1981 Supreme(MP) 332

S. S. Sharma, J.
Gopaldas Govinddas v. Seth Purshottamdas
C. Revn. No. 87 of 1980 (J), Decided on 2-5-1981.

Headnote:(1) Civil P.C. 1908-O. 39, R.1 and 2-injunction under -plaintiff when entitled for-plaintiff who was sub-tenant failed to establish direct tenancy prima facie-not entitled to any relief.

        (2) Accommodation Control Act, 1961 (MP)-S. 23-.Transfer of Property Act, 1882-S. 115-benefit under S.115 of T.P. Act-not available in view of S. 23 of Accommodation Control Act.

        (3) Accommodation Control Act, 1961 (MP)-Ss. 15 and 16- every sub-tenant does not become tenant on making an order of evictiond`requirement for the purpose not fulfilled-fulfilled sub tenant does not acquire right of tenant.

        This revision by the plaintiff is against an order dated 24-12-1979 passed by Additional District Judge, Gadarwara in Misc. Civil Appeal No.7 of 1977. The petitioner-plaintiff filed a suit which was registered as a civil Suit No. 14-A of 1977 seeking declaration that he is in possession of the suit KOTHAS as described in the schedule to the plaint as a tenant and is entitled to continue in its possession in that capacity as also that defendant non-applicant No. 1, has no right to dispossess him in execution of the decree passed in Civil Suit No. 4-A/1971. A further relief for setting aside the order dated 22-4-75 passed in execution case No. 4-A of 1971 has also been sought. By an amendment relief of permanent injunction restraining his being dispossessed in execution of the decree passed in execution case No. 4-A of 1971 was also claimed.

        Held: It cannot be disputed and was in fact not even disputed that a mete filling of such a suit of the nature as the present one is, would not in itself entitle a plaintiff to get a temporary injunction in his favour. He has all the same to make out that there is a serious question to be tried. While examining this, the Court has obviously prima facie to look into the rival contentions of the parties. This is besides the other principles which govern the grant or refusal of temporary injunction,

        Section 16 provides for cases when sub-tenant would be a tenant. What it says-is that where an order for eviction in respect of any accommodation is made under section 12 against a tenant, but not against a sub-tenant referred to in section 15 and a notice of the sub-tenancy has been given to the landlord, the sub-tenant shall with effect from the date of the Order be deemed to become a tenant holding directly under the landlord in respect of the accommodation in his occupation on the same terms and conditions on which the tenant would have held from the landlord if the tenancy had continued. A perusal of sections 15 and 16 of the Act, clearly indicates that every sub-tenant does not become a tenant when an order of eviction is made against tenant. For a sub-tenant to acquire that I right under section 16, there are certain requirements.

        Learned counsel for the petitioner rightly contended that the questions that he had raised which according to him are to be tried in the suit need not be decided at this stage and have been put-forth merely to make out that there is a serious question to be tried in the suit. A mere exposition or law by itself would not be enough to hold that a serious question is to be tried, but it is further necessary that the material on record should prima facie make out the circumstances on which that legal right is being claimed. If prima facie these facts do not stand borne out, then merely because an elaborate argument can be put forth is of no avail.

        While setting out the facts, I have clearly dealt with the different proceedings that were started by the plaintiff prior to the filing of the suit in which the factual findings on which the legal argument is sought to be built up were against the plaintiff. No doubt, those findings are not conclusive so far as this suit is concerned. Even independently of those findings, the material on record in the present suit does not prima facie make out that the plaintiff who was a sub-tenant became a direct tenant of the landlord.

        Learned Counsel for the petitioner also referred to section 115 of the Transfer of Property Act and contended that by the compromise decree the rights of the petitioners as a sub-tenant cannot be destroyed. On behalf of the Non-applicants section 23 of the Act was referred to which provides that "notwithstanding anything contained in any other law where the interest of a tenant in any accommodation is determined for any reason whatsoever and any decree of order is passed by a Court under this Act for the recovery of possession of such accommodation, the decree or order shall, subject to the provision of section 16, binding on all persons who may be in occupation or the accommodation and vacant possession thereof, shall be given to the landlord by evicting all such persons there from. The proviso to this section is that nothing in this section shall apply to any person who had an independent title to such accommodation. Reliance was also placed on a decision of their Lordships in Bindesh kumar v. Behar; Sarkar (dead) by Lrs. (1980; 3 sec 348). On a consideration of these submissions, I am of the opinion that section 115 of the T. P. Act does not prima facie further the plaintiffs case for grant of injunction. 1980 JLJ 678 (FB) relied on. 1975 JLJ J40, 1966 MPLJ-SN 14 and (1980) 3 SCC 348 referred to. Revision dismissed.