1995 Supreme(Del) 649

High Court Of Delhi
INTERCRAFT LIMITED - Appellant
Versus
CAPITAL BOOT HOUSE - Respondent
Anjana Bali, ARUN MOHAN, Ashok Sapra, CHITRA MARKANDEYA, D.N.Sawhney, G.S.SISTANI, H.P.SINGH, P.N.LEKHIInterim Application 8829 of 1994
Decided On : 08/24/1995

Headnote:Civil Procedure Code, 1908 - Order 39 Rule 3 r/w 3-A — Ex parte ad interim injunction — Grant of — Compliance with mandatory provision of Rule 3-A — The court is bound to dispose of an application within 30 days when injunction is granted without prior notice to the opposite party.

        Order 39, Rule 1 & 2 — Interim injunction sought by the plaintiff to continue the occupation of the premises in terms of the franchise agreement — The defendant entitled to fix payment under the terms of the agreement-All expenses of the shop reimbursed by the plaintiff — The balance of convenience Iie in favor of plaintiff who is in occupation of the premises — Interim injunction to protect the business of the plaintiff, granted. Order 39 Rule 4 — Application seeking vacation of interim injunction — Failure to file reply to the application, in the facts and circumstances of the case, does not per se entitle the defendant to have the order of interim injunction set aside or modified on this ground alone.

       Held:

       The material on record shows that Intershoppe is being run in the premises in question since 1980 tilt the date of the suit. The last document between the parties has taken place on 19.9.1991 and it was for a period of three years. But even after the eflux of the period mentioned in the said agreement the business was carried. It has been mentioned by the plaintiff as well as by the defendants that some negotiations and talks were taking place between the dale of the suit and after 19.9.1994. But it is very pertinent to note that neither the plaintiff nor the defendants have disclosed as to what those talks were and when none of them have come before the Court as to what were the talks and when the business is being carried on continuously in the premises in question from 1980 till the date of the suit then it is obvious that the plaintiff had continued to carry out his business in the premises in question, as earlier, From the material on record it is not possible to hold that the plaintiff had not come in possession of the premises in question without the consent of the defendants. It is also not possible to hold from the material on record that the plaintiffs forcibly took the possession of the premises in question on 3.10.1994, as claimed by the defendants. thereforee, in these circumstances, it will have to be held that on the date of the suit the plaintiff was in possession of the premises in question. Plaintiffs possession could not be disturbed without due process of law, as claimed by the plaintiff.

       It is quite clear that the mazennine floor of B-24, Cannaught Place is in the exclusive possession and enjoyment of the defendants. Similarly, from the documents produced by the defendants it is quite clear that in the premises in question, i.e. the ground floor of B-24, Cannaught Place, New Delhi, the defendants were not selling any other articles besides the products of the plaintiff since the year 1980. The defendants have not also claimed that they were selling any other items besides the products of the plaintiff in the premises in question. The documents and record also clearly show that all the furniture, show room equipments, the carpet and air-conditioning in that room is at the costs of the plaintiff. Thus, except the premises of the ground floor, all the equipment of the shop is of the ownership of the plaintiff. thereforee, in the above circumstances, the balance of convenience will lie in favor of the plaintiff to continue using the premises in dispute on condition to pay the defendants adequately for making use of their premises. Similarly, if the plaintiff is allowed to continue to make use of the premises on condition to pay an amount which would be exceeding Rs. 55,500/-per month the defendants would not suffer irreparable loss, which could not be compensated in terms of money. Before passing the final order I would like to deal with one of the contentions raised by Mr. Arun Mohan, learned senior counsel for the defendants. He contended before me that the plaintiffs have not filed reply to his application under Rule 4 of Order 39 and, thereforee, the order of injunction in favor of the plaintiff deserves to be rejected. In support of that submission he cited before me the case of Kaka Singh Chhabra v. Municipal Corporation of Delhi [1990 Vol.42 DLT 607], wherein it has been held by the learned Single Judge of this Court if the plaintiff has not filed any reply to the application under Order 39 Rule 4, CPC, the period allowed by the Court then the plaintiff cannot ask for continuation of the injunction and the same has to be vacated. From the report of the said case it is not possible to know as to what were the facts in the said case. The learned Judge has found that though the plaintiff was given sufficient time to file reply to the application under Order 39 Rule 4 plaintiff was not filing the same and was seeking more time and in these circumstances while granting more time to him the learned Judge was pleased to vacate the order of ad-interim injunction. In the instant case plaintiff has filed an application contending therein that the written statement filed by the defendant and which was the basis for his application under Order 39 Rule 4 is not as per the provisions of Order VI, CPC and he had prayed for striking off the same under Rule 16 of Order VI. That application of the plaintiff was ordered to be decided before this application by my learned predecessor. In these circumstances, the plaintiff has not filed reply to the application under Order 39 Rule 4 because of his contention under the provisions of Rule 16 of Order VI, CPC. thereforee, in view of the peculiar facts of the case as well as taking into consideration the provisions of Rule 4 of Order 39, I am unable to hold that merely because the plaintiff has not filed the reply to His application under Rule 4 of Order 39 it is not open for the plaintiff to rely on his original plaint and the documents produced by him as well as the documents produced by the defendants and to urge before the Court that in view of the material on record the defendant is not entitled to have either the discharge or modification or setting aside of the order in his favor.

       Thus, I hold that from the material on record it is not possible to hold prima facie that the plaintiff was not in possession and occupation of the shop in question prior to 3.10.1994 and that they came in possession for the first time on 3.10.1994 by use of force. From the material on record it prima fade seems that the shop Intershoppe in the premises in question is being run by the plaintiff and it is plaintiffs business. thereforee, in these circumstances, the plaintiff is entitled to gel ad interim injunction in order to protect his business on the conditions as indicated above.