Delhi District Court
M/S. Fanda Engineering Works vs Lahore TypeWriter Company on 20 January, 2014
:1: CS No.: 402/13/90
IN THE COURT OF SH. KISHOR KUMAR : CIVIL JUDGE12 (CENTRAL),
TIS HAZARI COURTS, DELHI
SUIT NO : 402/13/90
In the matter of :
M/s. Fanda Engineering Works,
A Partnership Firm registered under the
Indian Partnership Act, having its
registered office at 5, Ring Road Market,
Sarojini Nagar, New Delhi and the
factory premises at B55, Mayapuri,
PhaseI, New Delhi
Through its registered partner
Sh. Tulsi Ram Fanda.
......Plaintiff
VERSUS
1. Lahore Typewriter Company,
through its partner Miss Neelam Seth,
B55, Mayapuri, PhaseI,New Delhi.
2. Shri Rajan Seth,
Partner of M/s. Lahore Typewriter Company,
B55, Mayapuri Industrial Area,
PhaseI, Mayapuri, New Delhi.
3. Sh. K. Sehgal S/o Sh. Som Nath Sehgal,
B55, Mayapuri Industrial Area,
PhaseI, New Delhi. .....Defendants
P.No. 1 Of 15
:2: CS No.: 402/13/90
Date of institution: 13.08.1990
Date of decision: 20.01.2014
SUIT FOR PERMANENT INJUNCTION
JUDGMENT:
1. Plaintiff as partnership firm has filed the present suit for permanent injunction to restrain the defendant from making any structural changes in the entry gate measuring 11.5 feet shown as X to X1 in the site plan and also from interfering in any manner in the entry of plaintiff's vehicles carrying goods and his private vehicles to approach his industrial shed i.e. the tenanted premises shown in the red colour in the site plan of premises no. B55, Mayapuri, PhaseI, New Delhi.
2. The facts necessary are that the plaintiff had taken an industrial shed on rent from defendant no. 1 w.e.f. 01.07.1976 . The tenancy was originally created by Sh. Charanjit Lal Seth on a monthly rent of Rs. 670/ comprising of about 1000 sq. feet area in respect of P.No. 2 Of 15 :3: CS No.: 402/13/90 industrial premises bearing no. B55, Mayapuri, PhaseI, New Delhi. At the time of letting, the amenities like common passage, common latrine and bathroom, supply of industrial power through a submeter from industrial electricity meter no. 910013009001 were enjoined to the tenanted premises. The tenancy was for running an industry where the vehicles were supposed to let in carrying goods belonging to the plaintiff to enter from the gate measuring 11.5 feet marked as X to X1 shown in the site plan. At the time of letting, no written agreement was executed between plaintiff and Charanjit Lal Seth. A security amount of Rs. 6000/ was required by late Charanjit Lal Seth which was paid by the plaintiff vide receipts nos. 9723, 9732 and 9738 . It is further stated by the plaintiff that they had insisted for execution of written agreement but late Sh. Charanjit Lal Seth had replied that since the property in question was alloted to his firm by the DDA and the prior condition of the allotment was that they could not transfer, alienate or part with the possession of the portion of the premises, therefore, he was unable to execute any written agreement. Later on, in the year 1981, late Sh. Charanjit Lal Seth P.No. 3 Of 15 :4: CS No.: 402/13/90 represented that with a view to secure him from any punitive action of the DDA, he wanted to enter with some document with the plaintiff and, accordingly, a licence deed dated 29.07.1981with the plaintiff was executed but the status of the plaintiff was always that of a tenant. Later on, again in the month of June, 1982, late Sh. Charanjit Lal approached the plaintiff and represented that earlier deed of licence had been lodged and requested the plaintiff to sign fresh deed of licence with same conditions. Plaintiff in good faith signed the same. Plaintiff claims himself to be the statutory tenant in the premises since 1976 and has been enjoying the same with other amenities exclusively and without any interruption. After death of Sh. Charanjit Lal Seth, his legal heir i.e.Ms. Neelam Seth who is the partner of defendant no. 1 and Sh. Rajan Seth, adopted son of Sh. Charanjit Lal Seth, started creating hindrance in the smooth functioning of the business of plaintiff by threatening to evict the plaintiff from the suit premises and by interrupting the supply of power, use of common passage, latrine and bathroom. Circumstances compelled the plaintiff to file a suit on dated 05.09.1988 restraining the P.No. 4 Of 15 :5: CS No.: 402/13/90 defendants from forcibly evicting the plaintiff from the tenanted premises and also to not interfere in the peaceful use and enjoyment of the amenities enjoined to the tenanted premises. Now the defendants have started stopping the loaded vehicles of the plaintiff to enter the common passage to approach the tenanted premises. When protested by the plaintiff and his father, defendants are using abusive language and are stopping plaintiff's vehicles. On 05.08.1990, defendant again attempted to stop the loaded tempo no. DBL3038. The defendants are not stopping their illegal activities. Hence, the present suit.
3. Defendant no. 1 and 3 filed their joint written statement submitting that plaintiff had been permitted as a licencee by late Sh. Charanjit Lal Seth to use temporary shed located in the rear courtyard at the end of East side private lane of the factory building across the boiler, installation of defendant no. 1 on a monthly licence fee of Rs. 670/. The plaintiff afterwards executed licence deed dated 29.07.1981 for 11 months and thereafter on the expiry of said licence deed another licence deed dated 28.06.1982 was executed by the plaintiff for another period of P.No. 5 Of 15 :6: CS No.: 402/13/90 11 months from 01.07.1982. The use of the said temporary shed has been permitted to the plaintiff to start and carry on plaintiff's industrial business in the said portion of the factory premises. The overall control and possession of the licenced shed is under the occupation of defendant no. 1 and the main gate of factory building is in the exclusive occupation of defendant no. 1. Plaintiff has got no concern of any kind with the passage, latrine, bathroom or any other amenities as alleged in the suit. Present suit is barred in view of earlier similar suit filed by the plaintiff. Vide notice dated 16.12.1988, the licence of the plaintiff in respect of the shed in question has been terminated from the end of 31.01.1989 but the plaintiff as counter blast to the said notice of termination of licence, has filed the present suit. Present suit is also barred under section 50 of Delhi Rent Control Act. Defendants also submitted that without prejudice to their rights and contentions, defendant no. 1 at present has no intention to make any structural change in the entry gate. Rest of the case of the plaintiff has been denied being wrong and incorrect.
P.No. 6 Of 15
:7: CS No.: 402/13/90
4. Plaintiff has filed replication reiterating and reaffirming his case as contained in the plaint and has denied the averments of the defendants in the written statement.
5. On the basis of pleadings of the parties, following issues have been framed for trial:
1. Whether the plaintiff has no cause of action against the defendant? OPD
2. Whether the plaintiff is entitled to the relief of injunction as prayed? OPP.
3. Relief.
6. In order to prove its case, plaintiff company examined PW1 Tulshi Ram Fanda, one of the partner, who tendered his affidavit in evidence Ex. PW1/1 bearing his signatures at point A and B. PW1 relied upon site plan Mark A, photocopy of receipt dated 01.07.1996 Ex. PW1/2, photocopy of receipt dated 02.06.1996 Ex. PW1/3, photocopy of receipts dated 19.07.1976 Ex. PW1/4, copy of lease deed dated 29.07.1981 MarkB.
7. On the other hand, Ms. Neelam Seth as partner of defendant P.No. 7 Of 15 :8: CS No.: 402/13/90 no. 1 examined herself as DW1, tendered her affidavit in evidence as Ex. DX, bearing her signatures at point A and B. It is very much pertinent to mention herein that DW1 Ms. Neelam Seth has filed her affidavit in evidence Ex. DX in this case and her cross examination conducted in connected case no. 404/13/91 has been adopted by learned counsel for the plaintiff in the present case. Copy of cross examination of DW1 has been kept on this file vide order dated 09.01.2014 for convenience sake.
8. I have heard learned counsel for plaintiff, learned counsel for defendant and have carefully gone through the record.
9. It is argued by learned counsel for plaintiff that defendants by way of their own admissions have admitted that plaintiff was tenant in the tenanted premises since 1976 and it was only in the year 1981 that on the request of father of defendant no. 1 that a licence deed was executed in good faith. The plaintiff was in exclusive possession, use and occupation of the allied amenities like water, electricity, common passage and the entrance. The defendants after death of Sh. Charanjit Lal Seth with a view to dispossess the plaintiff started ploying all sorts of P.No. 8 Of 15 :9: CS No.: 402/13/90 tactics to harass and compel the plaintiff to vacate the suit premises.
10. On the other hand, it is argued by learned counsel for the defendant that at no point of time plaintiff was tenant in the suit premises and all the control supervision and actual possession was that of the defendant only, and the status of plaintiff was that of a licencee only to use the suit premises in the manner and upto the limit as pleased by the defendants. The present suit has been filed by the plaintiff as a counter blast to the notice whereby the licence of plaintiff has been terminated and he has been asked to vacate the suit premises.
11. My issuewise finding as follows:
ISSUE No. 1
Whether the plaintiff has no cause of action against the defendant? OPD Onus to prove this issue was on defendant. In the written statement defendant has taken an objection that there is no cause of action in favour of the plaintiff to file the present suit of injunction as the P.No. 9 Of 15 : 10 : CS No.: 402/13/90 status of the plaintiff has always been that of a licencee. It is further stated in the written statement that without prejudice to the rights and contentions of the defendant, defendant no. 1 has no intention to make any structural changes in the entry gate.
12. My learned Predecessor had appointed a local commissioner who has given his report dated 16.08.1990 reporting that width of gate is 11 feet 6 inches, length of the common passage 186 feet and width of the common passage 18 feet. Admitted facts before the court as on today are that the plaintiff is in possession of the suit premises, the property in question in fact belongs to the defendant. The controversial facts as stated by plaintiff is that he is tenant in respect of the suit premises since 1976 and as per case of the defendant the plaintiff is licencee.
13. PW1 Tulsi Ram Fanda has been cross examined by learned counsel for the defendant. As per PW1, suit property was given to him on 01.07.1976 but no document was executed. PW1 admitted that on 29.07.1981, licence deed was written in which 1000 sq. feet area is mentioned. As per PW1 there is only one main gate for entering the P.No. 10 Of 15 : 11 : CS No.: 402/13/90 factory. There was no security guard on the gate but there is one chowkidar. The said chowkidar has been appointed by the defendant and it is correct that said chowkidar/defendant opens and closes the main gate of the factory. It is also correct that the passage for going to suit premises is a private lane but is commonly used.
14. In the present case the relief being sought by the plaintiff is to the effect that the defendant should be restrained from making any structural changes in the entry gate measuring 11.5 feet in the site plan and also from interfering in any manner in the entry of plaintiff's vehicle carrying goods and his private vehicles to approach industrial shed. This court is of the view that irrespective of going to the status of the plaintiff whether as a tenant or as a licencee, the admitted position is that plaintiff is in possession of the suit premises admittedly since 1976 and defendants have admitted in their written statement that as on today they have no intention to make structural changes. This court, therefore, finds that the plaintiff have had the cause of action if his right to use the common passage for ferrying the goods by way of vehicles and also entry P.No. 11 Of 15 : 12 : CS No.: 402/13/90 of his private vehicles to the suit premises from the main gate of the factory is obstructed by the defendants.
15. In the written statement defendants have also taken another objection that present suit is barred under order 50 of DRC Act as for restoration of amenities, the plaintiff should have moved to the court of learned ARC under section 45 of DRC Act. But, I find, that this objection of the defendant is not legally correct as the DRC Act is applicable only to the residential premises but the suit premises in this case are in possession of the plaintiff for running an industry. Furthermore, on the one hand, the defendant say that the plaintiff is licencee and on the other hand, they say that the present suit is barred under section 50 of DRC Act. For attraction of provisions of section 45 there should be relationship of landlord and tenant. Therefore, the plaintiff had cause of action to file the present suit. This issue is accordingly decided against the defendant.
P.No. 12 Of 15
: 13 : CS No.: 402/13/90 16. ISSUE NO. 2 :
Whether the plaintiff is entitled to the relief of injunction as prayed? OPP.
Onus to prove this issue was on the plaintiff. The plaintiff through PW1 being one of the partner has deposed that since tenanted premises is industrial shed and was let out for the purpose of running an industry, now, the defendants with a view to get the plaintiff ousted from the suit premises have started engineering other malafide tactics and in that process on dated 05.08.1990, the defendants attempted to stop the loaded tempo no. DBL3038 at the gate and denied entry to it to unload the goods in the plaintiff's tenanted premises. The goods comprised of heavy steel rods. The defendants have threated that they would shorten the gate Mark X to Mark X1 by breaking it so that vehicles belonging to plaintiff are not able to enter at all.
17. DW1 Ms. Neelam Seth @ Neelam Bagga has been cross examined by learned counsel for the plaintiff. In the cross examination, P.No. 13 Of 15 : 14 : CS No.: 402/13/90 it has been admitted by DW1 that as per site plan Ex. PW1/4 the ingress and egress of the defendant is from the right gate. It is also an admitted fact on the part of the defendant that the plaintiffs were inducted into the suit premises by late Sh. Charanjit Lal Seth to run an industry in the year 1976. Since admittedly, defendant is running an industry of metal forging wherein the big iron rods are used and can be supplied only by way of vehicles, the act of the defendants stopping the vehicles of the plaintiff carrying goods/material with further threat to shorten the gate which measure 11.6 feet, is unwarranted. Moreover, the defendants in their written statement stated that they have no intention to shorten the main gate. Therefore, under these circumstances, this issue is decided in favour of plaintiff and against the defendants.
18. RELIEF:
In view of my discussion on issues hereinabove, a decree for permanent injunction is hereby passed in favour of plaintiff and against the defendants, their legal heirs, agents, representatives, attorneys and assignees etc.etc and they are restrained from making any structural P.No. 14 Of 15 : 15 : CS No.: 402/13/90 changes in the entry gate measuring about 11.5 feet shown as X to X1 in the site plan and also from interfering in any manner in the entry of plaintiffs vehicles carrying goods and his private vehicles to approach his industrial shed i.e. the tenanted premises shown in red colour in the site plan in respect of premises bearing no. B55, Mayapuri, PhaseI, New Delhi. Under the circumstances parties are left to bear their own costs. Decree sheet be prepared accordingly.
File be consigned to record room.
Announced in the open court on 20th January, 2014.
(KISHOR KUMAR) CIVIL JUDGE12/CENTRAL Tis Hazari/Delhi.
P.No. 15 Of 15