Himachal Pradesh High Court
M/S Bhai Karam Singh & Co. & Ors vs Raminder Pal Singh & Ors on 8 September, 2016
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
C. Revision No. 110 of 2005.
Reserved on: 7.9.2016.
.
Decided on: 8.9.2016.
M/S Bhai Karam Singh & Co. & ors. ......Petitioners.
Versus
Raminder Pal Singh & ors. .......Respondents.
__________________________________________________________________________
of
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
Whether approved for reporting?
rt 1. Yes.
For the petitioners: Mr. R.K.Bawa, Sr. Advocate with Mr. Jeevesh
Sharma, Advocate.
For the respondents: Mr. Neeraj Gupta, Advocate.
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Justice Rajiv Sharma, J.
This petition is instituted against the judgment and decree dated 24.5.2005, rendered by the learned Civil Judge (Sr. Divn.), Shimla, H.P. in case No. 38/1 of 2004/2001.
2. "Key facts" necessary for the adjudication of this petition are that the petitioners-plaintiffs (hereinafter referred to as the plaintiffs) have filed a suit for restoration of possession under Section 6 of the Specific Reliefs Act, 1963, of rear cabin portion of Shop No. 25, measuring 60 sq. feet situated at Lakkar Bazar, Shimla, described as "ABCD" in the plan and also for permanent prohibitory injunction restraining the defendants from using any portion of the cabin by making additions and alterations 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:12:27 :::HCHP 2changing its nature. According to the averments made in the plaint, defendant No. 1 was co-owner of the premises known as Shop No. 25, .
Lakkar Bazar Shimla and defendant No. 1 constructed a cabin measuring approximately 7 ft. by 8 ft. and 6 inches in the back portion of the shop.
On 10.2.1998, the plaintiffs have entered into an agreement with defendant No. 1 whereby defendant No. 1 had agreed to let out the rear portion of the shop to the plaintiff-firm through its partners i.e. plaintiffs No. 2 & 3 on of monthly rent of Rs. 2000/-. The plaintiffs were enjoying the continuous and peaceful possession of the premises since February, 1998 and running rt a business of Media Marketing, Tour and Travels and Financing in the premises. Fax machine, computer, television, music system etc. were also installed in the premises. The plaintiffs instituted a civil suit for injunction bearing case No. 15/1 of 2001 on 19.1.2001 in the Court of learned Senior Sub Judge, Shimla along with an application under Order 39 Rules 1 & 2 CPC. The plaintiffs withdrew the suit on 20.1.2001. Plaintiff-Manvir Singh was out of station and when he visited Shop No. 25, he was shocked to note that defendant No. 1 had changed the locks of outer shutter on 24.2.2001 in the mid night. On enquiry from the employees employed by the plaintiff, it revealed that defendant No. 1 along with his wife and other unknown persons forcibly and unlawfully entered in the rear cabin portion of Shop No. 25 by opening the lock with duplicate key. The furniture lying in the Cabin was also unlawfully removed. FIR No. 51/2001 dated 2.3.2001 was registered in the Police Station. It is also averred that defendant No. 1 unlawfully entered into the lease agreement with defendants No. 2 & 3 in respect of entire Shop No. 25, including rear cabin ::: Downloaded on - 15/04/2017 21:12:27 :::HCHP 3 portion of Shop No. 25 after illegally dispossessing the plaintiffs from the premises. The defendants were thus liable to restore the possession of the .
rear cabin portion of Shop No. 25. The plaintiffs have also been deprived of the income and mesne profits of the business at the rate of Rs. 500/- per day w.e.f. 2.3.2001. The defendants were liable to be evicted from the rear cabin portion of Shop No. 25 and possession be restored to the plaintiffs.
3. The suit was contested by the defendants. Defendant No. 1 of filed separate written statement. Defendants No. 2 & 3 filed a joint written statement. Defendant No. 1 admitted himself to be co-owner of the suit rt property. It was claimed that the premises were let out for fixed period of 11 months to plaintiffs No. 2 & 3 as joint and composite tenancy. The defendant No. 1 received rent of the premises only for one month. He did not receive any rent after the initial payment of Rs. 2,000/-. In December, 2000, plaintiff No. 3, namely Charanjit Singh voluntarily surrendered the tenancy in favour of defendant No. 1 on his behalf and on behalf of plaintiff No. 2. The plaintiffs had not paid any rent and plaintiff No. 3 on his behalf and on behalf of remaining plaintiffs had agreed to leave possession in lieu of the arrears of rent. It is denied that defendant No. 1 had taken forcible possession of the suit property. Though, it is admitted that the premises were let out to defendants No. 2 & 3 as per agreement entered inter se defendant No. 1 and defendants No. 2 & 3. The case of defendant No. 1 was duly supported by defendants No. 2 & 3.
4. The plaintiffs filed separate replication to the written statements filed by the defendants. The issues were framed by the Civil ::: Downloaded on - 15/04/2017 21:12:27 :::HCHP 4 Judge, Shimla on 1.6.2002. He dismissed the suit on 24.5.2005. Hence, this petition.
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5. Mr. R.K.Bawa, Sr. Advocate has vehemently argued that his clients were in continuous and peaceful possession of the premises and were paying the rent regularly. The plaintiff No. 3 has never surrendered the tenancy rights in favour of defendant No. 1. The forcible possession of the premises could not be taken over by defendant No. 1. The Civil Suit of filed by plaintiff No. 1 was withdrawn only on the assurance of the defendants. The learned trial Court below has misread, misconstrued and rt mis-appreciated the statements of the witnesses. He lastly contended that his clients were thus entitled for restoration of the possession. On the other hand, Mr. Neeraj Gupta, Advocate has supported the judgment of the trial Court dated 24.5.2005.
6. I have heard the learned counsel for the parties and have also gone through the impugned judgment and records of the case carefully.
7. The rent agreement is dated 10.2.1998. It was executed between plaintiffs No. 2 & 3 in the individual capacity with defendant No.
1. The rent was to be paid on 10th of every month. According to the plaintiffs, the rent was regularly adjusted, thus no rent was paid by the plaintiffs. There was no clause for payment of advance rent as per agreement Ext. D-1. According to PW-5, Manvir Singh the rent was adjusted but he also claimed that the advance rent was paid. Defendant No. 1 has duly proved that plaintiffs were in arrears of rent. The rent was only paid for the month of February, 1998. According to the averments made in the plaint, the plaintiffs came to know from the employees that ::: Downloaded on - 15/04/2017 21:12:27 :::HCHP 5 defendant No. 1 has taken forcible possession of the shop. The plaintiffs had neither disclosed the names of the employees employed by the .
plaintiffs nor cited them as witnesses.
8. PW-5, Manvir Singh deposed that he came back from marriage on 2.3.2001. According to the averments made in FIR Ext. PW-2/A, Manvir Singh came to know about the forcible taking over the possession of the shop from his relatives. The relatives, as referred to in FIR Ext. PW-
of 2/A have not been examined by the plaintiffs. It has come on record that plaintiff No. 3, namely, Charanjit Singh has left the country. According to rt PW-6 ASI Sohan Lal, who investigated FIR Ext. PW-2/A, Charanjit Singh used to conduct business in the shop. According to PW-6 ASI Sohan Lal, neither fax machine nor computer etc. were kept in the suit property which were allegedly stated to have been removed by defendant No. 1. The defendants have led evidence that Charanjit Singh used to sit in the cabin and not PW-5, Manvir Singh. The plaintiffs have not led evidence that plaintiff No. 3 was doing any business other than operating from the Cabin.
9. In case the incident was witnessed by PW-7 Pritpal Singh, he should have also lodged the report with the police. The firm i.e. plaintiff No. 1 came into existence on 20.3.1999 and the rent agreement is dated 10.2.1998. PW-4 Paras Ram in his cross-examination has admitted that prior to 20.3.1999, there was no partnership firm. Charanjit Singh has not appeared as a witness. The incident has taken place on 24.2.2001 mid night. However, the FIR was registered after six days i.e. on 2.3.2001, though, the Police Station was in close proximity from the premises in question.
::: Downloaded on - 15/04/2017 21:12:27 :::HCHP 610. The learned trial Court has rightly come to the conclusion that it was not a case of forcible dispossession but plaintiff No. 3 had handed .
over the possession voluntarily to defendant No. 1 in lieu of arrears of rent.
11. Accordingly, there is no merit in this petition, the same is dismissed so also the pending application(s), if any.
September 08, 2016, ( Rajiv Sharma ),
(karan) Judge.
of
rt
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