In a suit for permanent injunction, the question of the relationship of landlord and tenant is crucial, and the court may not entertain claims for rent deposit when this issue is not in dispute.

JUDGMENT :

B.K. Patel, J. - In this writ petition, petitioner has assailed legality of the order dated 3.12.2009 passed by the learned Civil Judge(Junior. Division), Puri in O.S.No.606 of 2001 rejecting petitioner's application to issue direction to the opposite party to deposit rent for occupation of the disputed property.

2. O.S.No.606 of 2001 is a suit for permanent and mandatory injunction not to interfere with the plaintiff's possession over the suit premises which comprises of a hotel in the name and style "Hotel Repose, Puri" (for short, 'the hotel'). Opposite party no.1 filed suit initially against deceased-defendant no.1 Birendra Mohan Sarkar as the Managing Director-cum-Partner of the hotel; defendant no.2 the present petitioner M/s Indian Tea Provisions Ltd. (for short, 'the ITC); and others.

3. Defendant no.2, the writ petitioner, is a lessee of the State Government in respect of the land on which the suit property is situated. Plaintiff's case is that initially due to his efforts and good offices the ITC through its Director Paresh Chandra Chatterji agreed to let out the suit property to the defendant no.1 on monthly rent of Rs.25,000/- for a period of 21 years. Thereafter, defendant no.1 invited the plaintiff to become a partner. Accordingly, an agreement dated 5.11.87 was entered into between the plaintiff and late Birendra Mohan Sarkar in presence of defendant no.2 represented by Paresh Chandra Chatterji providing therein that the hotel was to be in possession and management of defendant no.1 for the first 10 years after which plaintiff was to take over management of the hotel for 10 years. Agreement further provides that each partner during their respective period of management would pay monthly rent of Rs.25,000/- to the above said Paresh Chandra Chatterji and pay Rs. 15,000/- per month to the other partner. The agreement expressly provides that defendant no.1 would handover management of the suit property to the plaintiff after completion of first 10 years w.e.f. 4.8.1987. It is also stipulated that in case defendant no.1 failed to handover management of the hotel after expiry of the tenure and overstayed beyond the 10 years, then the plaintiff would not be liable to pay rent for the period of such overstay to Paresh Chandra Chatterji. In case defendant no.1 failed to pay Rs. 15000/- per month to the plaintiff during the period in which the hotel was under his management, plaintiff would be entitled to adjust the unpaid amount out of the income plaintiff derived from the hotel during the plaintiff's management. It is specifically provided that in case defendant no.1 committed breach of agreement in handing over management of the hotel after expiry of his period, plaintiff would take over management of the hotel without intervention of the court. It is averred by the plaintiff that as defendant no.1 continued to possess management of the hotel in violation of the agreement beyond the period of 10 years till 14.3.2001, plaintiff took over and is continuing with absolute possession and management of the suit property w.e.f 15.3.2001. It is alleged that defendant no.1 is making various attempts to dispossess the plaintiff from the suit property and asserted that defendant no.2 being a signatory to the agreement dated 5.11.97 is bound by the terms and conditions contained therein. Therefore, none of the defendants are entitled to dispossess the plaintiff from the suit property till he continues to pay rent stipulated in the agreement.

4. In the petition, in response to which the impugned order was passed, defendant no.2 states that T.S.No.290 of 1992 instituted by the said defendant against defendant no.1 for eviction and recovery of arrear rent was decreed. It is stated that the present plaintiff in connivance with the deceased-defendant no.1 instituted the present suit to stall execution of the decree in T.S.No.290 of 1992. It is further averred that in view of plaintiff's claim to be in exclusive possession and ma