1. In rarest of rare cases the Court passes the order restoring the possession to the tenant at the interlocutory stage. This is one of such cases where the Courts below have done so, and in my view rightly so.
2. The respondent-plaintiff in his suit being Regular Civil Suit No. 150 of 1992 has averred that he is the tenant of the petitioner-defendant in a shop situated in Rajkot since last 18 years at a monthly rent of Rs. 75/- and he is carrying on his business in the rented shop in the name and style of Jay Jalaram Sweet Mart. It is the specific case of the respondent that the petitioner does, not give rent receipt. The respondent was required to go to Talod town to see the health of his brother's wife where he stayed for abouts to 4 months and in his absence his wife and son were carrying on the business in the rented shop. Owing to the sickness of his wife the suit shop was not opened for some time and remained closed. On 23-7-1992 the petitioner illegally broke open the rented shop and took possession of the shop and the goods of the respondent lying in the suit shop. On coming to know about the same, the respondent on 24-7-1992 filed a criminal complaint being Criminal Case No. 415 of 1992 in the Court of learned J.M.F.C., Rajkot. To the surprise of the respondent, in his absence, the petitioner filed a suit being Regular Civil Suit No. 177 of 1991 in the Court of Small Causes, Rajkot for eviction of one Ashwinkumar showing him as tenant of the suit premises. It is further the case of the respondent that the petitioner in collusion with said Ashwinkumar had obtained decree of eviction which is clear from the fact that in the said suit, address of Ashwinkumar was shown at village Bedla and summons was also served on that address. The present respondent was not joined in the said suit. In any case, ex parte decree was obtained by fraud in the said suit, and therefore, according to the respondent, decree obtained by the petitioner is void ab initio. As per the say of the respondent, one Palvantrai Somiya was originally a tenant of the suit shop; on his vacating the suit premises in 1979, the respondent has become a tenant of the suit shop and on the date of filing of Regular Civil Suit No. 177-of 1991 by the present petitioner and even on the date of execution of the decree passed in the said suit, the respondent was in possession of the shop as a tenant. The respondent, therefore, filed the present suit for a declaration that the judgment and decree passed in Regular Civil Suit No. 177 of 1991 is null and void and not binding to the respondent, to set aside the same and for possession of the rented shop and goods belonging to respondent, illegally seized, and for temporary injunction restraining the petitioner from transferring, assigning or selling to any other person the suit shop till the disposal of the suit. Similar relief by way of ad interim order was also prayed vide Exh. 5 for restoration of the possession of the suit shop and goods to the respondent.
3. The petitioner had appeared in the suit and opposed Exh. 5. He also denied the averments made in application Exh. 5. According to the petitioner, the respondent was never a tenant of the suit shop and the suit filed by him is frivolous, vexatious and the same is required to be dismissed. It, is further stated by him that the respondent is not entitled to the possession of the suit shop as the same has been let out to Ashok Mandap Service from 1-8-1992, and therefore, the possession of the rented shop cannot be ordered to be restored to the respondent.
4. Both the Courts below after considering and appreciating the material on record granted relief of restoration of possession of the suit shop to the respondent which is under challenge in this Revision Application.
5. Mr. Nanavaii, learned Advocate for the petitioner, submits that by granting relief of restoration of possession to the respondent, the Courts below have virtually granted decree in favour of the respondent at the interim stage which is not permissible. He has invited my attention to the following observations made by Their Lordships of the Supreme Court in the case of Dorab Cawasji Warden v. Coomi Sorab Warden, AIR 1990 SC 867 (at p. 873, Para 14) :
"The relief of interlocutory mandatory injunction are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are :
(1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.
(2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.
(3) The balance of convenience is in favour of the one seeking such relief.
6. Mr. Nanavati after placing reliance on the word "last non-contested status" submitted that when there is a contest about the status about the tenancy which in the submission of Mr. Nanvati is there in the present case, the Court is not entitled to grant" relief to the respondent. In my view, the submission is misconceived. One cannot pick up a word from the judgment and ignore the remaining part of the judgment. Reading the observation of the judgment; I think it will be of more help to the respondent than to the petitioner.
7. True, when there is contest or controversy between the parties about the status, the Court normally refrains from granting the final relief at an interlocutory stage, but Court is certainly entitled to scan the so-called defence about the denial of status of tenancy raised by the other side, otherwise Court would be encouraging the dishonest defence and allowing the party to live at the mercy of the opponent till his rights are finalised at the end of the trial and thereafter, in appeal and what not? It is very easy for the opponent in any case to deny the status of one party who goes to Court after doing illegal acts and then to contend that no final relief be granted at an interlocutory stage. The Court in such situation cannot sit and watch the proceedings as a silent spectator and show its helplessness. The Court in this situation can certainly take recourse to the guidelines narrated by the Supreme Court in DORAB's case (AIR 1990 SC 867) (supra), namely, whether the plaintiff has a strong case for trial which shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction? Whether it is necessary, to prevent irreparable or serious injury which normally cannot be compensated in terms of money? Whether the balance of convenience is in favour of the one seekingsuch relief?
8. Bearing the aforesaid principle in mind, let us look into the present case. There is sufficient evidence on record which would go to show that the respondent was in possession of the suit premises immediately preceding the filing of the suit. The Courts below have relied upon mark 4/5 and 4/6 which are the electric bills for consumption of electricity during the month of July-August, 1991 which suggest that the respondent was in possession of the suit shop as both the bills are in the name of the respondent. There are receipt mark 4/8 and 4/9 produced by the respondent issued by the Municipal Corporation dated 28-5-1992. There are other bills also -- mark 4/10 and 4/11. After considering the same, the Courts have observed that these bills which the respondent was possessing were for the months of March, April, May and June, 1991. Over and above, the document Mark 4/12; is the complaint produced by the respondent showing that the rented shop was in possession of the respondent on 25-4-1984. There is treatment report dated, 11-5-1992 produced at mark 4/13 in respect of the treatment given to the sister-in-law of the respondent. This evidence prima facie are sufficient for believing the case of the respondent that he was in possession of the suit premises when he was illegally evicted. The fact that the petitioner in collusion with one Ashwinkumar filed a suit and obtained ex parte decree without even joining the respondent also support the version of the respondent that he is illegally deprived of the possession of the suit shop. The fact that the petitioner has inducted his own son who is doing the business in the name of "Ashok Mandap Service" in the suit shop as a tenant from 1-8-1992 will clearly go to show that the petitioner has done all acts illegally and in a high handed manner by obtaining an ex parte decree of eviction in collusion with the so-called Ashokkumar without even joining the respondent in the said proceedings when documents on record clearly prove the possession of the respondent in the suit premises prior to the institution of the suit by the petitioner and executing the decree by breaking open the lock of the suit premises in absence of the respondent and finally nailing the coffin by inducting his own son as a tenant in the suit premises and then to contend in a suit of the respondent that status of the respondent is in dispute and therefore no relief at the interlocutory stage be granted. In my view up Court would permit the fraud committed to it and there cannot be a better case than the present one where the relief prayed can be refused. Thus, considering the totality of the evidence, in my view, no illegality has been committed by the Courts below in granting Exh. 5 restoring the possession of the suit premises to the respondent and no case has been made out for my interference in this Civil Revision Application. Hence, I reject this Civil Revision Application.