Judgment:
C.L. Chandhry, J.
(1) The plaintiff has preferred this suit for recovery of possession and damages for use and occupation on the basis of the the following allegations as disclosed in the plaint.
(2) The plaintiff is an allottee of leasehold rights of shed No. B-70/. 3. New Lawrance Road Industrial Complex Delhi under Delhi State Industrial Development Corporation, for short DSIDC. The area of the shed is 80' x 20' shown as bach in the site plan attached to the plaint. Defendant No. 1 is a partnership firm of which defendants 2 to 5 are the partners. The defendants approached the plaintiff and represented that they were constrained to vacate the premises at Tri Nagar, where the business of manufacturing of plastic goods was being carried on but no suitable alternative site was available immediately to them and requested the plaintiff to accommodate them for a short period by way of temporary arrangement. The defendants promised to vacate the shed within a couple of months. Believing the assertion and assurances of the defendants, the plaintiff allowed the defendant to occupy portion of the shed measuring 34' x 20' towards the north marked as Chg. in the plan attached to the plaint as temporary licensees with clear understanding that they would remove their belongings in a couple of moths. The plaintiff had not to charge anything on account of use and occupation in view of the temporary arrangement and relationship between the parties. It is asserted that the defendants failed to fulfill their obligation and promise and did not vacate the portion of the shed and it transpired that defendants 2 and 3 started manipulating with Dsidc to the get the allotment of the shed in their favor. In early 1985, the defendants also wanted to grab the other portion of the shed which was in possession of the plaintiff but they were restrained by the Court in a suit filed by the plaintiff. it is further alleged that defendant No. 1 also filed a civil suit, being suit No. -13/84, in this Court for a declaration to the effect that the defendants had been put into possession of the entire shed on 10.11.1979 and thus the firm was a lawful occupant in respect of the entire shed. In that suit an injunction was also sought restraining the plaintiff from dispossessing the defendants. the license granted to the defendants in respect of the portion measuring 34' x 20' was terminated and the defendants were called upon to move out in early 1980, but despite that the portion occupied by them has not been vacated. In these premises the present suit for recovery of possession as well as turn damages for use and occupation at the rate of Rs. 1500.00 for a period of three years has been filed.
(3) Defendant No. 4, Smt. Savitri Devi, who was a partner in the firm defendant No. I to the extent of 25%, has admitted in her written statement that the defendant had obtained a portion of the shed and the machinery from the tenanted premises at Tri Nagar was shifted to the portion of the shed. The partnership business was continued for sometime but thereafter defendants No. 2 and 3 in collusion with the other partner i.e. defendant No. 5 have been trying to oust defendant No. 4 from the partnership, its assets and the fruits of the partnership. Defendant No. 4 had placed her lock on the premises and the factory was closed down. But defendants No. 2 and 3 illegally broke open the lock when defendant No. 4 was out of Delhi in early May, 1986.
(4) The suit is contested by defendant No. 2 who has filed a written statement as well as a counter-claim. The case set up by defendant No. 2 is that the plaintiff was allotted the shed in question by Dsidc and the plaintiff did the business of surgical cotton in the shed under licenses from Dsidc and Municipal Corporation. The plaintiff informed defendant No. 2 that the plaintiff had suffered heavy losses and was not able to carry on the business in the shed. The plaintiff was not even in a position to pay the license fee to DSIDC. In these circumstances, the plaintiff offered the shed on tenancy basis to defendant No. 2. It was agreed that defendant No. 2 would pay monthly rent of Rs. -500.00 to the plaintiff in respect of the entire shed. The plaintiff refused to issue any receipt for the rent received by him under the fear of cancellation of his shed. He also refused to execute any agreement in writing. Defendant No. 2 claims to have paid Rs. 6000.00 to the plaintiff which in turn has been paid to DSIDC. Defendant No. 2 claims that on 10.11.79 he was given the complete and exclusive possession of the entire shed as a tenant. He installed heavy machines worth Rs.l,50,000.00 for manufacturing Pvc footwear. Thereafter, defendant No. 2 had been carrying on its business in the entire shed. It is further asserted that the plaintiff took forcible possession of a portion of the shed during the night of 8th March, 1984. The plaintiff broke open the lock and took control of the main gate shown at point 'D' on the side of the portion shown as office in the plan filed by the plaintiff and completely took control of the portion shown as Abdc in the plan. The machines of the defendant were thrown around and the books etc. were taken away by the plaintiff. Defendant No. 2 was obliged to file a report in the police on 9.3.84 On 15th October, 1985 the plaintiff was obstructed the representatives of defendant No. 2 from bringing raw-material from gate 'D' in the portion left in the tenancy of defendant No. 2 and thereafter again he obstructed the representative of Defendant No. 2. It is further alleged that there is a small door which is less than the normal width at the back of the shed and is too small to bring in the raw- material stored in boxes. It is not possible to bring in the raw-material or boxes through the service-lane.
(5) By way of counter-claim, defendant No. 2 has claimed damages for the loss suffered on account of wrongful acts of the plaintiff. Defendant No. 2 has also claimed relief of possession of the portion Abdc, which portion was unauthorisedly and forcibly taken by the plaintiff' from the possession of defendant No. 2.
(6) Defendant No. 2 has filed an application under Order 39, Rules 1 and 2 Civil Procedure Code being is No. 1506/87, which is under disposal, seeking interim injunction directing the plaintiff to permit defendant No. 2 to bring his raw- material in and take out of the shed through the main front gate 'D' and providing a passage to defendant No. 2 from the portion unauthorisedly occupied by the plaintiff. It is stated in the application that defendant No. 2 suffered heavy damages and in fact his business been ruined because of the unauthorised and illegal acts of the plaintiff. The back door of the premises is so small that even the normal boxes cannot be carried in or taken out from that door. The back lane is in a dilapidated condition and is not roadworthy. In these premises ad interim injunction is claimed.
(7) The application is being opposed by the plaintiff. Claim of defendant No. 2 has been denied. It is further stated that the service lane is more than nine feet in width. From the very beginning defendant No. 2 bad an entrance from the back door. This finds mention in the report of Smt. Veena Golwamy, Local Commissioner in the suit No. 217/84 between the parties. Any how, the business of defendant No. 2 stands abandoned since 1983 and defendant No. 2 along with his brother is doing another business under the name of Jindal Stationers' at Azadpur, Delhi.
(8) I have heard the counsel for the parties and gone through the record very carefully. The case of defendant No. 2 is that he was forcibly dispossessed from the portion of the shed on 9.3,84. This application has been filed on 26.2.87 that too in a suit filed by the plaintiff for recovery of possession of a portion of the shed occupied by defendant No. 2. Defendant No. 2 claims to be a tenant in the entire shed. Nothing has been placed on record to prima facie show that defendant No. 2 is tenant in respect of the entire shed and as a tenant he was in actual possession of the entire shed. Defendant No. 2 filed a civil suit, being suit No. 213/84, in this Court against the plaintiff for declaration and injunction. In para 14 of the plaint it was alleged as under :-
'That as per the terms of the contract between the plaintiff and defendant, the plaintiff is a lawful occupant in the premises and defendant cannot evict plaintiff from the premises without due course of law.'
Prima facie, the plea of tenancy seems to be an afterthought Moreover, defendant No. 2 has not been able to show that he has any interest in the portion of the shed which is in possession of the plaintiff He cannot be allowed to enter upon the portion which is with the plaintiff Even otherwise I do not find that any case has been made out for the grant of interim mandatory injunction. There is no prohibition against the granting of temporary mandatory injunction. But it has to be issued only in rare cases where there are compelling circumstances, and where the in july complained of is immediate and pressing and it is likely to cause extreme hardship to the plaintiff In this case, I do not find any extreme hardship being caused to defendant No. 2. According to defendant No. 2, he was dispossessed on 9.3.84, but the application for interim mandatory injunction has been filed on 26.2.87. He slept over the matter for three years. It is only when the plaintiff filed this suit for possession then the defendant set up counter- claim and filed the present application for grant of mandatory injunction. Defendant No. 2 has a door from the back side. He has an entry for reaching to his portion of the shed. To my mind, it is not a case of extreme hardship. Looking from any angle, defendant No. 2 has not been able to make out a case for grant of interim mandatory injunction. The application is without merit and is hereby dismissed with no order as to costs.
(9) No observation herein contained shall be construed as an expression of opinion in respect of any matter which may arise at the time of final decision of the case.