Shri Umesh Agarwal vs Smt. Mridula Agarwal and Others

P.D. Dinakaran, C.J.—The writ petition is directed against the order dated 20.05.2010 of the learned District Judge, East and North Sikkim at Gangtok in Civil Misc. Appeal No. 1 of 2010 confirming the order dated 03.03.2010 of the Civil Judge, East Sikkim at Gangtok on the file of the Suit No. 1 of 2008 (original Suit No. 10 of 1994 on the file of the Civil Judge, East at Gangtok).

The writ Petitioner is the Appellant before the learned District Judge, East and North in Appeal No. 1 of 2010 and the Plaintiff in Suit No. 1 of 2008, on the file of the Civil Judge, East, laid for declaration, injunction and for consequential relief with respect to the plaint Schedule ''A'' and ''B'' properties.

The writ Petitioner/Appellant/Plaintiff obtained an order of interim injunction on 16.10.2007 against the Respondents/Defendants restraining them from proceeding with any act and doing anything concerning the B Schedule plaint property i.e. one 7 storied RCC Building and wooden house with open space, covering an area of land measuring 61'' x 103'' situated at Naya Bazar, M.G. Marg, Gangtok.

Based on the said order of interim injunction dated 16.10.2007, the writ Petitioner/Appellant/Plaintiff issued a legal notice dated 06.08.2009 to the tenant (viz. State Bank of Sikkim) of the said suit property requesting them not to pay the rent to the Defendant No. 3, in view of the order of injunction dated 16.10.2007 referred to above, and as a consequence the tenant State Bank of Sikkim also stopped payment of rent to the Defendant. Hence, the Respondent/Defendant moved the learned Civil Judge, East under Order XXXIX Rule 4 of CPC for necessary modification and variation of the order of injunction dated 16.10.2007 contending that the order of interim injunction will not restrain the Defendant/Respondent to collect the rent nor the tenant (viz. State Bank of Sikkim) from paying the rent to the Respondent/Defendant.

Appreciating the said contention of the Respondents/Defendants, the learned Civil Judge, East by order dated 03.03.2010 modified the order dated 16.10.2007 to the effect that the Respondents/Defendants is entitled to collect the rent of the premises occupied by the tenant, namely, State Bank of Sikkim. Aggrieved by the said order of the learned Civil Judge, East at Gangtok dated 03.03.2010, the Appellant Plaintiff preferred the appeal before the learned District Judge, East and North at Gangtok in Civil Misc. Application No. 1 of 2010 which was dismissed by an order dated 20.05.2010, hence the present writ petition.

Mr. Usha Ranjan Moitra, learned Counsel appearing for the Petitioner/Appellant/Plaintiff contends that the learned District Judge, East and North erred in rendering the finding that the Respondent/Defendant had not raised his claim for collecting the rent from the tenant State Bank of Sikkim of these years nor has claimed or collected the rent all these days rent from the tenant; and such finding would prejudice the trial between the parties which is still pending before the learned Civil Judge, East at Gangtok.

I do appreciate the apprehension of the learned Counsel for the Petitioner in this regard, however, I do not find any reason to interfere with the order of the learned District Judge, East and North Sikkim at Gangtok dated 25.05.2010 confirming the order of the learned Civil Judge, East at Gangtok dated 03.03.2010 for the reasons that the earlier order apprehend the Petitioner/Appellant/Plaintiff on 16.10.2007, as rightly held by the Civil Judge, East at Gangtok by his order dated 03.03.2010 as well as the learned District Judge, East and North at Gangtok dated 20.05.2010, did not restrain the Respondent/Defendant from collecting the rent from tenant nor restrained the tenant the State Bank of Sikkim from paying the rent to the Respondent/Defendant.

Hence, finding no reason to interfere with the order of the learned Civil Judge, East at Gangtok dated 03.03.2010, and, therefore, confirming the order of the learned District Judge, East and North Sikkim at Gangtok dated 20.05.2010, the writ petition is dismissed but with a direction that the learned Civil Judge, East at Gangtok shall try and pass appropriate decree in the matter based on the evidence both oral and documentary, conducting the trial on day to day basis within 60 (sixty) days from the receipt of this order and in any event without being influenced by any of the observations made either by the learned District Judge, East and North Sikkim at Gangtok in his order dated 20.05.2010 in Civil Misc. Appeal No. 1 of 2010 or by this Court in the present writ petition.

The writ petition is disposed of accordingly and both the Petitioner and the Respondents are directed to cooperate with the trial as directed above. No cost.