Temporary mandatory injunctions can be granted to protect tenanted premises pending resolution of tenancy disputes, despite claims of lease termination.

JUDGMENT

This Original Petition is in challenge of the order passed by the learned Sub Judge, Alappuzha on I.A.No.1632 of 2009 in O.S.No.439 of 2008 as confirmed by learned Additional District Judge, Alappuzha by Ext.P7, judgment in C.M.A.No.36 of 2010. Respondent/plaintiff claimed that the building referred to in the plaint schedule was taken on rent by his father from the petitioner and a printing press was established in the said premises. During the life time of the father, a partnership firm was formed and after the death of the father it was reconstituted. Respondent and others continued to be tenants of the schedule building under petitioner. It is alleged that while so, on 10.08.2008 first defendant in collusion with petitioner/second defendant demolished a portion of the said building. On that allegation, respondent filed the suit on 05.09.2008 praying that a decree for mandatory injunction may be issued directing petitioner and first defendant to repair the damaged portion of the building at their cost to restore it to the original position or in case they fail to do so allow the respondent to effect necessary repairs to the schedule building to restore its original position and recover the cost from petitioner and the first defendant. There is also a prayer for recovery of damages from petitioner and first defendant. The suit was resisted by petitioner contending that no tenancy existed on the date of institution of the suit. It was contended that managing partner of the firm had surrendered tenancy in favour of petitioner on 09.08.2008 and thereafter respondent or anybody else has no right of tenancy in the building in question. Petitioner also denied that any portion of the building was demolished. Respondent filed I.A.No.1632 of 2009 (Ext.P4) on 16.09.2009 for granting permission to him as a temporary measure to put up aluminum sheeted roof on minimum tress work with iron rods for protecting machineries kept in the southern room which had no roof as reported by the Advocate Commissioner, subject to condition that respondent shall remove the same as and when ordered by the court at the cost of the respondent himself and also to restrain petitioner and first defendant or anyone acting under them from causing any obstruction to the respondent doing the said work. That application was resisted by petitioner on various grounds. Learned Sub Judge by Ext.P6, order granted permission subject to certain conditions. That has been confirmed by the learned Additional District Judge by Ext.P7, judgment which is under challenge.

2. Learned counsel for petitioner has contended that on the materials on record, apart from the fact that respondent and others had ceased to be a tenant even much before the institution of the suit, respondent is not entitled to the relief prayed for. It is submitted that though the alleged demolition of the portion of building was on 10.08.2008, the suit was filed only on 05.09.2008 and Ext.P4, I.A.No.1632 of 2009 seeking permission as above stated was filed only on 16.09.2009. It is submitted by learned counsel that even as per Ext.P4, request is for permission to make repairs to the allegedly demolished portion of the building to put up roof which is an 'amenity' coming within the scope of Section 13 of Act 2 of 1965 in which case, remedy of respondent is to approach the Accommodation Controller under the said provision. Learned counsel has placed reliance on the decisions in Gopalakrishnan Nair v. Joshi (1985 KLT 132) and Muhammadali v. District Collector (2002 (2) KLT 253) to contend that in the circumstances, the suit itself is barred and in such a situation, no order which has the effect of temporary, mandatory injunction could have been granted. It is further contended by learned counsel that at any rate it is not a case where according to the respondent the status quo was altered after filing of the suit; on the other hand respondent alleged demolition of that part of building on 10.08.2008,