Delhi District Court
Smt. Surma Rani vs Smt. Swaran Kanta on 3 September, 2015
IN THE COURT OF CIVIL JUDGE, SOUTH EAST DISTRICT,
SAKET COURTS COMPLEX, SAKET, NEW DELHI
Presiding Officer: Dinesh Kumar, DJS
Suit No. 290/2014
Unique ID no. 02406C0178542014
In the matter of :
Smt. Surma Rani,
W/o Late Sh. Durga Prasad,
R/o E660, Dhrama Pal Colony,
Aali Vihar, New Delhi. .........Plaintiff.
vs
1. Smt. Swaran Kanta,
W/o Late Sh. Trilok Chand.
2. Sh. Mahesh,
S/o Late Sh. Trilok Chand.
3. Dinesh,
S/o Late Sh. Trilok Chand.
All:
R/o E660, Dhrama Pal Colony,
Aali Vihar, New Delhi. ......Defendants.
Date of institution of Suit : 22.07.2014
Date on which order was reserved : 26.08.2015
Date of pronouncement of the order : 03.09.2015
ORDER
1. Before deciding the suit on merits, I shall decide an application moved by the defendants on 02.09.2015. On 02.09.2015, the defendants moved present application for recalling of order dated CS No.290/2014 Smt. Surma Rani Vs. Smt. Swaran Kanta & Ors. Page 1 of 16 17.08.2015 and seeking permission to lead defence evidence. However, none has appeared today on behalf of defendants. Even otherwise, the application is not maintainable. It appears that the application has been moved under Order 9 Rule 7 CPC. It is stated in the application that due to serious illness of defendant no.1 and due to mental depression of defendant no. 2 they could not appear in the Court on 09.07.2015 and they could not contact their Counsel till 28.07.2015. On 09.07.2015, Counsel for defendants appeared in Court. The matter was adjourned for 25.07.2015. Due to strike of Bar in Delhi, the Counsel could not appear in the Court. The matter was adjourned for 17.08.2015. However, the clerk of the Counsel noted wrong date and informed that matter was adjourned for 19.08.2015. the Counsel therefore came on 19.08.2015. However, the case was not listed. On inquiry he came to know that the matter was fixed for 17.08.2015 and it was adjourned for 26.08.2015. Hence, present application is moved to recall the order dated 17.08.2015 and to permit the defendants to lead evidence.
2. Perusal of the record would show that the matter is at the stage of pronouncement of judgment. Thus the suit was reserved for judgment and not adjourned for hearing when the present application was moved by the defendants. Once, a suit is reserved for judgment, Order 9 Rule 7 can not be invoked by the defendant to recall the ex parte proceedings. Therefore, without making any comments on the CS No.290/2014 Smt. Surma Rani Vs. Smt. Swaran Kanta & Ors. Page 2 of 16 merits of the application, I am of the considered opinion that it is not maintainable. It is therefore, dismissed and disposed of accordingly. JUDGMENT
3. Now I proceed to decide the suit on merits. The plaintiff has filed the present suit for permanent and mandatory injunction. The plaintiff has stated her case as under:
3.1. The plaintiff is a widow of 68 years. The defendant no.1 is the real eldest daughter of the plaintiff, whereas defendant no.2 and 3 are the real sons of the defendant no.1.
3.2. The plaintiff had purchased a property bearing no. E660, Dharam Pal Colony, Aali Vihar, New Delhi, admeasuring 60 sq. yards approximately, from her own funds, in the year 1993. This property was located in Khasra no.281, Village Aali, New Delhi. At the relevant time of aforesaid purchase, the plaintiff was employed with Super Bajar, Delhi. Later on, gradually, the plaintiff raised constructions at the said plot and after its completion she even kept tenant in the property just to survive as well as to keep company at old age.
3.3. In the year 2007, the husband of defendant no.1 died.
After this tragic death, all the defendants barged in the house of the plaintiff as a matter of right and requested the plaintiff to provide some portion in her property as they were not having any source of income even to survive. Keeping in view the family bond existing CS No.290/2014 Smt. Surma Rani Vs. Smt. Swaran Kanta & Ors. Page 3 of 16 between the parties, the plaintiff gave defendants shelter and provided a part of property, i.e., one room set (hereinafter called 'the suit property') on humanitarian grounds, merely as a permissive user. The rest of the property always remained with plaintiff. 3.4. Later on, the defendants came with a plea that after obtaining some suitable accommodation in the locality, they would vacate the suit property. The plaintiff permitted them to stay in the suit property temporarily.
3.5. After passage of time, the defendants started showing their true colours and created all sorts of problems for the plaintiff. It became apparent that defendants had entered into the suit premises with a motive to grab the entire property.
3.6. After passing few months in the suit property, the defendants started quarreling with plaintiff on petty issues. The defendants did not hesitate in beating the plaintiff as well as her another younger daughter, Ms. Santosh Rani, who had tried to extend some help to the plaintiff. Each time, neighbors used to save the plaintiff. Plaintiff being a widow and a helpless lady never tried to raise her voice against the atrocities of the defendants. 3.7. The plaintiff has only this property for all practical and survival purposes. In order to achieve their nefarious designs and in order to throw plaintiff out of the said property, the defendants aggravated their acts, harassed, abused and threatened plaintiff in all CS No.290/2014 Smt. Surma Rani Vs. Smt. Swaran Kanta & Ors. Page 4 of 16 possible manner.
3.8. As the plaintiff was not having any other efficacious remedy, a complaint dated 13.08.2007 was preferred with local police station. However, no action was taken. The defendants, in the mean time started using electricity illegally. They threatened the plaintiff with dire consequences and tried to force her to enter into a compromise by leaving entire property for defendants. The plaintiff was forced to prefer various complaints on 20.02.2008, 25.04.2008, 27.05.2008, 28.08.2009 and 29.08.2009 etc. with local police. 3.9. In order to address her grievances, the plaintiff repeatedly filed various complaints but in vain. As there was no positive response from the concerned police officials, plaintiff preferred a writ petition before Hon'ble High Court of Delhi. In the said writ petition, the local police filed a status report on 27.07.2010 and another one on 05.08.2010, time and again assuring of providing all help to the plaintiff.
3.10. Despite defendants being apprised of the proceedings of the said case, they further continued to raise quarrels with plaintiff with only ulterior object to usurp the entire property. Further complaints were preferred with local police.However, no action has been taken. The younger daughter of the plaintiff who came for the rescue of the plaintiff was also beaten up and threatened by the defendants. A complaint was preferred on 10.11.2013 against the CS No.290/2014 Smt. Surma Rani Vs. Smt. Swaran Kanta & Ors. Page 5 of 16 defendants. Despite several complaints, defendant no.2 boasted that he was enjoying patronage of local police as well as local goons and would not hesitate in taking law in his hands.
3.11. The defendants have even claimed of having prepared forged papers of the property in their name qua suit property which gave nightmares to the plaintiff. Therefore, a contempt petition was preferred before the Hon'ble High Court of Delhi. In response to said petition, a status report dated 04.03.2014 was filed by the local police. Now the plaintiff does not want the defendants to reside in the suit property along with her. Hence, the present suit has been filed with the following prayer.
"A. to pass a decree of mandatory injunction in favour of the plaintiff and against the defendant jointly and severally thereby directing all the defendants to vacate the suit property i.e. a part of property bearing no.E600, situated in Dharampal Colony, Alai Vihar, Badarpur, New delhi110044 more specifically shown in red colour in the site plan attached with plaint;
B. to also pass a decree of permanent injunction against the defendants and in favour of plaintiff thereby restraining the defendants jointly and severally from creating any third party interest with regard to suit property bearing no.E600, situated in Dharampal Colony, Aali Vihar, Badarpur, New Delhi110044."
4. The Court issued the summons to the defendants. The defendants have appeared. They have filed WS. They have stated in their WS as under:
CS No.290/2014 Smt. Surma Rani Vs. Smt. Swaran Kanta & Ors. Page 6 of 16
4.1. The suit is not maintainable. The defendants are in possession of suit property for last more than 7 years. The plaint does not discloses any cause of action. The plaintiff is out of possession of the suit property and therefore, suit for injunction is not maintainable.
The plaintiff has not valued the suit properly. She has not paid the proper Court Fee.
4.2. It is admitted that the plaintiff had purchased the suit property from her own funds in the year 1993. It has also been admitted that the plaintiff has raised the constructions on the plot. However, in the year 2007, the plaintiff had requested the defendant no.1 and her husband to invest money from sale of the his property. Defendant no.1 invested an amount of Rs.1,00,000/ as per oral agreement between the parties. The plaintiff had agreed to give the suit property to the defendants. She had also assured the defendants that she would never separate the defendants from her during entire life. Hence, the defendants have full rights in the suit property as owner.
4.3. The plaintiff has already given the suit property to the defendants by taking Rs.1,00,000/ as investment. She had also asked the defendants to give her expenses every month for her requirements. The defendants have been paying money to her every month which is not disclosed by the plaintiff.
4.4. The plaintiff is induced by the builders and other people to CS No.290/2014 Smt. Surma Rani Vs. Smt. Swaran Kanta & Ors. Page 7 of 16 dispose of the property. Therefore, she has made false allegations against the defendants. There are no merits in the suit. Hence, it is prayed that it may be dismissed.
5. The plaintiff has filed replication in which she has denied the allegations made by the defendants and reiterated the facts stated in the plaint. On the basis of the pleadings, following issues have been settled:
1. Whether the plaintiff is entitled to decree of mandatory injunction as prayed for ? OPP
2. Whether the plaintiff is entitled to a decree of permanent injunction as prayed for ? OPP
3. Whether the plaintiff has not valued the suit properly for the purpose of jurisdiction and Court Fee ? OPD
4. Whether the plaintiff has not paid the proper Court Fee ? OPD
5. Relief.
6. The plaintiff examined herself as PW1 to prove her case.
The plaintiff has reiterated the facts stated in the plaint. She has relied upon the following documents:
a) Copy of chain of property papers is Ex.PW1/A (colly8 pages);
b) site plan of the suit property is Ex.PW1/B;
c) copy of complaint dated 13.08.2007 to SHO PS Sartia Vihar is Mark A;
d) Copy of complaint dated 20.02.2008 to PS Sarita Vihar CS No.290/2014 Smt. Surma Rani Vs. Smt. Swaran Kanta & Ors. Page 8 of 16 is Mark B;
e) copy of complaint dated 25.04.2008 is Mark C (2 pages);
f) copy of complaint dated 27.05.2008 is Mark D;
g) Copy of status report of PS Sarita Vihar dated 27.07.2010 is Mark G and copy of status report of PS Sarita Vihar dated 05.08.2010 is Mark H;
h) the status of report of PS Sarita Vihar dated 04.03.2014 is Mark I.
7. The witness was cross examined. The plaintiff did not examine any other witness and therefore PE was closed and matter was fixed for DE vide order dated 02.06.2015. Three opportunities were granted to the defendants to lead evidence subject to cost. However, they failed to deposit the cost of Rs.1,000/. They failed to even appear in person or through Counsel when the matter was fixed for defence evidence on 25.07.2015 and 17.08.2015. Therefore, the opportunity to lead DE was closed on 17.08.2015. and the matter was fixed for final arguments.
8. On 26.08.2015, defendant no. 2 appeared in person and filed affidavit of witness. However, the same was not taken in evidence as opportunity to lead DE was already closed. The opportunity of oral arguments was also closed as they had failed to deposit the cost. Ld. Counsel for the plaintiff was heard and the matter was reserved for judgment. On 02.09.2015, the defendants CS No.290/2014 Smt. Surma Rani Vs. Smt. Swaran Kanta & Ors. Page 9 of 16 moved application for recalling order dated 17.08.2015 and permission to lead defence evidence. The said application has been dismissed as stated herein above. The defendants have filed written arguments in support of their defence.
9. I have heard the submissions of Ld. counsel for plaintiff and considered the written submissions of the defendants and perused the material on record carefully. The defendants in their written submissions have reproduced the grounds taken in the WS. My issue wise findings are as under.
10. Issues no.3 and 4: These issues are taken together as they require common discussion.
"3. Whether the plaintiff has not valued the suit properly for the purpose of jurisdiction and Court Fee ? OPD "4. Whether the plaintiff has not paid the proper Court Fee ? OPD"
11. The onus to prove these issues was on the defendants. However, the defendants have failed to lead any evidence. Plaintiff has valued the suit for the purpose of jurisdiction at Rs.2,50,000/ and for the purpose of Court Fee at Rs.130/ for relief of mandatory injunction and at Rs.130/ for the relief of permanent injunction. The Court fee has been paid accordingly.
12. The plaintiff in her plaint and the evidence has stated that she is the owner and in possession of the property bearing no. E660, CS No.290/2014 Smt. Surma Rani Vs. Smt. Swaran Kanta & Ors. Page 10 of 16 Dharam Pal Colony, Aali Vihar, New Delhi, admeasuring 60 sq. yards. In the year 2007, after death of her husband, the plaintiff had permitted the defendants to reside in some portion of the suit property. Admittedly, the defendant no.1 is the daughter of the plaintiff whereas defendant no.2 and 3 are the sons of defendant no.1. Witness PW1 has also stated that the defendants had promised to vacate the suit property after getting some suitable accommodation in the locality. However, they failed to vacate the property.
13. Admittedly, the plaintiff is also in possession of the property. She is not out of the possession of the property. The defendants are residing only in some portion of the property as licensee. The plaintiff being in possession of the suit property, and the defendants being mere licensee, the plaintiff is not required to value the suit, for the purpose of jurisdiction and Court Fee, as per market value of the suit property. She is also not required to pay advolerum Court Fee. In the circumstances as mentioned in the present suit, the suit for mandatory injunction is maintainable against the licensee, when the plaintiff is also in possession of the property and the defendants are in possession of only part of the entire property in the capacity of licensee. I get strength from the judgment of the Hon'ble Supreme Court of India in Sant Lal Jain vs Avtar Singh AIR 1985 SC 857. In the abovesaid case the Hon'ble Supreme Court of India, while replying upon various judgments has accepted the proposition CS No.290/2014 Smt. Surma Rani Vs. Smt. Swaran Kanta & Ors. Page 11 of 16 that where a licensor approaches the Court for an injunction within a reasonable time after the license is terminated, he is entitled to the injunction thereby directing the licensee to vacate the premises. On the other hand, if the licensor cause huge delay, the Court may refuse the discretion to grant an injunction on the ground that the licensor had not been diligent and in that case the licensor will have to bring a suit for possession which would be governed by Section 7 (v) of the Court Fees Act.
14. In the present case also, there is nothing on record tht the plaintiff has approached the Court after delay. Rather, she has shown that she has approached the Court immediately. Hence, the suit for mandatory injunction is maintainable and the plaintiff is not required to file a suit for possession by way of eviction and to value the suit at market price of the property. I also get strength from the judgment of the Hon'ble Bombay High Court in Conrad Dias of Bombay vs Joseph Dia of Bombay AIR 1995 Bom. 210. In the said case before the Bombay High Court the facts were that the father had filed the suit for injunction restraining his son from remaining in the suit premises. Due to strained relationship between them the father, the owner of the property did not want his son to continue in the suit property. Therefore, a suit for injunction was filed. The Hon'ble High Court had held that such a suit was maintainable. In para19 the Hon'ble High Court has held as under:
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"19. It was argued that the plaintiff should have filed a suit for possession and not for injunction. It is true that normally a person who is not in possession of the property should file a suit for possession. But in the present case the plaintiff nowhere says that he is not in possession of the suit premises. His case is that he and his son are in joint possession of the suit premises. I have already shown that even when he was a body the appellant son was residing with the father and continued to stay in the suit premises even after the plaintiff was transferred to Bangalore. It is also in evidence that plaintiff has been visiting Bombay and residing in the suit house every year. Since the relationship between the parties is one of father and son and they are residing together, it is a case of joint possession even though plaintiff has been subsequently transferred to Banglore.
The plaintiff has nowhere admitted that he has been dispossessed or that he has lost possession. Hence, in the circumstances since the plaintiff is held to be in joint possession along with the defendant and he has never lost possession, he cannot file a suit for possession. Therefore, the present frame of suit asking for an injunction against the defendant cannot be said to be bad. Since defendant has no legal right to continue to stay in the premises, plaintiff has advisedly asked the relief of injunction which is perfectly and legally permissible. Hence, I find no merit in the contention that the suit is not maintainable."
15. In the present case also the plaintiff has proved that she is in possession of the property and that the defendants have been residing in a portion of the property as permissive users. The present suit is therefore maintainable. The plaintiff is not required to pay ad CS No.290/2014 Smt. Surma Rani Vs. Smt. Swaran Kanta & Ors. Page 13 of 16 volerum Court Fee on the value of the property to seek an injunction against the defendants thereby directing them to vacate the suit property. Therefore, the plaintiff is not required to value the suit at market rate. Further, the plaintiff can value the suit as per her wish and she can pay fixed Court Fee thereon. Therefore, I am of the considered opinion that the plaintiff has valued the suit properly for the purpose of jurisdiction and Court Fee. The plaintiff has paid proper Court Fee on the valuation. The issues, are therefore, decided against the defendants and in favour of the plaintiff.
16. Issue no.1 & 2: The issues are taken together as they require common discussion. These issues read as under:
"1. Whether the plaintiff is entitled to decree of mandatory injunction as prayed for ? OPP"
"2. Whether the plaintiff is entitled to a decree of permanent injunction as prayed for ? OPP
17. The onus to prove these issues was on the plaintiff. The plaintiff has examined herself as PW1. In her affidavit of evidence, she has stated that she is the owner and in possession of the suit property. The defendants are licensee in the suit property. The defendants have neglected the plaintiff. They have been harassing the plaintiff.
18. The witness has been cross examined. Nothing contradictory has come in her cross examination. She has denied the suggestion that defendant no.1 had given Rs.1,00,000/ to her. She CS No.290/2014 Smt. Surma Rani Vs. Smt. Swaran Kanta & Ors. Page 14 of 16 has denied the suggestion that she had permitted the defendant no.1 to reside in the suit property for entire life after taking amount of Rs. 1,00,000/. She has denied the other suggestions also.
19. The defendants have failed to lead any evidence. The averments made by them in their WS have not been tested on the touch stone of the cross examination in evidence. Hence, they cannot be considered by the Court while deciding the issue.
20. Even otherwise, there is nothing on record to show that the defendants have got any right, title or interest in the suit property. It stands proved that they are mere licensee in the suit property which has also been terminated by the plaintiff, who is owner of the suit property. In these circumstances, I am of the considered opinion that the plaintiff is entitled to decree of mandatory injunction thereby restraining the defendants to vacate the suit property. The defendants have no right, title or interest in the suit property. Therefore, they cannot create any third party interest in the suit property. Both the issues are therefore decided in favour of the plaintiff and against the defendants.
21. Issue no.5: Relief.
In the light of discussion hereinabove, the suit of the plaintiff is decreed. The defendants are hereby directed to vacate the suit property i.e. portion of property bearing no. E660, Dharam Pal Colony, Aali Vihar, New Delhi, as shown in red colour in the site CS No.290/2014 Smt. Surma Rani Vs. Smt. Swaran Kanta & Ors. Page 15 of 16 plan Ex.PW1/B. Site plan Ex.PW1/B shall be part of the decree. The defendants are hereby restrained from creating any third party interest in the property bearing no. E660, Dharam Pal Colony, Aali Vihar, New Delhi. The plaintiff is also entitled to the cost of the suit.
22. Decree sheet be prepared accordingly.
Pronounced in the open Court (Dinesh Kumar)
on this 03rd day of September, 2015 Civil Judge, South East,
Saket Court, New Delhi.
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