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Bhupatlal Govindji Vs. Bhanumati Dayalal - Court Judgment

LegalCrystal Citation
SubjectTenancy;Contract
CourtGujarat High Court
Decided On
Case NumberSecond Appeal No. 353 of 1982
Judge
Reported inAIR1984Guj10; (1983)2GLR1137
ActsSpecific Relief Act - Sections 34 and 39; ;Code of Civil Procedure (CPC),1908- Sections 107
AppellantBhupatlal Govindji
RespondentBhanumati Dayalal
Appellant Advocate S.M. Shah, Adv.
Respondent Advocate B.M. Shah, Adv.
Cases ReferredJoynarain Sarogi v. Brojendra Nath Misra
Excerpt:
.....possession, use and occupation and enjoyment of godown and declaring respondent as tenant and in possession of premises - no documentary evidence that premises taken from 'x' - no receipt in respect of payment of rent - amounts not debited as rent of godown in account books of his business - expenditures after repairs of godown not admitted in account books - no documentary evidence showing appellant to be tenant - held, lower appellate court rightly granted mandatory injunction. - - the learned trial judge, however, dismissed the plaintiff's suit holding that the plaintiff had failed to prove that she was the tenant right from the time of her deceased husband dahyalal. the i second letter is a letter allegedly written by the defendant to the plaintiff and that is also, like the..........from interfering in any way in the possession, use and occupation and enjoyment of the above said suit godown by the plaintiff.'4. it is this judgment, that is assailed by the original defendant in this second appeal.5. the substantial question on which this appeal was admitted is as under:'(a) whether in a suit for declaration simplicity, which has been dismissed by the trial court and in which in the appeal it is admitted case of the original plaintiff that she is no longer in possession of the suit premises can there be a decree passed for mandatory injunction directing the original defendant to handover possession of the suit premises to the original plaintifffollowing question was permitted at the hearing - (b) whether the additional evidence has been legally permitted to be.....
Judgment:

1. This is a second appeal filed by the original defendant of the Regular Civil Suit No. 663 of 1976 dismissed in his favour and against the present respondent by the learned Joint Civil Judge, Junior Division, Jamnagar, whose judgment had come- to be set aside by the learned District Judge in this respondent plaintiff's regular Civil Appeal No. 138 Of 1982 in the District Court at Jamnagar.

2. The respondent-plaintiff had filed the suit against the present appellant defendant for a declaration that it was she who was the tenant and occupier of a godown situated in the City of Jamnagar ever since about the year 1955 after the defendant had surrendered Us tenancy of the godown in favour of the landlord, that after her husband's death in the year 1973 she was paying rent to the landlord and was enjoying the property as a tenant and that the defendant, the elder brother of her late husband, was interfering with her possession and she had, therefore, prayed for a declaration of her status as a tenant in respect of the said godown and for An injunction restraining the defendant from interfering with her possession of the godown in question, During the pendency of the suit an injunction restraining the defendant from interfering with the possession of the plaintiff was granted and was operative. The learned trial Judge, however, dismissed the plaintiff's suit holding that the plaintiff had failed to prove that she was the tenant right from the time of her deceased husband Dahyalal. Obviously, with the dismissal of the suit, the interim injunction came to an end. The judgment of the learned trial Judge was pronounced on 30th June. 1982 and the appeal in question had come to be filed on 9th July, 1982. During this interregnum, i.e., period between the dismissal of the suit and the filing of the appeal, the defendant put some articles of his in the godown and applied his own locks on the godown and also fixed some iron stripes across the door, in order to tighten the security. The matter was heard by the learned District judge, who raised t he following two points for determination :

'(1) Whether the learned trial Judge has erred in his judgment and decree under appeal.

(2) If yes, whether the appellant Plaintiff is entitled to the mandatory injunction against the respondent-defendant as prayed for.'

3. The learned District Judge held that the plaintiff was proved to be the tenant of the premises since the year 1955, that it was she who was paying the rent after her husband's death and before that her husband was paying the rent and that the defendant had, during the interval of above-mentioned 9 days, created obstruction in the plaintiff's possession. Therefore, the learned District Judge7 granted a mandatory injunction. The operative part of the learned Judge's judgment is reproduced below:

'The suit of the plaintiff against the defendant is hereby decreed and it is hereby ordered and declared that the plaintiff is a tenant and in the possession of the premises under dispute.

The defendant, is hereby ordered -and directed to remove the locks and the staples applied by him and to hand Over the possession of the premises to the plaintiff lady.

The defendant, his servants and agents are hereby permanently restrain-. ed from entering into the above said godown or from interfering in any way in the possession, use and occupation and enjoyment of the above said suit godown by the plaintiff.'

4. It is this judgment, that is assailed by the original defendant in this Second Appeal.

5. The substantial question on which this appeal was admitted is as under:

'(a) Whether in a suit for declaration simplicity, which has been dismissed by the trial Court and in which in the appeal it is admitted case of the original Plaintiff that she is no longer in possession of the suit premises can there be a decree passed for mandatory injunction directing the original defendant to handover possession of the Suit premises to the original plaintiff

Following question was permitted at the hearing - (b) Whether the additional evidence has been legally permitted to be produced at the appellate stage and whether the additional documents can be straightway accepted without allowing any opportunity to the present appellant to controvert and rebut the same.'

So, above are the two questions of law which we required to be dealt with in this second appeal. I shall take up the second point first.

6. The learned appellate Judge allowed the plaintiffs application Ex. It and permitted production of two letters and gave, them to numbers Exs.18 and 19. The learned Judge says in this regard as follows in para 27 of his judgment

'The above said two letters admittedly written by Bhupatlal require to be exhibited and accordingly they are exhibited as Exs. 18 and 19 respectively.'

The two letters, as the learned Judge says, show that after 'the injunction was vacated this defendant addressed the letter Ex. is to the landlord informing him that the litigation between him and his brother's widow (Plff) was decided in his favour and the landlord should submit the accounts of rent to him and that he the defendant would pay up the rent which was found due. The letter further purports to state that the defendant was in actual possession and the locks of the premises also belonged to the defendant. Lastly, the said letter directed the landlord not to have any truck with the plaintiff, Blianumatium In respect of the premises. The I second letter is a letter allegedly written by the defendant to the plaintiff and that is also, like the earlier letter, dt. 1-7-1982 By this letter this defendant told the plaintiff that she had lost the litigation, that after the pronouncement of the judgment and the decree, he had applied his staples and locks on the premises and he warned her that she should not enter the premises and if any loss or damage was occasioned to him. She would be held responsible. Mr. S. K Shah complained that there was no occasion for the learned District Judge to admit these documents and he secondly contended that these two documents could not be said to have been duly proved. The reason for allowing these documents is stated by the learned Judge. The learned' Judge' had to confer in view of the advantage taken by the defendant of flouting the future continuance of the interim injunction to be granted by the appellate Court, whether the mandatory injunction should be granted or not. For this purpose, the learned Judge allowed those document which were not in existence till the judgment had come to be pronounced by the learned trial Judge. The learned Judge seems to be think that in order to 'decide that question, these letters furnished almost clinching proof. So, that particular part of the reason that found favour with the learned appellate Judge cannot be quarreled with. The second question is regarding the formal if of these two letters. The learned from Judge says that as far as the authorship of the letters was concerned, there was no controversy. Mr. S hah for the appellant, very seriously disputed the word 'admitted' written by the learned judge regarding these documents. I do not think the learned judge had any reason to write something which was not true. It is no doubt true that on the application Ex. 16 filed on behalf of the plaintiff before the learned District Judge the learned Advocate, made an endorsement objective The reasons for exhibiting these documents are set out by the learned Judge in his judgment.This means that after Exs.16 was presented and formal objection was noted by the defendant's advocate, much water must have allowed beneath the bridge. As the learned Judge ''was inclined to admit the documents, the formal proof in all probabilities must have been dispensed with otherwise, the learned Judge would not have used the word 'admitted'. The authorship. of these two letters must have been admitted in the course df the hearing before the learned Judge. So I do not uphold the second contention put forward by Mr. S. M. Shah before me.

7. This takes me to the first question the learned appellate Judge has in para 17 of his Judgment enumerated certain inferences that had been deduced from the evidence of this appellant, Bhupatlal at Ex. 96. For clarity's sake I will reproduce them below

'1. That though he has taken the premises according to him from Harjivandas, he has no documentary evidence for the same.

2. That he has never taken the receipt in respect of the payment of, the rent made by him Ex. 72 the Tax Appeal is in respect of year 1972-73.

3. That he has not debited the amounts paid as rent of the godown in the account books of his business or that in the alternative, he has debited the above said amounts in the account books but be is not in a position to produce the same before the Court.

4. That the complaint filed by him before the police has not been recognised and progressed by the police.

5. That the rent receipts from Exs. 45 to 65 are admittedly given by landlord Harjivandas to the plaintiff or her husband.

6. That the expenditures made after the repairs of the godown have not been admitted in the account books.

7. That excepting his oral say, he has nothing to introduce before the Court in the form of the documentary, evidence to show that he is the tenant in the premises under dispute.

8. That according to him after the filing of the suit the plaintiff has entered into the possession of the premises.'

8. The learned Judge then in para, 23 of his judgment has concluded as follows: -

'23 Therefore, the conclusion would be that the plaintiff has been able to establish that she is the tenant of the premises, after year 1975 and that, she pays the rent. It is also equally established, that the defendant has not paid the rent and that he has no docurnentary evidence to show that he hadpaid the rent and the landlord had accepted the same, and that he bad incurred the expenses of repairs of the godown. Moreover, his save is that they had no occasion to go to the abovesaid godown after the year 1974. Vaikuntharay . the servantmust have gone to the.godown after 1974 if the defendant was in-the possession ofthe godown for storing certain scrarp materials. It. therefore, becomes clearthat the learned trial Judge hascommitted an error in coming to the conclusion that the plaintiff is not the tenant of the premises under dispute. This point,therefore, requires to be. decided in affirmative and the same is hereby acording1y decided:'

This is a finding of fact and, I, therefore have -to act on, it. The net effect of this acceptance of the conclusion is that the plaintiff and her predecessor, . husband were in possession of this godown right from the year, 1955. She was in possession even during the pendency of these it till the adinterim injunction stood unfortunately I vlicated, because of the dismissal of the suit at the hands of the learned trial, Judge,'1khich took place on 30th June 1982. The letters Exhs. 18 and 19 show that being overjoyed with ' his success in the trial Court, the defendant put his-locks and staples (iron stripes) across the door, so as to prevent the plaintiff from entering 1he godown, and is well-nigh ' possible that he might have introduced into the godown some Articles of his own also. The question is whether this advantage taken by the defendant during the short period of nine days, when the injunction did not, operate can be -said to be amounting to taking an undue advantage of, the inter regnum or vacuum created by the procedural delays t4at are inevitable in the modern system administration of justice. In the facts and circumstances of the case and -in the light 'of the findings recorded by the learned Judge which I am bound to accept, it is to be held that this defendant-appellant tried' to change the situation before the appellate Court could do anything-in the Matter. An appeal is a continuation, of the suit and if any one- takes advantage of the Court's procedures and changes the situation to the material, disadvantage of the other side, in the meantime and if ultimately, the action which facilitated the commission of the act on the part of the persons held unauthorised, the Court should put the party in the position in which it would have been, before that vacuum or interregnum created by the procedural delays. Mr. S, M. Shah very vehemently submitted that in a situation like this, because of some developments, may be due to the legal technicalities, the proper and the only course left open to the plaintiff, was to seeks suitable amendment of the plaint and to seek a relief of possession but this sort of mandatory injunction coupled with delivery if possession could not begranted by the Court of its own, without there being any formal prayer. The argument. No doubt, is to be considered with concern, bit whenever it appear to a court of that a party is shrewd enough to over reach the legal process the Court should rut its too down and see that this shrewdness does not stand rewarded In other words, if necessary, the clock' 19'hoWd be made to move back in order restore the legal position which would have continued, had that party not taken benefit of that intervening period.

9. In, this view of the matter, I find that the learned appellate Judge was right in granting the mandatory injunction. , It is no doubt true that the learned appellate Judge while directing the defendant to remove the locks on the premises, also has directed to hand over delivery of possession without any 0court fees having, been paid by, the original plaintiff. It is to be, remembered that the effective relief that has been granted is the relief of injunction and delivery of possession is a consequential relief. The question of court-fees need not worry the defendant-appellant because ultimately it is for the Court and the government to deal with it. I would not say that the question of court-fees would not arise, because that the Court has done has been done by it as a part of it's, duty to uphold 1he administration of justice. Here the question of court fees becomes immaterial.

10. The legal view Which have con firmed alone, is a well-recognised one.The judgment that had appealed to the learned District Judge also was cited before me. It is 'the judgment' of the Patna High Court in the case of Joynarain Sarogi v. Brojendra Nath Misra AIR 1951 Pat 546. In this judgment there is reference to two english,. Judgments and also to three juddgment of her high Courts. It is no doubt true that this is a case of granting a mandatory injunction at the interlocutorv stage, but .in my view, the principles would remainthe same when we have to deal with final orders. The principles that stand good at the interim stage for bringing into existence the situation-ante can, and in my view must, be extended to the situation that has been changed during the pendency of the litigation. I would go a step forward and say that if something is good at the interim stage must be necessarily equally 900d at the final stage.

11. In above view of the matter, I dismiss this second appeal, but having regard to the relations of the parties, I direct that they should bear their own costs.

12. Appeal dismissed.


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