Sh. G.S. Gulati vs Sh. Avinder Pal Singh

Ajay Mohan Goel, J

By way of this petition, the petitioner has assailed order dated 13.08.2019, passed by the learned Appellate Court, in Civil Miscellaneous Appeal no. 25-S/14 of 2019, in terms whereof, order dated 11.04.2019, passed by the learned Trial Court, in an application filed by the present petitioner, under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure, was modified by permitting the respondent to carry out additions and alterations in the demised premises.

As none has put in appearance for the respondent despite service, accordingly he is ordered to be proceeded against exparte.

I have heard learned Senior Counsel for the petitioner and have also carefully gone through the orders passed by the learned Trial Court as well as learned Appellate Court.

In terms of the order passed by the learned Trial Court dated 11.04.2019, it was ordered that the respondent shall not sublet the premises and shall also not carry out any additions or alterations in the demised premises, without the prior permissi n f the landlord.

Learned Trial Court held that material on record clearly demonstrated that whereas the petitioner was owner of the premises, the status of the respondent was that of a tenant. Learned Trial Court also held that on the basis of an agreement to sell, the respondent could not claim himself to be the owner of the premises till a sale deed was executed in pursuance to the agreement to sell dated 25.07.2002.

In appeal, though said findings have been upheld by the learned Appellate Court, however, a modification has been made to the extent that the respondent can make additions and alterations as are permissible under law.

As per learned Senior Counsel for the petitioner, the modification made by the learned Appellate Court is not sustainable in law. Learned Senior Counsel submitted that there was no occasion for the learned Appellate Court to have had modified the order passed by the learned Trial Court once it held that the reasoning assigned by the learned Trial Court while granting interim in favour of the petitioner herein was borne out from the record. He further submitted that the right of addition and alterati n granted in favour of the tenant adversely affects the rights of the petitioner and this extremely important aspect of the matter has been ignored by the learned Appellate Court.

This Court concurs with the submissions made by the learned Senior Counsel for the petitioner. Once learned Appellate Court agreed with the findings returned by the learned Trial Court, on the basis of which interim was granted by the learned Trial Court, this Court is of the considered view that the order should not have been modified as has been done by the learned Appellate Court. Taking into consideration the dispute between the parties, any such leverage given to the respondent but obvious was liable to be abused by him. In order to protect the property, no such liberty should have been granted to the respondent once even the learned Appellate Court came to the conclusion that there was no occasion to interfere with the findings returned by the learned Trial Court granting interim in favour of he pe itioner.

Accordingly, in the light of above observations, this petition is allowed and the modification made by the learned Appellate Court in the rder passed by the learned Trial Court, vide impugned order dated 13.08.2019, is set aside and the order passed by the learned Trial court is confirmed.

Learned Senior Counsel for the petitioner submitted that a date be given to the parties to appear before the learned Trial Court. Let the petitioner through counsel appears before the learned Trial Court on 08.09.2025, on which date, notice be given to the other side by the Court.

Petition  stands  disposed  of,  so  also,  pending miscellaneous application(s), if any.