was passed under S. 151, C.P.C.,  and  not under  O. XXXIX rr. 1 & 2, C.P.C., is not sound  because  in holding  that  O. XXXIX r. 2 did not apply the  learned  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 O. XXXIX r. 2 and, therefore, no appeal lay.  This (1) A.I.R, 1957 M.B. 95, (2) A.1.R. 1953 Ass, 104, 680 reasoning  is  really  on the merits of  the  case  and  not relevant   to  the  preliminary  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. Two  courses  are now open to us; one, that  we  should  set aside  the  order of the 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 respondent that the ejectment  order dated  February  22,  1967,  had been,  set  aside  and  the application for temporary injunction had become infructuous. But  the  Learned counsel for the appellants says  that  the

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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 of the powers under Art. 136 we  should  not  interfere with the order  of  the  District Judge.   On,  the  merits there is not much to  be  said  in favour  of  issuing  a  temporary  injunction  because   the appellants  have  not  made out a  prima  facie  case.   The application of the appellants under s. 4 of the East  Punjab Urban  Rent  Restriction Act stood dismissed and  the  order dismissing  that application has not been challenged by  the appellants  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 Judge,  after  holding  that  the ’appellants  had been guilty of laches and delays,  came  to the  conclusion that the balance of convenience 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. G.C.                           Appeal dismissed, 681