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[Cites 2, Cited by 0]

Delhi District Court

Sh. Satish Kapur vs Delhi Photo Company on 19 February, 2011

                                                          Page 1

   IN THE COURT OF MS. VEENA RANI :  COMMERCIAL CIVIL JUDGE­CUM­

ADMINISTRATIVE CIVIL JUDGE­CUM­ ADDITIONAL RENT CONTROLER: NEW 

                                     DELHI DISTRICT : NEW DELHI

S No:17/10


Sh. Satish Kapur                                              .....Plaintiff
                                  Vs.
Delhi Photo Company                                           .....defendants 


ORDER

1. This is an order on the application of the plaintiff filed u/o 39 rule 1 & 2 CPC by way of which plaintiff seeks to restrain the defendant no:1, his employee, persons, men etc from making any additions, alteration, digging the ground floor, making any basement etc, and removing any pillars from the suit property no:78, Ground Floor, Janpath, Connaught Place, New Delhi­62 as shown in red colour in the site plan and further restraining the defendant no:1s etc from parting with possession, subletting, assigning and or handing over the possession to any third party of the suit property mentioned above except the plaintiff or any other such order as this court may deem fit and proper in the facts and circumstances of the case in favour of the plaintiff and against the defendant no:1. Briefly stated the facts for the disposal of this application are as under:­

2. The case of the plaintiff, as stated in the plaint is that , plaintiff Sh. Satish Kapur is the owner and landlord of property bearing no:78, Ground Floor, Janpath, Connaught Place, New Delhi­62 and the defendant no:1 is the tenant in the suit property at the monthly rent of Rs. 247.50/­ as shown in red colour in the site plan. It is stated that eviction petition is already pending against the defendant no:1 in the court Ld. ARC, New Delhi.

3. It is stated by the plaintiff that on 20­2­2010 when he visited the suit property and he Sh. Satish Kapur V. Delhi Photo Company & others , S No:17/10 Page 2 found that defendant no:1 is digging the ground floor and heaps of Malva were lying there and on enquiry he found that defendant no:1 was going to construct the basement by removing the cemented floor. It is further stated that defendant no:1 has also removed the center load bearing pillars and load bearing walls. It is stated that due to removal of aforementioned pillars and load bearing walls the entire building , which is of three stories , may collapse at any moment due to such addition and alteration. Plaintiff further stated that defendant no:1 has also removed the window and doors and thickness of walls. It is stated that when plaintiff confronted with the people working at site but they informed him that they are working as per the contract and directions of the person who has given the said contract to them. Plaintiff stated that he tried to stop the work with the help of local police but the police did not take any action, hence the present suit.

4. It is stated by the plaintiff that he confronted the defendant no:1 on 21­2­2010 and requested him to stop to make any basement or further addition and alteration of any nature in the suit property but defendant no:1 flatly refused to stop the work and threatened the plaintiff to do whatever he likes.

5. It is further stated that plaintiff came to know from the market that defendant no:1 is going to sub let /handover the possession of the suit property to some one who has given huge amount to the defendant no:1 for starting a restaurant in the suit property.

6. It is stated by the plaintiff that if the defendant no:1 succeed in his motive the entire building will collapse and plaintiff will suffer an irreparable loss which can not be conpensated in terms of money.

7. The cause of action stated to have accrued on 20­2­2010 when the plaintiff went to the suit property and found that defendant no:1 was digging the floor and going to make the basement and have also removed the load bearing pillars and further cause of action continues on 21­2­2010 when plaintiff again went at the site and confronted with defendant no:1 who has Sh. Satish Kapur V. Delhi Photo Company & others , S No:17/10 Page 3 made threats to do whatever he likes. It is stated that cause of action continues till date as threat continues.

8. defendant no:1 filed written statement in which it is stated by him that he is tenant in the suit property since 1938 and the plaintiff is a stranger to him and in the earlier litigation the locus of the plaintiff has already been challenged by him. It is stated by defendant no:1 that plaintiff is neither the owner nor the landlord of the suit premises. defendant no:1 stated that site plan filed by the plaintiff is false and wrong and the plaintiff has deliberately not disclosed the exact site plan of the tenanted premises. It is stated by defendant no:1 that he has been regularly paying the rent and he paid rent till March, 2010 by way of cheque in favour of landlord Sh. Prem Nath, Sh. Gopal Krishan, Sh. Barkat Ram and Sh. Lakhpat Rai. It is further stated that property was taken on rent since 1938 from Hazi Mohd. And one Yakub, the then landlord and it was only after partition in the year 1947, the then landlord/owners shifted to Pakistan and suit property was declared Evacuee property and thus the defendant no:1 started paying the rent to Government of India and he continued to pay the rent to Government of India till the time the property was auctioned and transferred in the name of Sh. Prem Nath etc mentioned above. It is stated by defendant no:1 that neither the plaintiff is the owner of the suit property not he is a tenant under him and there is no relationship of landlord and tenant between the plaintiff and the defendant no:1.

It is stated by the defendant no:1 that he is only renovating the hop without carrying out any structural changes and the said renovation is permitted in law and no injunction can be granted in this regard. It is further stated that no basement is being build as has been alleged by the plaintiff and only the flooring is being redone and the old unworkable pipes are being changed. defendant no:1 further stated that he has not subletted the premises in question at all and he is only renovating the premises for his business for running a gallery with a cafe and he has relevant license issued by the appropriate authority and the copy of the same is filed along Sh. Satish Kapur V. Delhi Photo Company & others , S No:17/10 Page 4 with the written statement. It is stated by the defendant no:1s that suit of the plaintiff is without any cause of action , hence liable to be dismissed with costs.

9. In his replication the plaintiff has reiterated what has been stated by him in his plaint and denied the allegations made by the defendant no:1 against him. It is stated by the plaintiff that he has purchased the suit property in auction and for communication 4­5 names were given for correspondence. Plaintiff denied property was named in the name of Prem nath, Gopal Krishan, barkat Ram and Lakhpatrai only. It is stated that plaintiff is also owner of the suit property and all the above named four persons have already expired. Plaintiff denied that defendant no:1 is paying rent regularly against the suit property. Plaintiff further denied that there is no relationship of landlord and tenant between the him and defendant no:1.

10. I have heard the arguments of ld. Counsel for the parties and perused the record carefully.

11. The case of the plaintiff herein is that he is the owner and landlord of the property bearing no: 78, Ground Floor, Janpath, Connaught Place, New Delhi­62 and the defendant no:1 is the tenant in the property in question at the monthly rent of Rs.247.50/­. It is contended by the plaintiff that on 20­2­2010 when he visited the suit property, there he found defendant no:1 was digging the ground floor and on enquiry it came to his knowledge that defendant no:1 was going to construct the basement by removing the cemented floor. The plaintiff however requested the defendant no:1 to stop the construction but defendant no:1 flatly refused to do so.

On the other hand it is the defense of the defendant no:1 that the plaintiff is not the owner/landlord of the suit property and no document as such placed on record by the plaintiff to show his title over the suit property. The defendant no:1 also submitted that suit property being the evacuee property, earlier defendant no:1 used to pay rent to the Governme tof India and later on after the auction of the suit property, the defendant no:1 started paying rent to Sh. Prem Nath, Sh. Gopal Krishan, Sh. Barkat Ram and Sh. Lakhpat Rai. It is also the defense of Sh. Satish Kapur V. Delhi Photo Company & others , S No:17/10 Page 5 the defendant no:1 that he is not carrying out any construction or any structural changes in the suit property but only carrying out the renovation work.

Defendant no:2/NDMC, however, did not appear and proceeded ex­parte. Prima facie on the basis of following documents defendant no:1 Delhi Photo Company is tenant in 'possession' of the suit property since 1938:­

(i) Rent receipt dated 20­3­1942, March, 1944 issued by the then owners Mohd.

Ishar, Mohd. Yakoob, Mohd. Amid, Mohd. Abdulla ,rent receipt for September, 1941.

(ii) Rent receipt dated 1­3­1960 issued on behalf of Prem nath, Gopal Krishan and Lakhpat Rai, auctioned purchasing of evacuee property. Also rent receipt dated 25­4­1963 and 7­5­1966.

(iii) Rent receipts by Prem Nath, Gopal Krishan, Barkat Rai and Lakhpat Rai by cheque dated 30­10­1985.

(iv) Rent receipts for the period 1­4­1980 to 31­7­1980 by cheque received by Prem Nath, Gopal Krishan, Barkat Rai and Lakhpat Rai

(v) ICICI Bank statement of defendant no:1 as on 31­8­2005 showing cheque in favour of Prem Nath Kapoor landlord , further of dated 1­2­1007 to 28­2­2007 and 1­4­2008 to 1­5­2008.

(vi) Letter dated 12­10­1994 by defendant Delhi Photo Company to Custodian of Evacuee Property, New Delhi informing about the bad condition of suit property and requiring urgent and immediate repair.

(vii) Letter dated 10­3­151 by Government of India, Ministry of Rehabilitation , Office of the Custodian of Evacuee Property to M/s Delhi Photo Company.

(viii) Rent receipts dated 29­5­1953 issued by Ministry of Rehabilitation, office of Custodian of Evacuee property to M/s Delhi Photocopy Company and also of Sh. Satish Kapur V. Delhi Photo Company & others , S No:17/10 Page 6 dated 29­4­1952.

(ix) Letter dated 11­11­2009 by defendant's counsel to Mrs. Shashi Gandhi D/o late Barkhat Rai (co­owner of suit property) seeking consent to carry out repair of suit property sent through registered post ( Postal receipt attached).

(x) Copy of approval of Estimate of Expenditure to be incurred in repair given by said Smt. Shashi Gandhi.

(xi) Letter dt. 1­12­2009 from said Mrs. Shashi Gandhi to defendant giving no objection for repair of suit property attaching therewith said approval estimate.

(xii) Letter dt.28­4­2010 written by defendant to said Smt. Shashi Gandhi ownership of suit property being claimed by Satish Kapoor plaintiff. ( It is pertinent to mention here that above said letter dated 28­4­2010 was written during the pendency of the present suit).

12. Prima facie on the basis of the following documents, the plaintiff is the owner/landlord of the suit property:

(I) Sale certificate issued on 21­1­1956 by the Office of Regional Settlement ( M­ Wing), Jam Nagar House, New Delhi in favour of Smt. Nirmal Kapoor W/o Sh.

Premnath, Smt. Chand Rani M/o Prem Nath, Smt. Anand Kumari Kapoor W/o Sh. Gopal Krishan Kapoor, Sh. Inder Mohan, Sh. Chander Mohan, Smt. Shashi Gandhi, Smt. Prakash Rani, Sh. Lakhpat Rai S/o Sh. Devi Das Kapoor. (II) Release deed ( for consideration) registered dated September, 1988, registered in May, 1995 in favour of plaintiff by some of co­sharers Gautam Roy Kapur, Smt. Nirmal kapoor and Smt. Anand Kumari Kapur.

(III) Copy of G.P.A Dt. 11­10­1988 executved by co­owner Smt. Nirmal Kapur, Smt. Anand Kumari in favour of petitioner Satish Roy Kapur regarding the suit property as well as other properties.

Sh. Satish Kapur V. Delhi Photo Company & others , S No:17/10 Page 7 (IV) Copy of another release deed dated 15­4­1986 by way of family settlement executed between petitioner Satish Kapur son of Sh. Rajpal Roy Kapoor, grand son of late Sh. Devi Dass Kapoor, Sh. Lakhpat Roy Kapoor son of late Sh. Devi Dass Kapoor, Smt. Satyawati D/o Late Sh. Devi Dass Kapoor, Smt. Gunwati Chopra D/o late Sh. Devi Dass kapoor, Smt. Pawan Khanna daughter of late Sh. Devi Dass Kapoor. This release deed executed in favour of petitioner Satish Kapoor which is a registered one.

(V) Special Power of Attorney dated 15­4­1988 attested by Notary on 15­4­88 related to suit property and other property by all the co­sharers in favour of Satish Kapoor authorizing him to get registered the release deed. (VI) In petition u/s 482 CPC Criminal Miscellaneous (M) 36 of 1983 which was decided on 17­3­1989 , titled as Satish Sadan Vs. Prithvi Raj & Anothers. In that petition petitioner Satish Kapur is admittedly one of the landlord with regard to the subject matter i.e shop/ garrage no:78(5), Tolstoy Lane, Connaught Place, New Delhi.

13. However, these aforementioned documents were not filed by the petitioner at the time of filing of the suit and same were filed only in the month of April, 2010.

14. The present suit for permanent injunction was filed on 22­2­2010 by the petitioner. The defendant no:2 NDMC already proceeded ex­parte. The application of appointment of Local Commission was dismissed. The defendant no:2 NDMC did not participate in the present proceedings, however, it was the legal duty of the NDMC to stop the alleged construction if any. The non participation of NDMC gives a prima facie presumption that there was no such alleged illegal construction going on. Any how it is a prima facie view of present petition at this stage.

15. The defendant no:1 herein stated that he was doing only necessary repairs and renovation etc and no major and structural alteration/changes were being done. Even if Sh. Satish Kapur V. Delhi Photo Company & others , S No:17/10 Page 8 defendant no:1 has done any such construction against law and beyond the permission limit , he shall be liable for legal consequences.

16. Further prima facie there are reason and documents to believe and establish that petition is the owner/landlord of the suit property as discussed above so he has the legal right to get the defendant no:1 restrained from subletting and parting with the possession of the suit property bearing No:78, Ground Floor, Janpath, Connaught Place, New Delhi­62. Hence defendant no:1 is hereby restrained from subletting, parting with the possession and from creating any third party interest with regard to the property bearing No:78, Ground Floor, Janpath, Connaught Place, New Delhi­62 till the final disposal of the present suit.

17. Application of the petitioner u/o 39 rule 1 & 2 CPC is disposed off in above mentioned terms.

18. Nothing of what has been stated herein above shall have any bearing on the merits of the present case.

19. Put up for documents , A/D and framing of issues on 04­05­2011. Announced in the open court on this 19th day of February, 2011. (VEENA RANI) ARC/ACJ/CCJ/New Delhi Sh. Satish Kapur V. Delhi Photo Company & others , S No:17/10