Heard Sri Shashi Nandan, Senior Advocate, assisted by Sri Madhav Jain, learned counsel appearing on behalf of the appellant.
The appellant filed a Suit No. 681 of 1991 against Sri Daulat Chand Jain, who was claimed to be the tenant restraining him to deliver the possession to defendant no. 2, who is respondent no. 1.
It is the contention of the appellant that on 3.8.1991, the defendant no. 1 and the plaintiff entered into compromise and in pursuance thereof, the defendant no. 1 of the suit has delivered the possession to the plaintiff. However, the defendant no. 2, who is respondent no. 1 filed a written statement and disputed the title of the plaintiff and claimed that he has been wrongly dispossessed. He also filed a counter claim in the year 1995. The amendment application has been allowed in respect of the counter claim. Thereafter the appellant filed an application for withdrawal of the suit. The said application has been rejected on 20.3.2001 against which revision filed which has been allowed on 13.5.2004 by the revisional authority with the specific order that the counter claim of defendant no. 2 and present respondent no. 1 shall continue. Counter claim of respondent no. 1 is still pending. During the pendency of counter claim, the respondent has moved an application on 10.2.1999 under Section 144 of C.P.C. for the restitution of the possession. The said application has been allowed on 9.12.2011 by the trial court and the appeal filed against the said order has been dismissed by the appellate authority.
Learned counsel for the appellant submitted that defendant no. 1 Sri Daulat Chand Jain was the tenant of the appellant and not respondent no. 1 and the appellant has got the possession of the property in dispute from him. The counter claim of the respondent is still pending despite that the application for the restitution of possession under Section 144 of C.P.C. has been illegally allowed by the trial court which has been affirmed by the appellate authority. The appellant is still in possession over the property in dispute which belongs to him.
There appears to be substance in the argument of learned counsel for the appellant which requires consideration.
Issue notice to the respondents returnable at an early date.
List in the week commencing 14.5.2012.
On the facts and circumstances, I am of the view that the appellant is entitled for the interim relief. Meanwhile, the operation of the order dated 9.12.2011 passed by the trial court in Misc. Case No. 27 of 2009, Jalaluddin Vs. Afzal and the order dated 29.3.2012 passed by the appellate authority in Civil Appeal No. 30 of 2012, Afzal Vs. Jalaluddin and others shall remain stayed.
Order Date :- 13.4.2012 OP