Dr. Kamlesh Kumar Gupta vs Smt. Meera Devi and Others

V.K. Shukla, J.—Petitioner, who is Doctor by profession, claims that at property situated at Sonkh Adda, Junction Road, Mathura, he is running Nursing Home in the name and style of K.K. Nursing Home which is duly approved and registered by the Chief Medical Officer, Mathura. Petitioner claims that property in question belonged to one Jagdish Prasad S/o of late Lala Keshav Deoji and by way of deed dated 08.05.1992 said property in question has been let out to him at the rate of Rs. 500/- per month and security amount Rs. 25,000/- was deposited. Petitioner claims that said Nursing home was being run without any interruption or interference and he has always been prudent paymaster and rent in question has also subsequently been enhanced by Jagdish Prasad in the year 1996 to Rs. 1000/- which was was also paid by him. Petitioner further claims that Jagdish Prasad has expired on 08.06.2007 leaving behind his legal heirs and representatives and defendants-respondents did not accept rent from the petitioner and petitioner claims that later on he has been threatened of forcible eviction. Petitioner has contended that incident took place in a heated manner on 06.07.2009 and thereafter petitioner who is respectable person in the society immediately approached the court below by filing original Original suit for seeking declaration of his tenancy rights upon the property in question as well as seeking permanent injunction that he may not be dispossessed from the portion under his tenancy except in accordance with law. Suit in question has been registered as Original Suit No. 448 of 2009 alongwith with the said plaint, application for temporary injunction during the pendency of suit was also moved for according relief to the effect that petitioner may not be dispossessed from the property in question except in accordance with law. Petitioner has contended that in respect of his claim he filed various documentary evidence. Petitioner has further contended that court of Additional Civil Judge(Senior Division) did not consider the application for grant of temporary injunction ex-parte even though the urgency was pointed out to the learned Court below and instead of the same court below issued notice fixing 23.07.2009 as the date for filing objections by the defendants-respondents. At this juncture present writ petition has been filed contending therein that order dated 09.07.2009 passed by court below suffers from error of law apparent on the face of the record. Petitioner has contended that he is running Nursing Home and several patients are under the treatment of the application-petitioner who are also occupying the premises in question. Forcible eviction of the applicant will result in innumerable suffering to the patients occupying Nursing Home as such exparte injunction ought to be have been accorded by the court below.

Learned Counsel for the petitioner Sri Manish Goyal contended with vehemence that trial court in the present case has failed to exercise jurisdiction vested in it and refrained to exercise the jurisdiction by issuing notice and has not applied mind to the facts and material brought on record, as such suitable orders be issued directing the defendants-respondents from not causing any interference in the peaceful possession and occupation of the applicant as well as not to forcibly evict the applicant from the premises in question except in accordance with law.

In the present case Original Suit in question has been filed giving therein details of the tenancy and also giving details of the fact that plaintiff-petitioner is in possession of the premises in question and defendants are not accepting him as a tenant and are threatening him to evict and on plaintiff being threatened cause of action has arisen.

On the presentation of the plaint in question application 7-Ga supported by an affidavit 8-Ga has been perused by trial court and the trial court has proceeded to note the fact that suit has been filed for declaration of being tenant and for granting injunction. After noticing the averments mentioned in the plaint as well as facts and circumstances trial court have recorded satisfaction that it would be expedient to hear the defendants, in this background for disposal of 7-Ga 23.07.2009 is the date fixed and not only this application 9-Ga has also been considered and same has been allowed and report of Amin has been called for by the next date fixed. All these facts and circumstances clearly demonstrated and established that as far as trial court is concerned, trial court in its wisdom had issued notice to the defendants-respondents to come forward and file their response to the averments mentioned and the date fixed in the matter is 23.07.2009 and even report of Amin has been called for. Trial court was satisfied in the facts of the case that it was not at all case to grant ex-parte injunction without hearing other side. In the facts and circumstances of the case, in exercise of its authority and jurisdiction trial court has chosen to hear the defendants and then to exercise its discretion of grant of injunction then it cannot be said to be faulty view keeping in view the averments mentioned in the application for grant of injunction supported by an affidavit. Said order in the facts of the case does not suffer from any infirmity. This Court is deliberately not dwelling on the merit of matter as to whether on the facts of the case ex-parte injunction order ought to have been passed or not, as any observation made by this Court, may influence the disposal of injunction application either way.

Learned Counsel for the petitioner at this stage placed reliance on the judgement of this Court in the case of Nagar Nigam Vs. Gorakhpur Development Authority and Others, that injunction order can be passed keeping exigency which has been pointed out. There is no dispute to the said proposition of law which has been laid down in the aforesaid case and each case has to be decided on its own facts and in the said case considering facts and circumstances this Court refused to enter on merit as injunction application was pending however, this Court till the injunction matter is decided asked the parties shall not demolish the residential building of the respondents.

Here facts are not such warranting and prompting this Court to pass exparte injunction order at this stage specially when the next date fixed in the matter is 23.07.2009 as such it is expected and trusted that on the next date fixed concerned court who is ceased of the matter to decide injunction matter will endeavour to take up the aforesaid injunction matter and proceed to decide the same on merit keeping in mind parameter provided for grant of injunction under Order 39 Rule 1 of C.P.C. It is made clear that in case for any reasons whatsoever injunction application is not heard on the said date then endeavour shall be made to decide the same within preferably within next three weeks thereafter.

Consequently, writ petition is dismissed.