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Nasarvanji Cawasji Arjani Vs. Shahajadi Begam - Court Judgment

LegalCrystal Citation
SubjectCivil;Tenancy
CourtMumbai
Decided On
Case NumberCivil Extraordinary Application No. 312 of 1921
Judge
Reported in(1922)24BOMLR378; 66Ind.Cas.768
AppellantNasarvanji Cawasji Arjani
RespondentShahajadi Begam
Excerpt:
.....direct to the landlord-suit by the landlord against the tenant for injunction not to execute his decree-temporary injunction-appointment of receiver.;the plaintiffs owned a bungalow which they bad leased to the defendant for a term of years. the defendant sub-leased the bungalow within the period of his lease. the sub-tenant attorned direct to the plaintiffs from the expiry of the head lease of the defendant. in the meanwhile, the sublease having expired the defendant sued for and obtained a decree for ejectment against the sub-tenant. the plaintiffs, who were no parties to the suit, tiled, on the expiry of the head lease, another suit for a declaration that they were entitled to possession and for an injunction that the defendant should not take possession of the bungalow in execution..........in which there was a decree in the defendant's favour. the plaintiffs, as owners of the property, filed a suit against the defendant claiming that they were entitled to possession, and that the decree which the defendant had obtained against his sub-tenants was not binding upon them, and for an injunction against the defendant not to take possession. after the suit was filed, an application was made by the plaintiffs for a temporary injunction restraining the defendant from executing his decree against the sub-tenants. the trial court granted the injunction, and an appeal against that order was dismissed by the district judge.2. in revision it is urged for the defendant that the court had no jurisdiction to grant the temporary injunction asked for. order xxxix, rules 1 and 2, prescribe.....
Judgment:

Norman Macleod, C.J.

1. The present plaintiffs were owners of a bungalow at Panchgani which had been let to the defendant on a lease, which the plaintiffs say expired on the 30th June 1920. Meanwhile the defendant had sub-let the premises, or part of them, and as he could not get possession from his sub-tenants a suit had to be filed in which there was a decree in the defendant's favour. The plaintiffs, as owners of the property, filed a suit against the defendant claiming that they were entitled to possession, and that the decree which the defendant had obtained against his sub-tenants was not binding upon them, and for an injunction against the defendant not to take possession. After the suit was filed, an application was made by the plaintiffs for a temporary injunction restraining the defendant from executing his decree against the sub-tenants. The trial Court granted the injunction, and an appeal against that order was dismissed by the District Judge.

2. In revision it is urged for the defendant that the Court had no jurisdiction to grant the temporary injunction asked for. Order XXXIX, Rules 1 and 2, prescribe in what cases the Court can grant a temporary injunction, and it is quite clear that the plaintiffs' suit is not a suit of the nature prescribed in either Rule 1 or Rule 2. The primary object of the plaintiffs' suit is to get possession of the property which they claimed as belonging to them, on the ground that the term of the defendant's lease had expired, and accordingly possession should be given to the owner. That is an entirely different question from that which had already been decided between the defendant and the sub-tenants. The Court has no jurisdiction to restrain the defendant from seeking to get the benefit of the decree he has obtained, which has nothing whatever to do with the plaintiff's claim. What the plaintiff's ought to have asked for was the appointment of a Receiver, so that the Court might take charge of the property through its Receiver pending the settlement of the dispute between the plaintiffs and the defendant. The rule will be made absolute, and the order staying execution and restraining the applicant from executing his decree set aside, with costs throughout.


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