JUDGMENT
S.B. Wad, J.
(1) This is the plaintiff’s Revision Petition against the order of the Senior Sub-Judge, Delhi, dated 11-2-1985 reversing the order of the Sub-Judge, Delhi, granting injunction under Order 39, Rules 1 and 2. This is the second time when the Revision Petition has been brought to this court by the plaintiff. In the first revision, namely, C.R. 1054 of 1982 I had passed an order on 30-1 1-1982. It was contended in the said Revision Petition that the N.D.M.C. bad passed resolution No. 88 on 25-3-1981 whereby the N.D.M.C. had taken a policy decision to renew the licenses of the licensees in the Yaswant Place by taking additional 30 per cent license fee only. Two other questions raised in the suit were whether the plaintiff is the licensee or lessee of Chanakya Cinema and whether the agreement dated 29-3-1980 was vitiated by coercion or undue influence by the N.D.M.C. In my order dated 30-11-1982 I had stated : “THE moot question is whether the cinema house of the plaintiff is covered by the said Resolution or not. The proper forum for the decision is the trial court where the suit is pending. Any order that would be passed here on an interim order would prejudice the contentions, of the parties in the main suit. The proper order, therefore, would be to dispose of this petition with the direction that the parties shall appear before the trial court. The trial court will hear the application for interim injunction now moved by the plaintiff and in which the notice has been issued. The parties shall appear before the trial court on 17-12-1982 as already ordered. Till the matter is finally heard and disposed of by the trial court, the present interim order passed on 18-10-1982 in the present civil revision will continue operation.”
The plain reading of the order would make it clear that the injunction of this court while passing the said order was that the N.D.M.C. should charge only 30 per cent additional license fee till the disposal of the suit.
(2) When the matter was taken up again by the learned Sub-Judge he found that the question as to whether the cinema house in question was covered by the resolution No. 88 dated 25-3-1981 of the NDMC would require further evidence to be taken. The learned Judge found that the consequence of non-payment of the amount demanded by the NDMC would be the reentry by the NDMC of the cinema, thus seriously affecting the plaintiff’s business. The court, therefore, found that the prima-facie case, the balance for of convenience and consideration of irreparable loss was in favor of the plaintiff. The Sub-Judge, therefore issued the injunction to the NDMC.
(3) The NDMC filed an appeal against the order and through the impugned order the learned Senior Sub-Judge has reversed the order of the trial court and vacated the injunction granted by the learned Sub-Judge. The learned Senior Sub-Judge erred in interpreting the order passed by this court on 30-11-1982 to mean that the interim order of the payment of 30 per cent additional fee was to operate only till the disposal of the fresh application for interim injunction as was disposed of. The learned Senior Sub-Judge has not read the order in entirety and particularly the observation that any order passed at the interim stage would prejudice the parties in the suit. The learned Senior Sub-Judge thereafter, recorded his own findings and held that the transaction between the parties was that of license and not of lease, that there was no coercion and undue influence practiced by the N.D.M.C. The appellate court after analysing the said resolution of the NDMC held that it was not applicable to the plaintiff’s case. To my mind the Senior Sub-Judge was not competent to record such findings because that was the function to be performed by the trial court after the parties had led their evidence. The effect of the order of the learned court was to pre-empt the findings in the trial court which can only be arrived at after the parties have been given full opportunity and after the evidence has been led. The order of the Senior Sub-Judge cannot, therefore, be sustained in law. It may be noted that the trial court had allowed the amendment of the plaint by its order dated 28-2-1983 to incorporate the plaintiff’s contention regarding the applicability of the N.D.M.C.’s resolution dated 25-3-1981 and, therefore, a full trial on this issue, after taking evidence was necessary. It may further be noted that the order of this court dated 30-11-1982 had become final since no appeal was taken to the Supreme Court by the NDMC against that order. The counsel for the plaintiff has brought to my notice an order passed by the Supreme Court in Writ Petition No. 6961 of 1981. That was the petition filed by the President-Yaswant Place Traders Association raising a question as to whether they were entitled to the benefit of the said resolution of the NDMC and whether their licenses could be renewed only by payment of 30 per cent enhanced fees. On 26-7-1982 the Supreme Court issued rule nisi and passed the following orders: “ISSUE rule nisi. Pending disposal of the Writ Petition there will be stay of proceedings for recovery of the amount of license fee and eviction on the condition that each of the petitioners will pay to the respondents within two months from today, the amount representing license fee calculated at the rate of the original license fee plus 30% enhancement with effect from the date when the renewal of the license was due in the case of each petitioner and that the further amount of the license fee at the same enhanced rate will be. paid by each of the petitioner to the respondent on or before 10th of each succeeding month. The amount of license fee paid will be credited by the respondent to the account maintained in respect of each shop for which the payment is made. This interim order will be without prejudice to the rights and contentions of the parties.”
The order of this court dated 30-11-1982 was thus in keeping with the order of the Supreme Court.
(4) For the reasons stated above, the Civil Revision is allowed and the appellate order of the Senior Sub-Judge dated 1 1-2-1985 is set aside. The plaintiff will be entitled to the status quo regarding possession and will carry on the business in Chanakya Cinema on payment of additional 30 per cent license fee till the disposal of the suit by the Sub-Judge. The C.R. is allowed with no order as to costs.
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