Delhi District Court
Haji Abdul Gani vs Haji Nizam Ahmed on 16 December, 2009
-: 1 :-
IN THE COURT OF MS. PREETI AGRAWAL GUPTA: SENIOR CIVIL
JUDGECUMRENT CONTROLLER: ROHINI DELHI
MCA No. 09/09.
In the matter of:
Haji Abdul Gani
S/o Late Haji Hafiz Nooruddin,
M/s Abdul Ghani & Sons,
C58, New Subzi Mandi,
Azadpur, Delhi110033.
........Appellant
Versus
Haji Nizam Ahmed
S/o Haji Idris,
C55, New Subzi Mandi,
Azadpur, Delhi110033.
.........Respondents
Date of Institution : 05.06.2009
Date of reservation: 04.12.2009
Date of Judgment: 16.12.2009.
JUDGMENT:
1. By way of this present order/ judgment, the Miscellaneous Civil Appeal filed by the appellant, who was the defendant before the Ld. Trial Court, has challenged the orders of the Ld. Trial Court dt. 13.05.09 by way of which an application of the respondent/ plaintiff U/o 39 rules 1 & 2 CPC has been disposed of in favour of the respondent/plaintiff against the present appellant / defendant. The appellant has -: 2 :- prayed for setting aside the impugned order dt. 13.05.09 with further prayer that the application U/o 39 rules 1 & 2 read with section 151 CPC filed by the plaintiff allowed by Ld. Trial Court, be dismissed. The present appeal arises in respect of property bearing No. C58, New Subzi Mandi, Azad Pur, Delhi for which the Suit for declaration, Perpetual Injunction and Mandatory Injunction has been filed against the appellant herein with the allegations levelled by the respondent/plaintiff that the appellants being the landlord of the suit property be restrained from dispossessing the plaintiff/ respondent from the suit property without due process of law during the pendency of the suit before the Ld. Trial Court. It is the case of the respondent/plaintiff before the Ld. Trial Court that he is landlord under the defendant (Appellant) in respect of the suit property on the basis of oral tenancy w.e.f. 01.08.98 and that the defendant ( Appellant) has been trying to extend threats to dispossess the plaintiff from the rented suit premises illegally and forcibly. Pending the main Suit for Declaration, Perpetual Injunction & Mandatory Injunction and an ad interim relief of protection from dispossession of the suit property except by due process of law has been sought by the plaintiff/ respondent. It is against the order of Ld. Trial Court dt. 13.05.09 on the interim application of the plaintiff ( respondent) that are being -: 3 :- challenged by way of present appeal on various grounds.
2. Without going into unnecessary details for the purpose of present Appeal, the Court shall briefly mention the facts out of which the present Appeal arises. As aforesaid, the plaintiff ( herein respondent but referred as per status before Ld. Trial Court) has filed a Suit for Declaration, Perpetual Injunction and Mandatory Injunction in respect of suit premises bearing No. C 58, New Subzi Mandi, Azad Pur, Delhi110033 comprising of entire basement, half portion of the ground floor and a common toilet on the terrace of the suit premises with the averments that the plaintiff has been carrying on business of vegetables and fruits on a monthly rent of Rs. 2,000/ w.e.f. August 1998. It has been the case of the plaintiff before Ld. Trial Court that the rate of rent between the parties were settled at the rate of Rs. 2,000/ per month without electricity and water charges payable as half of the amount mentioned against the bills . Other terms and condition stated to have been stipulated, have also been enumerated in the plaint. It is the case of the plaintiff that he has been continuously carrying on his wholesale vegetables and fruits business from the suit premises from the inception of the tenancy and that he is in actual physical use and occupation of the same. It has been averred that the defendant ( herein the Appellant but referred as per status -: 4 :- before Ld. Trial Court) has been demanding the plaintiff to surrender the physical possession of the suit premises and has been extending threats to get the suit property forcibly vacated in case the plaintiff failed to surrender the possession of the defendant. A decree of Declaration in respect of the landlord/ tenant, relationship between the plaintiff and the defendant in respect of the suit premises has been prayed for. In the suit, further relief of mandatory injunction have been sought seeking directions against the defendant to issue proper rent receipt and also a decree for perpetual injunction has been prayed for, against forcible dispossession from the suit premises against the defendant.
3. A detailed written statement has been filed on behalf of the defendant raising preliminary objections that the plaintiff had failed to supply copy of the application for preponement of the case and on the ground that the plaintiff has failed to file any application for appointment of local commissioner with the objections that the defendant reserved his right to amend his written statement in case of any concealment. The suit of the plaintiff has further been opposed on the ground that their existed no relationship of landlord and tenant between the parties and that the status of the plaintiff was only that of an illegal tress passer. The defendant has -: 5 :- denied the alleged ingredients of the rent agreement between the plaintiff and the defendant. It has been averred by the defendant that there was no rent receipt filed by the plaintiff to show existence of any relationship of landlord and tenant between the plaintiff and the defendant. The suit of the plaintiff is opposed on the ground that the possession of the plaintiff as a tress passer in the suit property could not be protected by law. It is the case put forth by the defendant that the plaintiff was allowed to sit in front of the suit shop by the defendant as he had requested the defendant that he was not well off and will arrange alternative business site soon. It is averred that the plaintiff was allowed to sit on the public place in front of the Shop No. C58, New Subzi Mandi, Azadpur, Delhi and that the defendant is a sole and absolute owner and also in his possession of the suit shop comprising of the basement , ground floor and first floor at C58, New Subzi Mandi, Azadpur, Delhi. It is averred that the son of the defendant has been using the suit shop as his store as they were running the business on a licence from B4112. It is further the case of the defendant that the documentary proofs of the plaintiff including the MTNL bills and LIC which could not confer any right of the plaintiff as a tenant over the suit shop stating that the plaintiff has played a fraud upon the government -: 6 :- authorities. The defendant has outrightly denied any right, title and interest of the plaintiff over the suit shop and has denied that the defendant/appellant herein ever exerted any pressure upon the plaintiff to surrender the physical possession of the suit shop denying that the plaintiff was ever in possession of the suit shop. The defendant has prayed for outright dismissal of the suit of the plaintiff and the interim application.
4. Replication has been filed by the plaintiff denying the allegations of the written statement and reiterating its own case.
5. Now, it shall be pertinent for the court to examine the proceedings of Ld. Trial Court up to the date of passing of the impugned order dt. 13.05.09. The present suit has been taken up by Ld. Trial Court and posted for service for the defendant for 14.05.09. However, an application for preponement of the case has been filed by the plaintiff disposed by Ld. Trial Court on 18.04.09 by which the date fixed has been cancelled. During the course of submissions, after hearing the ld. Counsel for plaintiff, Ld. Trial Court has directed the appointment of local commissioner to pay a visit of the suit premises after service of the defendant, dasti, before the day of visit of the local commissioner over the suit premises on 23.04.09. The Ld. Trial Court vide order dt. 18.04.09 has issued directions to the Local -: 7 :- commissioner to prima facie determined the factum of physical possession over the suit property in question and was directed to prepared a rough site plan. The next date of hearing was posted for 28.04.09 when the defendant has also appeared with counsel. Thereafter, an opportunity has been granted to the defendant to file objections, if any, to the report of the local commissioner and the case has been posted for arguments on 13.05.09 for hearing on the interim application which has been disposed of by the orders of Ld. Trial Court of even date as allowed thereby restraining the defendant not to dispossess the plaintiff from the suit premises during the pendency of the suit without due process of law. Hence, the present appeal filed by the appellant.
6. The court has also duly perused the report of the Ld. Local commissioner. Ld. Local commissioner has furnished the detailed report with copy of the notice served upon both the parties, rough site plan and spot proceedings, each of which has been signed by both the plaintiff as well as the defendant. The photographs of the suit property taken from different angles has also been filed alongwith the local commissioner report. The local commissioner has executed the local commission after notice to both the parties who were present at the time of execution of the commission at the suit property -: 8 :- and the notices were duly served upon both of them as per the local commissioner's report. The Ld. Local Commissioner has furnished a detailed report as per his visit on the suit premises and has stated in detail as to the factum of physical possession of the plaintiff and the defendant over different portions and goods lying in the entire suit property. The local commissioner has come to an opinion that the plaintiff is in rd possession of the 1/3 portion situated on south west side on the ground floor and half portion on the south west side in the basement. Where the defendant is stated to be in possession rd of 2/3 portion on the north west side on the ground and half portion in same side of the basement. The defendant has been found to be in possession of the first floor and terrace of the property. The Local Commissioner's report dt. 27.04.09 has accordingly, been filed before the Ld. Trial Court which has been perused as abovestated.
7. After duly considering the local commissioner report and arguments of both the sides, the Ld. Trial Court has disposed of an interim application by way of orders dt. 13.05.09 which have been assailed and challenged by way of the present Appeal by the defendant therein who is the appellant here. The Ld. Trial Court, after appreciating the facts before itself, has observed that the necessary trinity principle for grant of ad -: 9 :- interim injunction, were prima facie in favour of the plaintiff and the interim application was allowed in favour of the plaintiff with directions to the defendant not to dispossess the plaintiff from the suit premises in question without due process of law during the pendency of the suit. For the purpose of convenience, the court has herein observed that the suit premises in respect of which the present suit has been filed comprising of the entire basement of Shop no. C58, half portion of ground floor and right to use common toilet situated on the terrace of the first floor of the suit premises. This order has been appealed against by the defendant on various grounds are as under:
a. Because the impugned orders of Ld. Trial Court suffered from illegality and does not inspire any confidence as the matter was preponement for hearing despite posting dates for 28.04.09. b. The Ld. Trial Court has exceeded its jurisdiction as the Ld. Local Commissioner has been appointed without any application U/o 26 rule 9 CPC by the plaintiff/ respondent . c. The Ld. Trial Court has committed a factual error in omitting to conduct admission/denial of documents and that the issues framed on 13.05.09 vide impugned orders have been framed after ignoring vital and necessary issues raised by the appellant in the written statement.-: 10 :-
d. The Ld. Trial Court ignored the objections of the appellant about lack of any landlord/tenant relationship between the parties in respect of the suit premises.
e. The Ld. Trial Court ignored the facts that the status of the respondent /plaintiff is merely that of a tress passer who is not entitled to any protection by court of law.
f. The Ld. Trial Court ignored the fact that the respondent/ plaintiff was paying the bills after committing a fraud upon government agencies .
g. The Ld. Trial Court erred in ignoring the fact that the respondent was not having any licence from APMC. h. The Ld. Trial Court passed the impugned order ignoring the requirements of existence of essential ingredients of having been a prima facie case, balance of convenience in favour of the plaintiff and that of suffering from an irreparable loss and injury by the plaintiff.
i. The Ld. Trial Court failed to appreciate that the plaintiff/respondent did not have any local standi to file the suit. k. The Ld. Trial Court wrongly relied upon the report of the Ld. Local commissioner.
l. The impugned orders of the Ld. Trial Court are based on conjectures and surmises on the basis of disputed facts without any basis or law.-: 11 :-
8. The detailed reply on behalf of the respondent to the Memorandum of Appeal has been filed with the averments that the present appeal does not disclose any merits praying for dismissal of the same with compensatory costs. It is the case of the respondent that the impugned order passed by Ld. Trial Court are sound and justiciable based a well reasoned exercise of discretion by ld. trial court. The respondent herein who is the plaintiff before the Ld. Trial Court has reasserted his status as a tenant in respect of suit premises with the averments that the grounds of appeal disclose disputed question of facts and law which needs investigation. It is the case of the respondent that a strong prima facie case exists in favour of the respondent/ plaintiff denying that the respondent played any fraud upon any government agency as alleged by the appellant in respect of the amount against bills paid by the appellant to various authorities. The respondent has also averred in support of the orders of the Ld. Trial Court stating that the present Appeal is absolutely irrelevant, misconceived, baseless and without any substance. It has been prayed that the appeal be dismissed as the same is an abuse of process of law in levelling scandalens allegations against the Ld. Trial Court and the local commissioner. It has been further denied -: 12 :- that any legal right of the respondent has been denied in absence of admission /denial of the documents before framing of issues vide impugned orders of Ld. Trial Court on the ground that no such document is filed on record which requires admission / denial at this stage as the documents on record shall require trial. It is further the case of the respondent that the respondent is in possession of the suit premises in capacity of his own right and thus right to protection of the court pending the suit thereby reiterated in favour of the impugned orders of the Ld. Trial Court.
9. The court has duly appreciated vehement arguments addressed by ld. counsel for appellant/defendant and the respondent/plaintiff herein. The court has also duly appreciated the law applicable to the facts of this case as also gone through the authorities relied upon by each side. It shall be foremost relevant for the court to examine the proceedings before Ld. Trial Court which have led to passing of the orders dt. 13.05.09 which is the subject matter of challenge before this court. It has been very strongly asserted and contended in this appeal that the impugned orders suffered from illegality and deserve interference by this court for the reason that the defendant has been denied a legal right and knowledge regarding the filing of the application for -: 13 :- preponement of the case after filing of the suit when the notice of the same must have issued to the defendant who is appellant herein and further on the ground that the local commissioner has been appointed by the Ld. Trial Court without any formal application U/o 26 rule 9 CPC by the plaintiff. On this account , it shall be relevant for the court to observe that the order dt. 18.04.09 are not a subject matter of the appeal but the court consider it relevant to examine the record of the Ld. Trial Court for the purpose of arriving at a just and reasonable opinion on the merits of the appeal in light of the grounds of the appeal alleging that there has been absence of proper procedure that has led to a wrong disposal of the application U/o 39 rules 1 & 2 CPC vide impugned orders dt. 13.05.09. The appreciation of the record of Ld. Trial Court on assignment of the case, the matter was first slated for service of defendant for 14.05.09 but was taken up on a preponement of application at the instance of the counsel for plaintiff. Record reveals that on the date of orders of Ld. Trial Court dt. 18.04.09, the summons of the suit was yet to be issued upon the defendant who is the appellant herein and, therefore, there was no occasion, rightly so, for the Ld. Trial Court to direct issuance of notice of application for preponement upon the defendant. The Ld. Trial Court was -: 14 :- well within its jurisdiction to entertain the preponement application in exercise of its judicial discretion. The court has further appreciated the orders of Ld. Trial Court dt. 18.04.09 by which the local commissioner has been appointed. The bare perusal of the detailed order of appointment of local commissioner dt. 18.04.09 passed by Ld. Trial Court reveals that the local commissioner was appointed by the Ld. Trial Court after arriving at an objective satisfaction regarding the nature of the suit and the prayer for urgency. Record further reveals that local commissioner, so appointed was under the directions of the Ld. Trial Court to give a formal notice to both the parties before proceeding with the execution of the commission for determining prima facie as to who is in possession of the suit property in question which is shop no. C 58, New Subzi Mandi, Azadpur, Delhi33 as mentioned in the suit. The plaintiff was further directed to serve the copy of order of appointment of local commissioner upon the defendant, dasti well before the date fixed for execution of local commissioner on 23.04.09. Record further reveals that the local commissioner visited the suit property on directions of the Ld. Trial Court on 23.04.09 and executed the commission in presence of both the appellant ( defendant) and the respondent ( plaintiff). The notice, rough site plan, spot -: 15 :- proceedings reflect the signatures of both the appellant as well as respondent on spot. In view of the aforesaid facts and circumstances, the court is of the satisfactory view that there has been no procedural error committed by the Ld. Trial Court in disposing of interim application U/o 39 rules 1 & 2 CPC vide impugned order dt. 13.05.09 as assailed and asserted in the present appeal. There is no irregularity or illegality disclosed after due appreciation of record, facts of the case and the applicable law that would itself make the impugned orders of the Ld. Trial Court liable to be set aside or bad in itself.
10. The court has now examined the other important grounds of appeal wherein the appellant has averred that the factual error has been committed by Ld. Trial Court by omitting to conduct admission/denial of the documents with the further averments that the impugned orders dt. 13.05.09 have been passed after ignoring vital and necessary issues raised by the appellant in his written statement. The court has carefully gone through the entire record of the Ld. Trial Court in light of the documents filed by each of the parties. Whereas each of the plaintiff and the defendant have filed bulk of documents in support of their respective cases, each of the documents pertained to either the government authorities or business transaction with third party. Neither of the documents of the -: 16 :- appellant ( defendant ) or respondent ( plaintiff) before the Ld. Trial Court are of a nature that called for any admission/denial since the very basis of the suit filed by the respondent / plaintiff before the Ld. Trial Court is based on the assertion that the tenancy was created in the suit premises by the appellant /defendant in favour of the respondent/plaintiff by an oral agreement. The suit of the respondent/plaintiff before the ld. Trial Court is based on the averments that he is in settled possession in respect of portion of shop No. C58, New Subzi Mandi , Azadpur, Delhi as shown in site plan and has prayed for an adinterim relief by way of injunction against the defendant ( who is appellant herein) for protection from forcible dispossession pending the main suit. In the written statement filed on behalf of the defendant ( who is appellant), the appellant herein has attributed the plaintiff to be in possession of the portion of the shop in question in capacity of an illegal tress passer denying any oral alleged rent agreement. The suit of the plaintiff has been denied by the defendant ( appellant ) on the ground that the plaintiff was an illegal encroacher upon the suit premises as a permissive user outside the shop by the defendant. The documentary proofs attached with the plaint such as LIC, MTNL bills , driving licence are as such not the documents executed by the appellant/ -: 17 :- defendant that shall call for any admission/denial but are only documents stated to have been obtained by the respondent / plaintiff in respect of the suit premises by playing fraud upon the government authorities. After due appreciation of the entirety of the record and pleadings, there is no material available on the Trial Court Record that could call for admission/denial of the documents by either of the parties in respect of the documents of the parties. Even otherwise, the ld. Trial Court while passing the impugned order dt. 13.05.09 has observed that "admission /denial of documents is not conducted" meaning thereby that the parties themselves chose not to conduct admission/denial as there was apparent occasion, to do so, from the material available on record in the present suit before the Ld. Trial Court.
11. The court has also examined the present appeal in respect of the alleged error in framing the issues after ignoring vital and necessary issues raised by the appellant in the written statement as has been detailed herein above in this appeal, Vehement objections have been raised by the defendant in the written statement primarily denying the case of the plaintiff on factual averements as stated in the suit. It is the case of the defendant that the plaintiff is not entitled to the relief claimed in respect of the suit premises denying that the plaintiff is a -: 18 :- tenant with the averments that the status of the plaintiff is only of a illegal tress passer. In the written statement, the defendant has further prayed for dismissal of the suit on the ground that the plaintiff has intentionally and deliberately concealed the material facts from the court and has been guilty of suppression of material facts. In the entirety of the written statement, the defendant has denied and seriously opposed the averments in the plaint praying for dismissal of the suit. The court shall briefly refer to the relevant law on the aspect of framing of the issues. A civil court is under an obligation, by law, to frame such triable issues that are asserted by one side and denied by the other so as to bring the points of reference for the purpose of conducting relevant trial . The sole intent and purpose for framing the issues in a civil case is to crystallize the actual dispute between the parties upon which each of the parties are casted with the onus to prove their respective assertions. In the present case, as such, there are no material legal objections as to the maintainability of the suit in respect of which, the court could cast any duty upon the defendant to discharge the onus to prove issue. As the suit has been filed by the plaintiff on the basis of the claim regarding the existence of certain rights in respect of the suit premises which are outrightly denied by the defendant who are -: 19 :- appellant in this court, there is as such, absence of any relevant factual assertion of the defendant for which the defendant can take upon himself to prove the same in order to disprove the case of the plaintiff. The law casts a duty upon the plaintiff to prove its case. It shall be unjust for the court of law to burden the opposite side ( Appellant / Defendant in this case) to disprove the case of the plaintiff. To the mind of this court, the appellant has challenged the impugned orders of the ld. court on the wrong side since, if the court finds confirmity on the ground of appeal prayed for, the outcome shall certainly be against the very interests of the appellant/ defendant. Nevertheless, this court is to justify and consciously examine the relevant facts and law for a reasonable and judicial exercise of its Appellant Jurisdiction and is of the considered view that the impugned orders of the Ld. Trial Court do not show any irregularity and illegality in respect of the directions of the closing of admission/denial of documents and framing of issues as framed vide the impugned orders.
12. The court has now appreciated the most vigorously contended and hotly argued ground of appeal. The appellant has challenged the impugned orders of Ld. Trial Court on the ground that the Ld. Trial Court has ignored the objections of the appellant about lack of any landlord tenancy relationship in -: 20 :- respect of the suit premises between the parties and the allegations of the appellant/ defendant that the respondent/ plaintiff is merely a tress passer in the suit premises who is not entitled to any protection of court of law. Also, the court shall examine the other connected ground of appeal whereby, it is the case of the appellant that the impugned order of the Ld. Trial Court have been passed in error by ignoring the fact that the plaintiff has committed a fraud upon the government agency in paying the bills without any right in respect of the suit premises and that the respondent/ plaintiff has no locus standi to file the suit. The court has duly considered the observations of the Ld. Trial Court in light of various grounds of appeal, under discussion and has duly appreciated various authorities relied upon by the ld. counsel for the appellant in this regard. The court has also duly examined the report of the Ld. Local Commissioner which has been considered by Ld. Trial Court while passing the impugned orders in disposing of interim application U/o 39 rules 1 & 2 CPC.
13. It is well settled principles of law that relief of grant of temporary or adinterim injunction is based on equitable discretion of the court which is to be reasonably exercised. The claiming person for grant of temporary injunction is to prove the existence of the following grounds:
-: 21 :-
(i)that there is a primafacie case in favour of the claimant,
(ii) that the grant of such injunction during the pendency of the suit is necessary to protect the plaintiff from irreparable injury which can not be adequately compensated by way of damages and that the injury need not be actual but may be based on appreciation.
(iii)that the court is required to weigh the balance of convenience for issuing or witholding the relief claimed.
14. The court duly considered the facts of the case to examine if the Ld. Trial Court has reasonably exercise its discretion in order to determine the existence of aforesaid trinity principle before granting the relief of adinterim injunction in favour of the plaintiff against the defendant. It has been duly discussed by Ld. Trial Court vide impugned orders that the defendant himself has admitted the fact & physical possession of the plaintiff in the suit property, though, the extent and area of the suit property is a subject matter of the dispute. The Ld. Trial Court has also duly considered the facts that the court has to see only prima facie case at the stage of disposal of the interim application and has observed that the plaintiff was found to be in physical possession of various portions of the suit property as per report of the Local -: 22 :- Commissioner. The Ld. Trial Court has further discussed the law as laid down by the Hon'ble High Court of Delhi in Hem Chand Vs. Anil Kumar (1992) R.L.R. 224 and also in Baldev Raj Vs. DDA (1971 R.L.R. 84) wherein Hon'ble High Court of Delhi has been pleased to lay down the law that the court while granting of temporary injunction is to examine a prima facie not to the extent of Prima Facie Title but askable or substantial questions which raise bonafide case requiring investigation. The Hon'ble High Court of Delhi has been pleased to hold that even a tress passer of long occupation is entitled to interim protection by the court of law. The Ld. Trial Court has further discussed in the impugned order dt. 13.05.09 that the plaintiff has been able to raise a substantial question of law in respect of his possession over the some area of the property in question and , therefore, had a prima facie case in his favour. Ld. Trial Court has further observed that balance of convenience also seemed to be in favour of the plaintiff who was likely to suffer irreparable loss if the interim protection to not to be dispossessed from the suit premises pending the suit, without due process of law, was not granted. In this light and for these reasons, Ld. Trial Court has been pleased to pass the impugned orders allowing the interim application. The court has duly appreciated the findings and reasons stated in -: 23 :- the impugned orders in light of the facts of the case. The respondent / plaintiff has claimed his right of tenancy over the suit premises and has placed a prima facie case on the basis of numerous documents including the existence of MTNL telephone connection in his own name at the suit premises. The plaintiff is also admittedly a holder of driving licence, bank accounts and furnished various other proofs of settled possession on record alongwith the suit. The appellant has strongly denied the right of enjoyment of the plaintiff( respondent) to have such documents at the suit premises alleging that the respondent ( plaintiff) has been playing a fraud upon the government agencies. During the course of arguments, ld. counsel for appellant has contended before the court that the appellant herein has placed blind faith and reliance upon the respondent (plaintiff) on the basis of good relationship and had allowed. The respondent (plaintiff) to deposit the electricity bills in respect of the suit premises on his behalf. It has been argued that the respondent /plaintiff fraudulently and maliciously started depositing the cheques of electricity and water from his own accounts without any such authority from the Appellant. It has been argued vehemently that the respondent/ plaintiff was only a permissive user to sit for retail sale in front of the shop of the appellant out of -: 24 :- sympathy. It has been further argued that there was no cause of action in favour of the plaintiff/ respondent as wrong allegations of any threats have been extended upon the respondent by the appellant have been leveled by the respondent.
15 The aforesaid contentions are to be appreciated in light of the report of the Ld. Local Commissioner who has filed a detailed report after physical inspection of the suit premises in presence of both the parties. The appreciation of the report of the local commissioner who visited the suit premises on 23.04.09 itself reveals that there exists a serious dispute between the appellant and the respondent to the extent of possession and the respective area of possession with each of the parties in the suit shop. The report of the local commissioner can only be conclusively relied upon after each of the parties have led their respective evidence and at the interim stage of disposal of interim application and adjudication of the present appeal, the report of the local commissioner can be considered by the court in order to arrive at a prima facie just and reasonable opinion about the state of physical possession of each of the parties over the suit premises. The Ld. Local commissioner has categorically stated that the plaintiff is in possession of one third portion on the ground and -: 25 :- half portion in the basement on the south west side, whereas rd the defendant is in possession of 2/3 portion of the ground and half of the portion on the basement of north west side. It has been further reported by the local commissioner that the defendant is in exclusive possession of the first floor and the terrace of the suit property. The suit has been filed by the plaintiff in respect of the portion shown in red in the site plan by which the plaintiff claims to be in possession of the suit shop to the extent of area beyond the portion reported by the local commissioner in his report filed before the Ld. Trial Court. The court has also duly considered the various judgment and authorities relied upon by ld. counsel of appellant / defendant. The court has carefully gone through the authorities wherein various High Courts have categorically held that it was not necessary for the court to grant protection to every person who is in possession of the property. It has been held by the Hon'ble High Court in AIR 1996 Delhi (1) in M/s G.M. Modi Hospital and Research Centre Medical Science Vs. Shankar Singh Bhandari that " for ground of temporary injunctiion, the petitioner must shown that he has a legal right and there has been an evasion of such legal right ". The authorities which have been relied upon for the appellant are pertaining to the law laid down by the Superior Courts -: 26 :- holding against grant of temporary injunction in favour of the plaintiff where there was no reliable and cogent evidence placed on record in respect of the tenancy,( 69 (1997) DLT 302). The court has also appreciated the other authorities relied upon by he appellant and after duly applying the same to the facts of the present case, this court is of the considered view the facts of the case have been rightly distinguished by Ld. Trial Court vide impugned orders dt. 13.05.09 in so much as the plaintiff is in well settled possession as per the primafacie case before the court in respect of the portion in the suit shop as per Local Commissioner report. The appellant / defendant has raised strong defence against the plaintiff challenging the tenancy claim of the respondent/ plaintiff in respect of the suit premises but the same shall be the subject matter of trial and there is as such, sufficient prima facie material on record to show that the plaintiff has been entering upon the suit premises since last number of years and the present case is not that of the alleged claim of the plaintiff for possession without any prima facie supporting material.
16. In view of the aforesaid discussion and facts stated herein above, this court is of the considered opinion that as such, the Ld. Trial Court while passing of impugned order dt. 13.05.09 has rightfully observed the existence of trinity -: 27 :- principles in favour of the plaintiff / respondent against the defendant / appellant. The appellant shall have the opportunity to prove its defence and contention and averments of the written statement by disproving the case of the plaintiff during trial. However, at this interim stage, the very purpose of filing the suit by the respondent/ plaintiff can not be frustrated by denying the interim protection from illegal dispossession in the suit premises except by due process of law, pending the suit. The order of Ld. Trial Court dt. 13.05.09 are however, modified to the extent that the defendant shall be restrained from dispossessing the plaintiff from the portion to the extent of physical possession of the plaintiff in the suit premises bearing No. C58, New Subzi Mandi, Azadpur, Delhi as per report of local commissioner dt. 27.04.09. The appeal is accordingly stands disposed of. Trial Court Record be sent back alongwith copy of this order/ judgment to the Ld. Trial Court. Appeal file be consigned to record room.
ANNOUNCED IN OPEN COURT TODAY i.e. 16.12.2009.
( PREETI AGRAWAL GUPTA ) Senior Civil JudgecumRent Controller (NorthWest), Rohini, Delhi.