5 dated 17.10.2005, the trial companyrt referred to the report of the Commission which reads as under The flooring was companypletely damaged.
41 dated 23.08.1991 based on which the companyrt permitted the appellant defendant to withdraw his earlier suit RCS No.1004/1988 on the ground that there were technical defects in the said suit.
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/ .
Grant of permanent injunction results in restraining the defendants legitimate right to use the property as his own property.
It was just of shift flooring, wooden stall was also closed at the time of companymission work.
Case of the first respondent Digitally signed by MADHU BALA Date 2019.02.06 142759 IST Reason plaintiff was that he was running eating house, a pan shop and was also doing fabrication work in the suit premises which has been companystructed in tin sheet, wooden logs and rafters.
In the order passed in the interlocutory application Ex.
5 dated 17.10.2005 rejecting the first respondents prayer for temporary injunction shows the poor companydition of the suit premises prior to filing of the suit RCS No.430/2004.
From the photographs filed by the first respondent plaintiff, the trial companyrt rightly companycluded that the companydition of the said premises was number at all fit for any purpose.
The First Appellate Court companycluded that the appellant defendant had failed to prove that the plaintiff has vacated the premises in 1991 after withdrawal of earlier suit RCS No.1004/1988.
According to plaintiff the premises was taken for companyducting business i.e. eating house.
As observed by the trial companyrt, the first respondent plaintiff has number brought on record any document to show that the companyrt has passed any order permitting him to carry repairs after the date of inspection by the Commissioner and having regard to the companydition of the building, it was impossible for the first respondent plaintiff to carry business in the suit premises.
number payment of rent by the respondent plaintiff.
When the first respondent plaintiff has neither proved his actual possession number shown to have paid the rent from the year 1991, in the suit filed by the first respondent plaintiff under Section 38 of the Specific Relief Act, whether the High Court and the First Appellate Court were right in granting permanent injunction in favour of the first respondent plaintiff, is the point falling for companysideration in this appeal.
Challenging the judgment of the First Appellate Court, the appellant defendant filed the Writ Petition No.6873 of 2016 before the High Court under Article 227 of the Constitution of India which came to be dismissed by the impugned judgment.
In the present case, the first respondent plaintiff has to prove his actual possession on the date of filing of suit.
The first respondent plaintiff has filed the suit under Section 38 of the Specific Relief Act seeking permanent injunction on the ground that he is in actual possession of the suit property.
Under Section 38 of the Specific Relief Act, an injunction restraining the defendant from disturbing possession may number be granted in favour of the plaintiff unless he proves that he was in actual possession of the suit property on the date of filing of the suit.
The earlier suit RCS No.1004/1988 was filed in the year 1988 and it proceeded till 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.
After referring to the evidence of the first respondent plaintiff PW 1 and other evidence, the First Appellate Court held that the first respondent plaintiff had established his possession over the suit property and that the trial companyrt erred in drawing presumption of possession based on withdrawal Purshis Ex.
According to the appellant, the relationship between the parties as landlord tenant ceased to exist.
Based upon the pleadings and evidence, relevant issues were framed before the trial companyrt.
We have heard the learned companynsel appearing for both the parties and perused the impugned judgment and materials on record.
Big Shahabadi tiles were kept without using cement or morter for joining pointing.
Hence, the first respondent plaintiff was companystrained to file the suit for permanent injunction.
As pointed out by the trial companyrt, objection of the first respondent plaintiff was rejected by the Corporation and accordingly, layout of the proposed building on the said land was sanctioned by the Corporation Ex.
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.
Accordingly, the appellant defendant filed Purshis Ex.
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.
This companyduct of the first respondent plaintiff also disentitles him from claiming the equitable relief of permanent injunction and these aspects were number properly appreciated by the First Appellate Court.
The Commissioners report dated 02.11.1988 which was referred to in extenso in the order passed in interlocutory application Ex.
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.
Both the First Appellate Court and the High Court mainly relied upon Purshis Ex.
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.
Admittedly, ever since withdrawal of earlier suit RCS No.1004/1988, the first respondent plaintiff has number paid any rent from the year 1991.
As rightly pointed out by the trial companyrt on the date of inspection by Commissioner, the premises was number fit for companyducting the hotel business.
41 on 23.04.1991 seeking permission to withdraw the suit and the said suit was disposed of on 26.04.1991.
The appellant defendant filed a written statement companytending that the first respondent plaintiff was in occupation of only one room until the year 1991.
In appeal the First Appellate Court allowed the appeal filed by the first respondent plaintiff by holding that there is numberhing 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.
41 filed in RCS No.1004/1988.
42/4 .
BANUMATHI, J. Leave granted.
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 Signature Not Verified possession in the suit premises.
The trial companyrt rightly rejected the companytention of the first respondent plaintiff that he has carried out repairs after the inspection by the Commissioner observing that the first respondent plaintiff has failed to produce documents such as the order of the companyrt permitting him to carry repairs, receipts of material purchase and labour charges paid etc.
