IMPORTANT POINTS
Permanent injunction can be granted only to a person who is in actual possession of the property and burden of proof lies upon plaintiff to prove that he was in actual and physical possession of the property on the date of suit.
Finding of fact by trial court based on evidence cannot be interfered in inferences.
A party not coming to the court with clean hands and suppressing facts cannot sustain his claim for the equitable relief of permanent injunction.
A tenant not paying rent cannot have any legitimate right to be in possession of the suit premises.

JUDGMENT :

R. Banumathi, J.

Leave granted.

2. This appeal arises out of the judgment dated 23.06.2016 passed by the High Court of Judicature at Mumbai dismissing the Writ Petition No.6873 of 2016 thereby affirming the judgment of the First Appellate Court decreeing the first respondent’s suit for permanent injunction.

3. The first Respondent-plaintiff claiming to be a tenant filed a suit in the year 2004 for permanent injunction restraining the appellant-landlord from disturbing his peaceful possession in the suit premises. Case of the first respondent-plaintiff was that he was running eating house, a pan shop and was also doing fabrication work in the suit premises which has been constructed in tin sheet, wooden logs and rafters. According to the first respondent-plaintiff, he was inducted in the suit premises as a tenant in the year 1977 on monthly rent of Rs.55/-. Appellant-defendant has earlier instituted a suit against the first respondent-plaintiff in RCS No.1004/1988 and the said suit was dismissed as withdrawn. The first respondent-plaintiff averred that he repeatedly called upon the appellant-defendant to carry out the necessary repairs in the suit premises; however, the appellant-defendant refused to carry out the repairs. The first respondent-plaintiff further alleged that after obtaining permission from the Corporation for effecting the necessary repairs, when he was about to start the repair works, on 19.08.2004, the appellant-defendant came along with his men and obstructed the first respondent-plaintiff from carrying out the repairs. Hence, the first respondent-plaintiff was constrained to file the suit for permanent injunction.

4. The appellant-defendant filed a written statement contending that the first respondent-plaintiff was in occupation of only one room until the year 1991. According to the appellant-defendant, earlier he instituted a suit in RCS No.1004/1988 against the first respondent-plaintiff and during the pendency of that suit, parties arrived at a settlement and in pursuance of that settlement, the first respondent-plaintiff had handed over the possession of the suit premises to the appellant-defendant. Accordingly, the appellant-defendant filed Purshis Ex.-41 on 23.04.1991 seeking permission to withdraw the suit and the said suit was disposed of on 26.04.1991. According to the appellant, the relationship between the parties as landlord-tenant ceased to exist. The appellant further averred that he had executed a Development Agreement with the second respondent and when he was about to start the development of the suit premises, the first respondent-plaintiff had filed the suit for permanent injunction and therefore, prayed for dismissal of the suit.

5. Based upon the pleadings and evidence, relevant issues were framed before the trial court. Upon consideration of oral and documentary evidence, the trial court dismissed the suit holding that the first respondent-plaintiff has not produced any licence or electricity connection to show that he was running the hotel, pan shop and doing fabrication work showing that he has been carrying on the business from the suit premises. The trial court held that the plea of the first respondent-plaintiff that he has been in occupation of the suit premises is not acceptable. Referring to the settlement arrived at, in RCS No.1004/1988, the trial court pointed out that after disposal of RCS No.1004/1988, the first respondent-plaintiff had not paid the rent and that the first respondent-plaintiff failed to establish that he was the tenant in the suit premises and on those findings, the trial court dismissed the suit.

6. In appeal the First Appellate Court allowed the appeal filed by the first respondent-plaintiff by holding that there is nothing on record to show that after withdrawal of the earlier suit i.e. RCS No.1004/1988, the first respondent-plaintiff has vacated the suit premises in the year 1991. After referring to the evidence of the first respondent-plaintiff (PW