Delhi District Court
Suit No. 197/06 Gurmeet Kaur vs . Brij Bhushan Sethi on 31 August, 2013
Suit no. 197/06 Gurmeet Kaur Vs. Brij Bhushan Sethi
IN THE COURT OF SH. VISHAL GOGNE,
ACJCCJARC(EAST), KARKARDOOMA COURTS, DELHI
Suit No. 197/06
Case ID No. 02402C0348762003
IN THE MATTER OF:
1. Smt. Gurmeet Kaur
W/o Shri Bhagat Singh
Through her General Attorney Shri Rattan Chand,
S/o Shri Ram Chand
R/o House no. C138, Nirman Vihar,
Delhi110092.
2. Shri Bhagwan Dass Nasa (now deceased and represented by his legal
heirs)
(a) Shri Sanjeev Nasa S/o Late Shri Bhagwan Dass Nasa
(b) Shri Lalit Kumar Nasa S/o Late Shri Bhagwan Dass Nasa
(c) Smt. Sudesh Mehta D/o Late Shri Bhagwan Dass Nasa
(d) Smt. Neelu Kaushik D/o Late Shri Bhagwan Dass Nasa
(e) Smt. Rupa Sharma D/o Late Shri Bhagwan Dass Nasa
All R/o C/o House no. C45, Preet Vihar, Delhi110092.
All the legal heirs are being represented by Shri Sanjeev Nasa
as their General Attorney.
3. Shri Jawahar Lal Nasa
S/o Late Shri Trilok Chand Nasa (now deceased and represented
Page No. 1/15
Suit no. 197/06 Gurmeet Kaur Vs. Brij Bhushan Sethi
through his legal heirs)
(a) Smt. Santosh Nasa W/o Late Sh. Jawahar Lal Nasa
(b) Sh. Sandeep Nasa S/o Late Sh. Jawahar Lal Nasa
(c) Smt. Anju Batra D/o Late Sh. Jawaher Lal Nasa W/o Sh. Arun
Batra
All R/o C/o House no. 2A/58, Geeta Colony,
Delhi10031.
All the legal heirs are being represented by Shri Sanjeev Nasa as their
General Attorney. ......Plaintiffs
Vs.
Shri Brij Bhushan Sethi
S/o Late Shri Saudagar Mal of Room
Private No. 3 in property no. 2,
Shiv Puri,
Delhi110051. ....Defendant
DATE OF INSTITUTION : 04.12.1981
DATE OF RESERVING THE ORDER : 31.07.2013
DATE OF DECISION : 31.08.2013
SUIT FOR PERMANENT INJUNCTION
JUDGMENT
1. Evidence has been recorded in common in the present suit alongwith Suit No. 199/06 vide order dated 18.07.09.
2. The present suit was filed by Ram Kishan in the year 1981 as the Page No. 2/15 Suit no. 197/06 Gurmeet Kaur Vs. Brij Bhushan Sethi attorney of Gurmeet Kaur viz the plaintiff. The defendant was represented to be a tenant of the plaintiff with respect to one room and the platform(also described as thara in the plaint) in front of the same bearing private number 3 in property no. 2, Shiv Puri, Delhi51 on monthly rent of Rs. 70/. Having been inducted as a tenant by Gurmeet Kaur and her father namely Nanak Chand vide rent note dated 30.04.1975, the defendant was purportedly threatening to make 'substantial and structural changes' in the tenanted shop by removing the tin sheet over the platform and instead raise a permanent structure in its place. The defendant was also attempting to construct a loft in the tenanted shop apart from having raised a wooden loft (described as parchatti/tand in the plaint) measuring 8x10 feet two years prior to the institution of the suit.
3. The above stated cause of action occasioned the plaintiff to seek two reliefs in the suit.
(a)A decree of mandatory injunction directing the defendant to remove the wooden loft from the tenanted shop.
(b)A permanent injunction restraining the defendant from making any addition/alteration in the tenanted shop.
4. Subsequently, plaintiffs no. 2 & 3 namely Bhagwan Dass Nasa and Jawahar Lal were permitted to be joined as parties by the Court vide order dated 24.09.83.
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5. The amended plaint filed by the newly added plaintiffs incorporated one additional averment viz the sale of the entire property in question in their favour by Gurmeet Kaur through Sale Deed dated 02.07.82. The remaining averments of the original plaint were repeated verbatim in the amended plaint.
6. The written statements filed by the defendant in response to the plaint and amended plaint denied the authority of Gurmeet Kaur to issue an attorney in favour of Ram Kishan as she purportedly did not have any right, title or interest in the property in question. The defendant did not deny being a tenant in the shop in question but claimed to have been in possession since 1967 though the rent note was executed later. He denied that Gurmeet Kaur was the daughter of Nanak Singh. It was denied that there had been any threat by the defendant to remove the tin sheet of the platform or to make any structural changes to the tenanted shop. The defendant averred that the wooden loft had been in existence in the shop since 1967. It was contended that the defendant did not have any knowledge of the sale in favour of Bhagwan Dass Nasa and Jawahar Lal.
7. The replication reiterated the contents of the plaint. 8 The following issues were framed on 04.12.84 by the then Ld. Presiding Officer.
1. Whether the suit is not signed, filed by duly instituted person? Page No. 4/15 Suit no. 197/06 Gurmeet Kaur Vs. Brij Bhushan Sethi
2. To what relief is plaintiff no. 2 & 3 entitled?
3. Relief.
It appears that issues were again inadvertently framed by the Ld. Predecessor Court 02.06.07. The same are not considered as the issues had already been framed on 24.09.83.
The findings on the issues are as under.
Issue No. 1
9. The Ld. Counsel for the plaintiff relied upon the deposition of the substantive witness viz PW2(Jawahar Lal Nasa).
(The only other witness for the plaintiff was the record clerk from the Hon'ble High Court(PW1) who produced the original record of certain documents exhibited by PW2).
10. The Counsel agitated that PW2 had proved the GPA dated 03.09.1981 (Ex. PW1/5) executed by Gurmeet Kaur in favour of Ram Kishan authorizing him, among other powers, to sign, verify and institute plaints in connection with any litigation of the former. It was argued that being the real brother of Ram Kishan, PW2 was competent to prove the said document.
11. In response, the Ld. Counsel for the defendant submitted that neither Gurmeet Kaur nor Ram Kishan were examined as witnesses so as to prove Ex. PW1/5. Further, as deposed by the defendant as DW1, the very Page No. 5/15 Suit no. 197/06 Gurmeet Kaur Vs. Brij Bhushan Sethi title of Gurmeet Kaur qua the property in question had been challenged by way of a separate suit.
12. Having considered the above submissions, the Court finds that PW1 could certainly not have proved Ex. PW1/5 as he only compared the copy with the original record in the file bearing RCSA No. 1519/05. Resultantly, the issue hinges on the deposition of PW2.
13. It is seen that the defendant did not suggest the falsity of Ex. PW1/5 to PW2 during crossexamination. No question was asked in this regard. It was not suggested to PW2 that Gurmeet Kaur had not executed a GPA qua the property in question in favour of Ram Kishan on 03.09.81. If a fact is not denied during crossexamination, it ought to be deemed to be admitted. The Court would note that the legal capacity of Gurmeet Kaur to execute such a GPA is distinct from the question whether such a GPA was executed or not. Issue no. 1 relates to the later aspect and not the first. Indeed, the title of the parties was neither framed as an issue nor found to be relevant as the written statement of the defendant admits his status as a tenant in the shop in question.
14. The crossexamination of PW2 would further reveal that it infact proceeded on the assumption that Ram Kishan was the attorney of Gurmeet Kaur. PW2 admitted, on being asked by the Counsel for the defendant, that Ram Kishan was his real brother. The defendant also suggested to PW2 that Page No. 6/15 Suit no. 197/06 Gurmeet Kaur Vs. Brij Bhushan Sethi Gurmeet Kaur had not directly executed any document in favour of him and his brother Bhagwan Dass. PW2 admitted this suggestion and volunteered that Gurmeet Kaur had executed an agreement on 03.09.1981 in favour of him and his brother and that the sale deed had been executed through attorney of Gurmeet Kaur namely Ram Kishan. At this stage, the defendant did not suggest to PW2 that Ram Kishan was not the attorney of Gurmeet Kaur. Consequently, the Court would conclude that although the defendant challenged the authority of Gurmeet Kaur to transfer the property to plaintiffs no. 2 & 3, he admitted that Ram Kishan was the attorney of Gurmeet Kaur.
15. In this view of the matter, probabilities favour the conclusion that the present suit was duly instituted by Ram Kishan as the holder of a General Power of Attorney dated 03.09.81 from Gurmeet Kaur i.e. Ex. PW1/5.
16. Issue no. 1 is decided in favour of plaintiff and against the defendant.
Issue No. 2
17. The Ld. Counsel for the plaintiff contended that PW2 had identified the tenanted shop through site plan Ex. PW1/1 and that the tenancy was not denied by the defendant. It was submitted that PW2 had deposed in specific terms regarding the threat by the defendant to undertake alteration in the tenanted shop by removing the tin sheet over the platform. Also, that Page No. 7/15 Suit no. 197/06 Gurmeet Kaur Vs. Brij Bhushan Sethi PW2 had provided the dimension of the wooden loft raised by the defendant in the shop. It was argued that the defendant, as a tenant, was not entitled to make any such change in the shop and was thus liable to be directed by an injunction to remove the loft and refrain from making any further alteration in the shop. The counsel also drew attention to the cross examination of the defendant (DW1) wherein he admitted that he had raised shutters on the platform in the front of the shop.
18. These submissions were countered by the Ld. Counsel for the respondent on the submission that PW2 had deposed on hear say information and did not possess any personal knowledge of the dimension or state of construction at the tenanted shop. Reference was made to the cross examination of the PW2 where he admitted that he did not know who had prepared the site plan Ex. PW1/1 or whether the site had been inspected before preparing the same. The counsel also pleaded that PW2 possessed no locus to seek relief as, by his own admission during crossexamination, he had transferred his share in the property in question in favour of his brother Bhagwan Dass in 1994 for consideration of Rs. 1,25,000/.
19. The Ld. Counsel next referred to the deposition of DW1 who asserted that he had not made any alteration in the shop and that the wooden loft was in existence since 1967.
20. The court has considered the evidence at hand and the competing Page No. 8/15 Suit no. 197/06 Gurmeet Kaur Vs. Brij Bhushan Sethi submissions of the counsels.
21. The grant of an injunction is a discretionary and equitable relief. The party seeking relief must lead cogent evidence to prove that its enjoyment of a particular property is invaded or interfered with in a manner that a direction is required for protecting the right.
22. In the present facts, it is noticeable at the outset that Gurmeet Kaur (plaintiff no.1), being the original plaintiff and purported landlord of the defendant, was the principal aggrieved party. She, however, did not step into the witness box. It thus did not emanate from the mouth of Gurmeet Kaur that she had learnt of any credible threat or attempt by the defendant to remove the tin sheet over the platform in front of the tenanted shop. Neither the date nor the month or year when the cause of action arose were mentioned in the plaint. The plaint made a generalised averment that the defendant was threatening to make structural changes by removing the tin sheet and by creating holes in the wall of the shop. Not only were these allegations required to be dated for reference but the deposition of Gurmeet Kaur on oath was also a necessity for proving the cause of action.
23. The plaint instead came to be filed by an attorney of Gurmeet Kaur viz Ram Kishan. Now, an attorney can perform the range of acts contemplated by the instrument of attorney but not depose on behalf of the principal. Ram Kishan could not have deposed about the facts within the Page No. 9/15 Suit no. 197/06 Gurmeet Kaur Vs. Brij Bhushan Sethi knowledge of Gurmeet Kaur. In any event, Ram Kishan did not appear as a witness either.
24. The combined effect of these omissions is that the person initiating the suit viz plaintiff no. 1 did not depose whereas the attorney who filed the suit did not clarify whether he possessed any knowledge regarding the stated cause of action.
25. This brings the attention of the court to the plaintiff who did depose i.e. plaintiff no. 3.
26. A perusal of the affidavit in evidence tendered by PW2 reveals the same to be no less than a copy of the plaint filed by the original plaintiff viz Gurmeet Kaur. PW2 mechanically recounted the same allegations as made by Gurmeet Kaur inter alia that the defendant was threatening to make structural changes in the tenanted shop by removing the tin sheet and creating holes in the wall of the shop. It is to be borne in my mind that plaintiff no. 3 was a subsequent purchaser of the property in question. Thus, as a logical corollary, his knowledge could not have been in the same terms and qua the same time frame as Gurmeet Kaur. Yet, like the original plaint filed on behalf of Gurmeet Kaur by Ram Kishan on 03.12.1981, plaintiff no. 3 stated in the amened plaint on 03.01.1983 that the defendant had raised a loft measuring 8 X 10 feet in the tenanted shop two years prior to the institution of the suit. PW2 then repeated this assertion in his affidavit dated Page No. 10/15 Suit no. 197/06 Gurmeet Kaur Vs. Brij Bhushan Sethi 30.07.2007. Undoubtedly, PW2 pursued the present suit based on averments already made by Gurmeet Kaur but regarding which he did not possess any personal knowledge.
27. This conclusion is further strengthened by the crossexamination of PW2. He stated with reference to the site plan Ex. PW1/1 that the same was prepared at the instance of his brother Bhagwan Dass but he did not know who had prepared it and whether the site have been inspected. PW2 acknowledged that he did not have any knowledge about the site plan.
28. PW2 further conceded that he was not aware of the terms and conditions upon which the tenancy was created by Nanak Singh and Gurmeet Kaur in favour of the defendant. Though PW2 asserted that the defendant had raised the platform measuring 10 X 8 feet in front of the shop, he also admitted that he had not measured the same.
29. The court would conclude that PW2, in all probability, was not aware of the state of construction at the tenanted shop when the suit was first filed by Gurmeet Kaur.
30. The affidavit in evidence filed by PW2 was further exposed as a contrived account when he was cross examined regarding the purported threats made by the defendant with respect to structural changes in the tenanted shop. PW2 stated that the defendant had extended these threats after the execution of the sale deed though he did not know the exact date, month Page No. 11/15 Suit no. 197/06 Gurmeet Kaur Vs. Brij Bhushan Sethi and year. This explanation was clearly an improvement over the amended plaint filed by PW2 and his affidavit in evidence which did not mention that such threats were made by the defendant after the execution of sale deed Ex. PW2/6 dated 02.07.1982 by Gurmeet Kaur (through Ram Kishan) in favour of PW2 and his brother Bhagwan Dass. PW2 was evidently attempting to cover up the lacuna of having repeated the averments of Gurmeet Kaur in the amended plaint. There is no doubt that PW2 concocted the story of threats by the defendant after the sale deed was executed by Gurmeet Kaur.
31. Any remaining creditability of PW2 was diminished by his admission during cross examination that he had infact transferred his share in the property in question in favour of his brother Bhagwan Dass in 1994 for consideration of Rs. 1,25,000/. Resultantly, PW2 ceased to have any locus standi to seek the relief of injunction as plaintiff no. 3 after relinquishing his share in 1994. As noted earlier, the grant of injunction is a discretionary and equitable relief. Such relief cannot be granted to protect rights which have already been relinquished.
32. The only plaintiff who could have sought relief in his capacity as the landlord viz plaintiff no. 2 namely Bhagwan Dass was not examined as a witness.
33. The scenario before the court is that the original aggrieved plaintiff (Gurmeet Kaur) did not depose, her attorney could not have deposed Page No. 12/15 Suit no. 197/06 Gurmeet Kaur Vs. Brij Bhushan Sethi on her behalf and did not depose at all, plaintiff no. 2 did not depose either and plaintiff no. 3 deposed without personal knowledge and personal interest in the tenanted shop.
34. The onus to prove a particular fact being on the party who asserts the existence of the fact, the suit must fail as the plaintiffs, tasked with the burden of proving threats by the defendant to raise construction in the tenanted shop, failed to prove that such threats had been extended.
35. As to the existence of the wooden loft in the tenanted shop, admitted by the defendant, the evidence led by PW2 does not provide any basis to conclude that this loft was raised by the defendant or that the same was unlawful. During cross examination, PW2 admitted that the loft was constructed prior to 1980. It is to be observed that PW2 claims to have become the owner only on 02.07.1982. Resultantly, he could not have been privy to the construction prior to 02.07.1982 or prior to 1980. Infact, PW2 admitted that one Banwari Lal had earlier been the tenant in the shop in question. The court would not rule out the suggestion of the defendant to PW2 that the loft was in existence since the tenancy of Banwari Lal.
36. Also, as noted in the earlier part of judgment, PW2 conceded that he was not aware of the terms and conditions of the tenancy between Nanak Singh, Gurmeet Kaur and the defendant. PW2 could not have been aware about any understanding between the original landlords and the defendant Page No. 13/15 Suit no. 197/06 Gurmeet Kaur Vs. Brij Bhushan Sethi regarding existing construction, including the loft.
37. The same conclusion would operate in context of the admission of the defendant (DW1) during crossexamination that shutters had been raised by him on the platform in 1980. DW1 volunteered that the shutters were erected in 1980 with the permission of Nanak Singh. This assertion was not denied by way of suggestion by the plaintiff. The reason is apparent. In 1980, PW2 and his brother had no concern with the tenanted shop as they claimed to have purchased the same only on 02.07.1982. Besides, the amended plaint filed by PW2 and his brother in suit no. 197/06 neither specified any effort to raise a shutter or any existing shutter nor prayed for removal of such shutters. Even the affidavit of PW2 did not make any assertion with respect to shutters affixed by the defendant.
38. All disputed facts in a civil trial are required to be decided on the preponderance of probabilities as absolute proof is almost never forthcoming. In the present trial, the court concludes on the scale of probabilities that the plaintiffs have failed to lead believable evidence either of unauthorized construction or threat to carry out wrongful construction by the defendant at the tenanted shop.
39. Issue no. 2 is decided against the plaintiffs.
Relief
40. In view of the findings on issue no. 2, the plaintiffs are not Page No. 14/15 Suit no. 197/06 Gurmeet Kaur Vs. Brij Bhushan Sethi entitled to relief as prayed for.
41. The suit is dismissed. Let decree sheet be drawn up accordingly.
42. There shall be no order as to costs.
43. File be consigned to Record Room.
Announced in open Court.
Delhi Dated the 31.08.2013 This Judgment contains 15 pages and each paper is signed by me.
VISHAL GOGNE ACJCCJARC(EAST) KKD Courts/Delhi.
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