Dismissed

Anita Devi and Another v. Motor Association

Allahabad HC6 Dec 2018A227/8970/2018

Case brief

AI extract

What is this about?

In a writ petition under Article 227, the High Court affirmed a trial court order restoring possession of suit property to the plaintiff. The Court held that possession re-acquired by defendants post-interim injunction via an unverified compromise is not legally effective absent expert verification or adjudication on the counter-claim.

What did the court decide?

Order dated 19.10.2013 affirmed; trial court directed to proceed with suit expeditiously. Petition dismissed.

Anita Devi and Another Vs Motor Association — Landlord and Tenant | Allahabad HC (2018)

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Court No. - 36

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Case :- MATTERS UNDER ARTICLE 227 No. - 8970 of 2018

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Petitioner :- Anita Devi And Another Respondent :- Motor Association Counsel for Petitioner :- Surendra Tiwari Counsel for Respondent :- Anil Kumar Mishra

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Hon'ble Mrs. Sunita Agarwal,J.

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The present petition is directed against the order passed on application 64-Ga which was allowed by the trial court vide judgement and order dated 19.10.2013. By means of the said order, the court below has directed the petitioners/defendants to restore the possession of the plaintiffs over the suit property. Simultaneously, while allowing application 85-Ga filed by the defendants, a direction has been given to verify the signatures of the plaintiff over the compromise Paper No.70-Ga through an expert.

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The facts relevant to decide the controversy in hand are that the suit for injunction namely Original Suit No.46 of 2012 was filed by the plaintiff/respondent against two defendants namely the petitioners herein. In the said suit, a counter claim seeking relief of mandatory injunction asking the plaintiffs to hand over peaceful possession of the suit property was filed by the defendants. It is admitted to the parties that the counter claim has been registered separately and a reply to the same had been filed by the plaintiffs.

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Initially, the temporary injunction application was rejected by the trial court which had been taken up in appeal wherein the temporary injunction order dated 17.1.2013 was passed.

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The application 64-Ga was filed by the plaintiff with the specific assertion that the defendants had taken forceable possession of the suit property on 2.2.2013 by adopting illegal means of alleged compromise dated 15.1.2013, which allegedly arrived between the parties in a settlement out of the court. The plaintiff had denied his signature over the alleged compromise dated 15.1.2013 filed by the defendants alongwith the application 85-Ga.

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Having noticed the fact that the alleged compromise dated 15.1.2013 relied upon by the defendants was never brought on record of the proceedings of the court below prior to 2.2.2013, the trial court had proceeded to restore the possession of the plaintiff over the suit property.

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Learned counsel for the petitioners/defendants has vehemently submitted that once the trial court has proceeded to accept the prayer of the defendant in application 85-Ga to verify the signatures of the plaintiffs on the compromise dated 15.1.2013, it was not open for it to restore the possession to the plaintiff. The possession of the suit property was handed over by the plaintiff willingly. And only after getting the temporary injunction order dated 17.1.2013 from the appellate court, the plaintiff had filed the application 64-Ga

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seeking restoration of possession, to resile from the compromise. It is further submitted that the plaintiff is not in possession of the suit property since the year 2013 and as such this Court may pass an interim order staying the restoration of possession in favour of the plaintiff made by the orders impugned.

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Learned counsel for the respondent, however, defends the orders impugned for the reasoning given therein.

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Heard learned counsel for the parties and perused the record. Having noticed the fact that the counter claim was filed by the defendant seeking relief of mandatory injunction it is noteworthy that at least this fact is admitted to the defendant that on the date of filing of the suit, the plaintiff was in possession of the suit property. Whether the possession of the plaintiff is legal or unlawful is required to be examined by the court below in the pending suit. The question as to whether the plaintiff is a licensee or has a right to get the relief as prayed for in the suit, is a question which is yet to be examined. It is also admitted to the parties that the possession of the suit property was taken by the defendants/petitioners on 2.2.2013 i.e. the date after the temporary injunction order was passed by the First Appellate Court in miscellaneous appeal. It is also admitted to the petitioners/defendants that the alleged compromise dated 15.1.2013 had not been brought on record. The possession of the suit property was not handed over to them under any order of the Court.

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In view of the above, the question as to whether the alleged compromise dated 15.1.2013 can be given effect to being a valid piece of paper is subject matter of examination before the court below. It is noteworthy that for a period of approximately 5 years, signatures of the plaintiff on the said compromise has not been verified. No expert report has been obtained.

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In view of the above, this Court is of the considered opinion that the trial court was fully justified in restoring the possession of the suit property to the plaintiff. The fact that during the pendency of the revision filed by the petitioner/defendant, the order passed by the trial court was kept in abeyance would not give a right to the defendants to claim possession over the suit property.

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The defendants can claim possession over the suit property only in case, the compromise is verified and accepted by the court below being a valid document or their counter claim is allowed or the suit is dismissed, as the case may be. In the said circumstances, the order dated 19.10.2013 passed by the trial court is hereby affirmed.The trial court is directed to proceed with the suit expeditiously.

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The present petition is, accordingly, dismissed.

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Order Date :- 6.12.2018 Jyotsana

Anita Devi and Another v. Motor Association

Case brief

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Anita Devi and Another v. Motor Association

Case brief

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