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Ravikant Soni (LAWYER IN JAIPUR)     17 December 2010

constructive possession???

I have filed a suit for permanent injunction along with an application under o.39 r. 1 n 2 for restraining landlord forcefully eviction of tenant from demise premises.

Civil court granted ad interim injunction in favor of my client.

Then Landlord dishonestly filed went to police and adopted procedure of 145 and 146 of Cr.P.C. 

Police got attached the property by the order of attachment of SDM.

Civil suit still pending and ad interim order is still effective. 

Now in the civil court the application under o.39 r. 1 n 2 is pending for final arguments. Land lord filed an contention that tenant is no more in possession in suit property, thereby the suit become infructuous. So suit along with application under o.39 r. 1 n 2 is liable to be dismissed.

THIS IS MY CASE IN FAVOR OF TENANT.

My Query is::::

1- Property is in custodia legis. Is my suit become infructuous?

2- Would it not infer that my client is in constructive possession of suit land?

3- Can a civil court is not pass an order despite of attachment order of Sub div. Magis. in favor of me to remain in possession until the final decision of main suit.

Please help me!!!!!!!

 



Learning

 5 Replies

adv. rajeev ( rajoo ) (practicing advocate)     17 December 2010

Your suit itself is not maintainable.  Court cannot grant TI order against the land lord.  If it could have been challenged the TI order would have been vacated by appellentte court already.

Your suit itself is wrong.  You could have filed a suit like this "  Defendant may kindly be restrained permanently by vacating the tenent without following the due process of law"

SHOBHAN ANANDA GURU (Advocate)     18 December 2010

Sir, as fas i know the civil court order prevail over the ordr of Executive Magistrate. In your cae as u first approach the civil court the order by executive magistrate can be nulified or set aside. Kindly check u r pryer portion in the suit. the executive magistrate can only decide the question relating to possession and he can not decide the relating to title, but in u r case u have already admittd the tenancy. So place ur case accordingly.

Ravikant Soni (LAWYER IN JAIPUR)     18 December 2010

I think either rajoo didn't understand my queries or he replied post in a hurry. 

Why the Court can not grant TI to a tenant against Landlord??

Obviously court give the relief "with due process of law""

It doesn't matter to my query.  Plz look deeply and answer the queries.

 

further i Thank GURU for his efforts.

but plz refer any judgement here..

N.K.Assumi (Advocate)     19 December 2010

The two provisions are distinct as section 145 and 146 are to control the breach of peace and as pointed out by Guru the rights of the parties will be dtermined by the Civil court.

niranjan (civil practice)     19 December 2010

The suit is proper and maintainable. It seems 145 is initiated after the injunction order.The attachment order is obtained by suppressing facts of Stay by Civil Court and any such order will have no effect on your injunction application.


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