Delhi District Court
Shri Darshan Kumar vs (1) Sh. Raj Kumar on 6 October, 2012
ID No.02401C0060102011
IN THE COURT OF SHRI PANKAJ GUPTA, ADDL. DISTRICT
JUDGE (CENTRAL07), TIS HAZARI COURTS : DELHI.
RCA NO. 01/2011
Shri Darshan Kumar,
S/o Late Shri Kundan Lal,
Sole Prop. of M/s Kundan Lal & Co.
386, Gali No.1, Than Singh Nagar,
Anand Parbat,
New Delhi - 110 005. ........Appellant
VERSUS
(1) Sh. Raj Kumar,
S/o Sh. Bishan Das,
R/o 386, Gali No.1,
Than Singh Nagar,
Anand Parbat,
New Delhi - 110 005.
(2) Sh. Raj Kumar,
S/o Late Sh. Kundan Lal,
R/o Barrack No.11B,
Upper Anand Parbat,
New Delhi - 110 005.
(3) Municipal Corporation of Delhi,
Through its Commissioner,
Town Hall, Chandni Chowk,
Delhi - 110 006. ............ Respondents
Date of Institution : 09.02.2011
Date when the case reserved for order : 06.10.2012
Date of Order : 06.10.2012
1/6 Darshan Kumar Vs. Raj Kumar & Ors.
J U D G M E N T
1. The appellant preferred the present appeal against the judgment and decree dated 06.01.2011 (the decree) passed by the Civil Judge, Central05, Delhi (the trial court) whereby suit for permanent injunction filed by the appellant /the plaintiff was dismissed.
2. Brief facts relevant for disposal of the present appeal are that the appellant/plaintiff therein filed the suit for permanent injunction on the ground that he was the tenant under the respondent no.1/defendant no.1 in the suit property at a monthly rent of Rs.20/. He paid the electricity charges to the respondent no.1/defendant no.1 but he had disconnected the electricity supply on 11.09.1992. He also refused to accept the rent and therefore, he deposited the rent before Additional Rent Controller (ARC). On 14.09.1992, the respondents no. 1 and 2/defendants no.1 and 2 came to the premises and threatened either to increase the rent or they would raise the unauthorized construction on the wall of the shop in order to occupy the open courtyard and would lock the toilet, bathroom and entry. Once the appellant refused, they, incollusion with the respondent no.3, started raising the construction on 14.09.1992 at 5.30 a.m. They also tried to dispossess the appellant. Hence, it was prayed that the respondents be restrained from interfering in the peaceful possession of the appellant; from raising unauthorized construction on the wall of the suit property; from closing the main gate, locking the toilet and bathroom; and from dispossessing the appellant from the suit property.
3. The respondents/defendants contested the suit. After trial of the suit, the trial court dismissed the suit. Being aggrieved by the decree, the 2/6 Darshan Kumar Vs. Raj Kumar & Ors.
appellant preferred the present appeal. The respondents contested the appeal and prayed for its dismissal.
4. I have heard the Ld. Counsels for the parties and have perused the material available on record including the trial court record.
5. In grounds of appeal (D, E and F), it is pleaded that the appellant is a heart patient and has easement right. However, the respondents deprived him from light, air etc. Not the least, the trial court failed to consider that electricity and water which are the basic amenities had been disconnected by the respondents. Further, the respondents closed the stair case of the tenanted premises to harass the appellant. Perusal of the plaint reveals that the same is silent as to the plea of heart patient; easement right and disconnection of water connection by the respondents no.1 and 2. In the appeal, the appellant also tried to build up a case, as if, he filed a suit seeking the relief against the respondent no.1 and 2 to provide the basic amenities. In fact, it was a simple suit for injunction. As such, in the appeal the appellant tried to build up a new case in his favour, which cannot be allowed.
6. Counsel for the appellant submits that the trial failed to consider that on the basis of the receipt, the appellant was the tenant in the suit property. He also pleaded that the trial court also failed to consider the unauthorized construction raised by the respondent no.2. He also pleaded that respondent no.1 and 2 has no right to dispossess the appellant from the suit property. In the judgment, the trial court held as under:
"12. ............................from the facts mentioned in the plaint and evidence led by the plaintiff it is clear that 3/6 Darshan Kumar Vs. Raj Kumar & Ors.
defendant no.2 has never threatened plaintiff to dispossess him from suit property. It is only defendant no.1 who has threatened the plaintiff to dispossess him. But plaintiff in his cross examination has admitted that name of the owner is Smt. Sarbati Devi in rent receipt DX and DY and these rent receipts pertains to year 19801981 and 19831984. Those rent receipts are produced by plaintiff himself. It means in 1980, Smt. Sarbati Devi was the owner of suit property .......... Moreover, plaintiff has admitted in his cross examination that he paid rent to defendant no.1 personally somewhere in 1982 but defendant no.1 was not owner of suit property at that time. The plaintiff further admitted that he has not seen defendant no.1 since 20 years (i.e. from 1984 as cross examination is conducted on 21.09.2004). Then how defendant no.1 can threat plaintiff to dispossess him in the year 1992 as alleged by plaintiff.
13. To get the relief of permanent injunction to restrain the defendant from interfering with possession plaintiff has to prove that he is in lawful possession and defendants have threatened to dispossess him. In the present case, though the defendant no.2 has admitted the possession of the plaintiff in the suit property, but plaintiff has miserably failed to prove that defendants have ever threatened to dispossess him. Hence, plaintiff is not entitled to this relief.
4/6 Darshan Kumar Vs. Raj Kumar & Ors.
14. Now in respect of second relief, the plaintiff has alleged that defendant no.1 and 2 started to raise the unauthorized construction at the suit property on 14.09.11992 at about 5.30 p.m. But no complaint has been made by the plaintiff to MCD in this regard. Moreover, the plaintiff has admitted in his cross examination that he has not seen defendant no.1 since last 20 years and he lastly paid the rent to defendant no. 1 in 1982 not thereafter. And also take action D2W1 Sh. R.K. Banga, Asstt. Engineer, MCD has deposed that suit property was inspected by him and no unauthorized construction was noticed and nor any building material was stacked at site.
From these facts, it is prayed that no unauthorized construction was raised or started by defendants. Hence, plaintiff is not entitled to record relief as mentioned above."
7. Regarding disconnection of electricity, the trial court specifically observed:
"15............... The counsel for the defendant has cross examined the plaintiff at length and in cross examination plaintiff has admitted material facts which were not disclosed by him in his plaint. Plaintiff in his cross examination has admitted that rent receipt DX and DY bears the name of Smt. Sarbati Devi as owner of suit property. These rent receipts pertains to 5/6 Darshan Kumar Vs. Raj Kumar & Ors.
year 19801981 and 19831984. Moreover, these rent receipts are produced by plaintiff himself. Plaintiff admitted that he had not seen defendant no.1 since last 20 years (i.e. from 1984 as cross examination is conducted on 21.09.2004) then how defendant no.1 disconnected electricity supply on 11.09.21992 as alleged by plaintiff in plaint and evidence and how defendant no.1 with collusion defendant no.2 started illegal construction on 14.09.1992 a alleged by plaintiff in plaint and evidence."
8. The appellant has not challenged the above mentioned finding of the trial court. As such, the said finding has attained finality. I do not find any infirmity in the said findings of the trial court. Hence, there is no substances in the said pleas.
9. In view of the foregoing discussions, I find no infirmity in the judgment and decree of the Ld. trial court. Therefore, the appeal is hereby dismissed. No order as to cost. Trial Court record be sent back along with copy of this order.
Appeal file be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT ON 6th Day of October, 2012.
(PANKAJ GUPTA)
ADJ(CENTRAL07)/DELHI
06.10.2012
6/6 Darshan Kumar Vs. Raj Kumar & Ors.
2. Relief.
The plaintiff has failed to discharge the onus to prove his case. Moreover it is settled law that if plaintiff does not come with clean hands then he is not entitled to any equitable relief of permanent injunction. Hence, suit of plaintiff is dismissed.
7/6 Darshan Kumar Vs. Raj Kumar & Ors.