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2023 Supreme(HP) 169
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
JYOTSNA REWAL DUA, J.
Dhian Singh – Petitioner
Versus
Surinder Kumar and Another – Respondents
CMPMO No. 80 of 2023
Decided On : 27-03-2023
Advocate Appeared:
For the Petitioners: Ajay Sharma, Ajay Thakur.
For the Respondent: Sanjeev K. Suri.
Point of Law: In order to do justice between parties or to prevent abuse of process of Court, Civil Courts have ample jurisdiction to direct rendering police aid to aggrieved parties with regard to implementation of orders of Court in deserving cases.
Headnote:
Constitution of India, 1950 - Article 227 - Code of Civil Procedure, 1908 - Section 151, Order 1 Rule 10, Order 39 Rules 1 and 2 - Police assistance - Implement interim order - Restrain from interfering premises - Application seeking police assistance for implementing interim order passed in his earlier application moved under Order 39 Rules 1 and 2 CPC was dismissed – Plaintiff was not in possession of premises in question on date of institution of suit and that he had already been ousted from business of running shop. [Para 4]
Finding of the Court: Plaintiff had been ousted from disputed shops - He was not in possession of premises in question on date of institution of suit - Plaintiff had himself admitted this fact in his plaint, though omitted to mention it in his application under Order 39 Rules 1 and 2 CPC - Ad-interim order did not notice plaintiff’s admission made in his plaint of having been already ousted from business/premises in question - There was no question of providing him police assistance for enforcement of interim restraint order - Plaint had not been mentioned in application under Order 39 Rules 1 and 2 CPC - These facts came into notice of learned trial Court while deciding application moved by plaintiff seeking police assistance to implement order - Police aid could not be provided to plaintiff for his re-entry in premises in question - Plaintiff had already been ousted from premises/business at time of filing of plaint and also at time of passing of interim injunction order – Court do not find any error in order passed by learned trial Court refusing to provide police assistance to plaintiff.
Result: Petition dismissed.
JUDGMENT :
JYOTSNA REWAL DUA, J.
1. This petition instituted under Article 227 of the Constitution of India assails two separate orders passed by the learned trial Court on 12.01.2023. By one order, an application under Order 1 Rule 10 read with Section 151 of the Code of Civil Procedure (in short CPC) moved by respondent No. 2 for his impleadment as defendant No. 2 in the civil suit was allowed. By the other order of even date, an application moved by the petitioner/plaintiff seeking police assistance for implementing interim order dated 07.06.2022 passed in his earlier application moved under Order 39 Rules 1 and 2 CPC was dismissed.
2. The germane facts may be noticed hereinafter:
(i) On 04.06.2022, petitioner instituted a civil suit seeking decree of permanent prohibitory injunction to restrain defendant No. 1 from interfering or ousting him from handling the English Beer and Wine Shop L-14 Unit No. 58A, situated at Villages Rakkar and Bhranta Buhla, Tehsil Rakkar, District Kangra, H.P. One Surinder Kumar-present respondent No. 1 was the sole defendant in the civil suit. The plaintiff pleaded that Surinder Kumar-defendant No. 1 was contractor of English Beer and Wine Shop, but did not have sufficient funds. He approached the plaintiff for running the business in partnership. The plaintiff accepted the defendant’s proposal. Both entered into partnership on 24.03.2022. As per the terms and conditions of the partnership deed, plaintiff was responsible for the investment of total amount in the business. He was also given the right to include other investors/partners, if he wished to do so. In terms of the partnership deed, the profits of the business were to be shared by both the parties, but the loss in the business was to be borne solely by the plaintiff. The tenure of the partnership deed was from 01.04.2022 to 31.03.2023. Further case of the plaintiff was that he had invested more than Rs. 35,00,000/- (Thirty five lacs) in running of the business. He had also deposited/pledged F.D. worth Rs. 4.54 Lacs (Four lacs 54 thousand) in the Excise and Taxation Department, had also paid advance rental for the shops. The grievance of the plaintiff was that on 01.06.2022 and 03.06.2022, the defendant (Surinder Kumar) had refused to admit plaintiff’s claim. He forcibly entered the premises with 15 persons who were his agents from Punjab. They beat the plaintiff, ousted him from the business and premises and forcibly entered the shops at Rakkar.
(ii) Alongwith the plaint, an application under Order 39 Rules 1 and 2 CPC was moved praying for grant of ad interim injunction to restrain the defendant from interfering or ousting the plaintiff from the premises/business in question. The application came up for consideration before the learned trial Court. Notice was issued to the defendant for 07.06.2022. In its interim order passed on 07.06.2022, learned trial Court took into consideration the partnership deed dated 24.03.2022 executed between the plaintiff and defendant, the subsistence of the partnership deed till 31.03.2023, the pleadings made in the application and held that the plaintiff will suffer irreparable loss in case the defendant was not restrained from dispossessing the plaintiff from partnership business. Accordingly, defendant Surinder Kumar was restrained from ousting the plaintiff from the shop in the name and style of English Beer and Wine Shops L-14 Unit No. 58A at Rakkar.
(iii) The documents on record reflect that application under Order 39 Rules 1 and 2 CPC was repeatedly listed on several dates after passing of interim injunction order dated 07.06.2022. The reply to the said application, however, was not filed and time was extended to enable the defendant to file his reply. The last order dated 12.01.2023 on record of the case reflects that even till that date, reply to the application under Order 39 Rules 1 and 2 CPC on behalf of defendant Surinder Kumar had not been filed. Further time to file reply was granted to the defe
