Delhi District Court
Daya Shanker Sharma vs Ms Gosain Brothers on 18 November, 2023
IN THE COURT OF SH. RAJESH MALIK, ADDITIONAL
DISTRICT JUDGE -06: CENTRAL DISTRICT,
TIS HAZARI COURTS, DELHI
CS DJ 11746/16
IN THE MATTER OF:-
Shri Daya Shanker Sharma
alias Shri Dinesh Kumar
(since deceased)
Through his L.R.
Shri Prashant Sharma
Son of Shri Dinesh Kumar @ Daya Shanker
R/o House No. 174, Block SU,
Pitampura, Delhi
..........Plaintiff
VERSUS
1. M/s Gosain Brothers,
(through its partners)
Shop No. 969, Hamilton Road,
Kashmere Gate, Delhi-110006
2. Smt. Geeta Gosain,
Wd/o late Shri Gulshan Gosain
R/o A-12/6, Rana Pratap Bagh,
Delhi-110007
3. Shri Rajesh Gosain,
s/o Late Shri Sardari Lal Gosain,
R/o 319, 3rd Floor, Rishi Nagar,
Delhi-110034
........Defendants
CS DJ 11746/16
Daya Shanker Sharma vs M/s Gosain Brothers Page No. 1 of 19
Other Details :
Date of Institution : 21.03.2014
Date of Reserving Judgment : 26.07.2023
Date of Judgment : 18.11.2023
SUIT FOR RECOVERY OF POSSESSION, DAMAGES/MESNE
PROFITS AS WELL AS FOR PERMANENT INJUNCTION
JUDGMENT:-
Rent out a shop:-
1. The plaintiff and his predecessor-in-interest shall be referred to as the landlord in the later part of the judgment. The landlord rented out the Shop No. 969, Hamilton Road, Kashmere Gate, Delhi-110006 (hereinafter mentioned as the tenanted premises) at the monthly rent of Rs.10.69/- to Vishwa Mitter Gosain, who started carrying out his business in the tenanted premises. It is averred that Vishwa Mitter Gosain was issue-less. He unfortunately expired, leaving behind his widow namely Veeran Devi and the tenancy devolved upon his widow. She became the statutory tenant of the premises. It is averred that since the rate of rent of the tenanted premises was very meager i.e. @ Rs. 10.69/- per month, therefore, neither the plaintiff claimed the said rent from the tenant nor did the tenant come forward to make the payment of the said rent except for the initial few months. Thereafter, Veeran Devi (widow of Vishwa Mitter Gosain) also passed away.CS DJ 11746/16
Daya Shanker Sharma vs M/s Gosain Brothers Page No. 2 of 19 Petition under Section 25-B of Delhi Rent Control Act:-
2. Since, the plaintiff required the property for bonafide use and therefore, the plaintiff filed a petition under section 14(1)(e) read with Section 25-B of the Delhi Rent Control Act against Veeran Devi (widow of Vishwa Mitter Gosain). In the said petition, the D-2 & D-3 (defendants herein) namely Geeta Gosain and Rajesh Gosain moved an application seeking leave to defend. In the said application, the D-2 and D-3 disclosed about the death of Veeran Devi (widow of Vishwa Mitter Gosain) and they stated that they are in possession of the suit property. Having come to know about the death of Veeran Devi ( widow of Vishwa Mitter Gosain and statutory tenant), the petitioner withdrew her petition under Section 14 (1)
(e) read with Section 25-B of the Delhi Rent Control Act.
The present suit for possession, mesne profits and injunction:-
3. The present suit for possession, damages, mesne profits and permanent injunction has been filed with submission that the defendants were not inducted as the tenants in the tenanted premises, nor they are the LRs of deceased Vishwa Mitter Gosain or Veeran Devi Gosain. It is averred that they have taken a false and frivolous stand in the eviction petition that they were inducted as the tenants in the tenanted premises and are carrying business in the name and style of D-1 i.e. M/s Gosain Brothers.
4. It is averred that the defendants are unauthorised and illegal occupants of the suit property having no right and title in the property to use and enjoy the same and they are also liable to pay damages for illegal use of suit property @ Rs. 10,000/- per month, which is prevailing rate of rent in the similarly situated premises. The plaintiff claims the said CS DJ 11746/16 Daya Shanker Sharma vs M/s Gosain Brothers Page No. 3 of 19 damages/mesne profits from the defendants for the last two years preceding the filing of the present suit. Thus, the defendant is liable to pay damages to the tune of Rs.2,40,000/- to the plaintiff on account of damages/mesne profit. The plaintiff has also sought future mesne profit @ Rs. 10,000/- per month from the date of filing of the present suit till the defendants handover the actual, vacant and peaceful possession of the premises in his favour. The plaintiff has also sought decree of permanent injunction to restrain the defendants from creating third party interest in the suit property.
M/s Gosain Brothers (a partnership firm):
5. In the written statement of the defendants, it is averred that the petitioner was fully aware about the death of Veeran Devi (widow of Vishwa Mitter Gosain) and the petition under Section 14 (1) (e) of the Delhi Rent Control Act was filed intentionally to evict the present defendants in the garb of an order under Delhi Rent Control Act. It is averred that the Vishwa Mitter, Hans Raj Gosain and Sardari Lal Gosain formed a partnership firm in the name of M/s Gosain Brothers. All three were brothers. The said partnership firm has been continuing since 26.04.1955 and the LRs of the deceased partners have been running the said firm in the name of M/s Gosain Brothers. It is averred that the landlord rented out the said property to all the three brothers namely Vishwa Mitter Gosain, Hans Raj Gosain and Sardari Lal Gosain for carrying out the motor parts business. Since, Vishwa Mitter Gosain was the eldest amongst all three brothers, the rent receipts had been got issued in the name of eldest brother namely Vishwa Mitter Gosain. The partnership business from the tenanted premises has been running since 26.04.1995 and the same was in CS DJ 11746/16 Daya Shanker Sharma vs M/s Gosain Brothers Page No. 4 of 19 the knowledge of landlord, who allowed the partnership business to be conducted through the tenanted premises by the partnership firm namely M/s Gosain Brothers.
6. It is averred that M/s Gosain Brothers being the partnership firm got the TIN Number from the Sales and Tax Department and this TIN Number shows that the said partnership firm has been carrying out the business in the name of M/s Gosain Brothers since 26.04.1995. It is submitted that the answering defendants are LRs of the deceased partners of M/s Gosain Brothers.
7. Thereafter, replication was filed, denying the averments made in the written statement. It is submitted in the replication that Vishwa Mitter Gosain and Veeran Devi died issueless and the present defendants are unauthorised occupants.
8. On completion of pleadings, following issues were framed for consideration:-
ISSUES:-
(i) Whether plaintiff has not valued his suit property for the purpose of court fees and jurisdiction? (OPD 1, 2 & 3)
(ii)Whether the suit property was let out to all the three Gosain Brothers to carry out their business (OPD 1, 2 & 3)
(iii)Whether the plaintiff has no cause of action to file the present suit and therefore same is liable to be rejected under Order. 7 Rule, 11 CPC (OPD 1 & 2) CS DJ 11746/16 Daya Shanker Sharma vs M/s Gosain Brothers Page No. 5 of 19
(iv)Whether the plaintiff has no locus standi to file the present suit? (OPD 1 & 2)
(v)Whether the suit is barred under Section 50 of DRC Act? (OPD 3)
(vi)Whether this court has no pecuniary jurisdiction to entertain and try the present suit? (OPD 3)
(vii)Whether plaintiff is entitled for decree of possession in respect of the suit property? (OPP)
(viii)Whether plaintiff is entitled for damages/mesne profit, if so, at what rate and for what period? (OPP)
(ix)Whether plaintiff is entitled for decree of permanent injunction as prayed for? (OPP)
(x) Relief.
Plaintiff Evidence:-
9. The landlord examined himself as PW-1. He reiterated the same facts as mentioned in the plaint. He was cross-examined. In his cross-
examination, he stated that business of Vishwa Mitter Gosain was conducted in the name of M/s Gosain Brothers and Vishwa Mitter Gosain was the elder brother among all three brothers. He denied the suggestion that rent receipts were got issued by all three Gosain brothers in the name of eldest brother Vishwa Mitter Gosain. He stated that he has not collected any rent in respect of tenanted premises after 1978. He voluntarily added that they did not pay any rent. He stated that when he saw the signboard at the shop, it was written as 'Gosain' and he stated that no such partnership deed of Gosain Brothers has ever been handed over to his late father. He stated that he knew Veeran Devi. She was the wife of Vishwa Mitter Gosain. He came to know abut the death of Veeran Devi when he filed the CS DJ 11746/16 Daya Shanker Sharma vs M/s Gosain Brothers Page No. 6 of 19 petition before the Rent Controller. He denied the suggestion that an amount of Pagdi was given to his late father at the time of letting out the tenanted shop.
10. PW-2 was official from the Post Office. He deposed that the summoned record regarding delivery of speed post has been weeded out.
Defendants Evidence:
11. The defendants examined D-1/W1 namely Ms. Geeta Gosain. She reiterated her averments made in the written statement. She stated that Vishwa Mitter Gosain, Hansraj Gosain and Shri Sardari Lal formed a partnership firm in the name of Gosain Brothers and the said partnership firm has been continuing since 26.04.1955 and LRs of deceased persons have been running the said partnership firm in the name of Gosain Brothers.
12. In her cross-examination, she stated that she has no knowledge about the events qua the tenancy of property in question prior to 1982, however, she has heard about that. She stated that as per her knowledge, the tenancy was in the name of Gosain Brothers. She stated that she was not aware as to under whom Vishwa Mitter Gosain was the tenant and when tenancy was created. She deposed in her cross-examination that late Vishwa Mitter Gosain was survived by his wife and his daughters. She gave details of daughters of Vishwa Mitter Gosain in her cross- examination. She admitted that she did not mention about the daughters in any of the pleadings before the court. She admitted that she did not disclose about the fact of surviving daughter of Vishwa Mitter Gosain in her reply CS DJ 11746/16 Daya Shanker Sharma vs M/s Gosain Brothers Page No. 7 of 19 filed before the court of Ld. Additional Rent Controller. She stated that she did not have any document to show that the tenany was created in favour of three brothers namely Vishwa Mitter Gosain, Hansraj Gosain and Sardari Lal Gosain. She stated that she is not aware about any NOC given by the landlord to form the partnership firm at the tenanted premises. She stated that the tenanted shop is in possession of her son Gautam Gosain. She stated that she is aware that landlord filed eviction petition against Veeran Devi for his bonafide requirements. She stated that she did not obtain NOC to obtain the TIN number from the Sales Departments from the landlord. She stated that she claimed over the tenanted premises being the successors in interest of Vishwa Mitter Gosain, Hansraj Gosain and Sardari Lal. She admitted that she did not deposit any rent in favour of landlord before any court of law. She denied the suggestion that they were occupying the tenanted premises illegally.
Court's findings on Issues:-
13. Issue No. 1: Whether plaintiff has not valued his suit property for the purpose of court fees and jurisdiction? (OPD 1, 2 & 3) Finding: The plaintiff has filed the present suit for recovery of possession, damages, mesne profits as well as for permanent injunction. The plaintiff has valued the relief of possession on the basis of the market value of tenanted premises. The value of tenanted premises has been shown as Rs. 15 lakh. The relief for the damages and mesne profit @ Rs.10,000/- per month for the preceding two years has been valued as Rs.2,40,000/- and the relief of permanent injunction has been valued as Rs.130/-. The total court fees of Rs. 22,000/- has been paid on the reliefs sought.
CS DJ 11746/16Daya Shanker Sharma vs M/s Gosain Brothers Page No. 8 of 19
14. The defendant in his WS has taken a plea that the suit has not been properly valued, but he has not brought any evidence to show that the market value of the property is more than what has been stated by the plaintiff. The plaintiff has valued the relief of possession on the basis of market value, therefore, the onus to show that the market value has not been correctly mentioned lies upon the defendant. However, the defendant has not brought any evidence to show the contrary. As per the Section 7 (v) of the Court fees Act, 1817 the amount of court fees payable for possession of land/house and garden is according to the market value of the land. The reliefs of mesne profit and damages are primarily the domain of the plaintiff and the relief of damages and mesne profit @ Rs. 10,000/- per month has been sought for the period of two years immediately preceding the filing of the present suit. The court fees on the said amount has been paid. Therefore, there is no deficiency in payment of the court fees. Accordingly, the issue No.1 is decided against the defendant and in favour of the plaintiff.
15. Issue No.2 :Whether the suit property was let out to all the three Gosain Brothers to carry out their business? (OPD 1, 2 & 3) Finding: The case of the plaintiff is that the shop was rented out to Vishwa Mitter Gosain. The plaintiff has relied upon the rent receipts in favour of Vishwa Mitter Gosain. All the receipts were issued in the name of Vishwa Mitter Gosain as the tenant. The rent receipts are Ex. PW-1/3 (colly). The rent receipts carry the signatures of Vishwa Mitter Gosain. The defendant has also relied upon the rent receipts i.e. Ex. D- 1/1/3. The said rent receipts also carry the name of Vishwa Mitter Gosain. The defendant has not shown any receipt in the name of Vishwa Mitter CS DJ 11746/16 Daya Shanker Sharma vs M/s Gosain Brothers Page No. 9 of 19 Gosain, Hansraj Gosain and Sardari Lal Gosain or in the name of partnership firm. It has been pleaded that rent receipts were being issued in the name of Vishwa Mitter Gosain as he was the elder brother of Hansraj Gosain and Sardari Lal Gosain. However, this fact has not been proved.
16. On the given facts, we can not assume that rent receipts were issued in favour of Vishwa Mitter Gosain being the elder brother. If a tenant started a partnership firm from the tenanted premises with his brothers, then it does not create the tenancy in favour of a partnership firm. The landlord has to accept the partnership firm as his tenant and the onus to show that the landlord had accepted the partnership firm as his tenant lies upon the persons, who aver to be the tenant of the shop. The defendants have relied upon number of documents i.e. Ex. D-1/W1/8 to Ex. D- 1/W1/32. All these documents pertain to partnership firm being run from the tenanted shop, but none of these documents has been issued by the landlord to show that he had admitted the partnership firm as his tenant. Whatever the tenant or his family members were do sitting in the shop in relation to his business is not a concern of the landlord. The exhibits i.e. Ex. D-1/W1/8 to Ex. D-1/W1/32 pertain to the business activities being run from the shop by Gosain Brothers in the name of M/s Gosain Brothers, but as noted above these business activities such as issuance of license, TIN Number, manufacturing details do not make M/s Gosain Brothers as the tenant. The defendant has to show either by oral evidence or documentary evidence that the shop was rented out to the partnership firm, however, they have failed to do so as the rent receipts show that the rent was being paid by Vishwa Mitter Gosain in his individual capacity.
CS DJ 11746/16Daya Shanker Sharma vs M/s Gosain Brothers Page No. 10 of 19
17. It is reiterated here that whatever Vishwa Mitter Gosain was doing with the shop was not the concern of landlord. The landlord was to get recovery of possession from Vishwa Mitter Gosain, as the former had no business with Gosain Brothers. Thus, the issue No.2 is decided against the defendants and in favour of the plaintiffs.
18. Issue No.3 : Whether the plaintiff has no cause of action to file the present suit and therefore same is liable to be rejected under Order. 7 Rule, 11 CPC (OPD 1 & 2) Finding: As noted above, the landlord sought the recovery of tenanted premises from the persons who are sitting in possession of the tenanted premises. Therefore, the plaintiff has a cause of action to recover his possession. Accordingly, issue no.3 is decided against the defendants and in favour of the plaintiffs.
19. Issue No.4 : Whether the plaintiff has no locus standi to file the present suit? (OPD 1 & 2) Finding : The plaintiff is the son of Daya Shankar Sharma. It is a settled preposition of law that a son can file a suit for recovery of possession of the property belonging to his deceased father in the capacity of the LR and the inter-se dispute, if any, between the LRs of the actual owner needs not to be looked into inasmuch as the third party has no say in the inter-se dispute amongst the LRs. In the present case, the plaintiff is the son of the landlord ,who had rented out the shop to the Vishwa Mitter Gosain and therefore, the plaintiff has a locus standi being the successor in interest of the landlord to institute the present suit. Accordingly, the issue no.4 is decided in favour of the plaintiff and against the defendants.
CS DJ 11746/16Daya Shanker Sharma vs M/s Gosain Brothers Page No. 11 of 19
20. Issue No. 5: Whether the suit is barred under Section 50 of DRC Act? (OPD 3) Finding: The section 50 of DRC Act bars the jurisdiction of civil court in respect of matter pertaining to eviction of any tenant from any premises, to which this Act applies. Admittedly, Vishwa Mitter Gosain was the tenant under the Delhi Rent Control Act. After his death, his tenancy devolved upon his legal heirs i.e. his wife being the first in preference of order of succession. His wife also died after him. The right of every successor of the statutory tenancy to continue possession after termination of tenancy shall be personal to him and shall not on the death of successor devolve upon any of his successor. This is what the Section-2(l) Explanation-III(b) of the Delhi Rent Control Act says. It is reproduced here as under:-
b. The right of every successor referred to in Explanation-1 to continue in possession after the termination of tenancy shall be personal to him and shall not, on the death of successor, devolve on any of his heirs.
21. The plaintiff first approached the DRC Court seeking eviction on the ground of bonafide requirement. The petition was filed against the wife of Vishwa Mitter Gosain. However, the plaintiff came to know that wife of Vishwa Mitter Gosain Smt. Veeran Devi expired. Thereafter, the plaintiff withdrew the eviction petition under DRC Act and filed the present suit on the ground that the person sitting in the shop are not his statutory tenants. As noted above, the defendants have failed to show that they were the statutory tenants as the rent receipts are in the name of Vishwa Mitter Gosain. Since, the defendants are not the statutory tenants, therefore, the Section 50 DRC Act does not apply to the present case. Accordingly, Issue CS DJ 11746/16 Daya Shanker Sharma vs M/s Gosain Brothers Page No. 12 of 19 No.5 is decided in favour of the plaintiff and against the defendants.
22. Issue No. 6: Whether this court has no pecuniary jurisdiction to entertain and try the present suit? (OPD 3) Finding: The landlord has valued suit for the purpose of court fees and jurisdiction as Rs. 17,40,130/-. The suit was filed in the year 2014. In the year 2014, Ld. Court of ADJ had the pecuniary jurisdiction to entertain the suit up to Rs. 20 lakh. Hence, the court had the pecuniary jurisdiction to entertain the present suit.
23. Issue No. 7: Whether plaintiff is entitled for decree of possession in respect of the suit property? (OPP) Finding: The landlord has sought possession on the basis that the persons in the tenanted shop are not his tenants and they are the unauthorised occupants. The defendants claim that the tenancy was given to a partnership firm namely M/s Gosain Brothers and they are not the unauthorised occupants and the statutory tenants under the DRC Act. The rent receipts being relied upon by the plaintiff as well as the defendants point out that rent receipts were issued in name of Vishwa Mitter Gosain. Nothing has come on record to raise the assumption that the tenanted premises were rented out to M/s Gosain Brothers. The onus to prove the tenancy of M/s Gosain Brothers lies upon the defendants, but the defendants have failed to bring on record that M/s Gosain Brothers was the tenant. As noted above, Vishwa Mitter Gosain was the tenant and after his death, tenancy devolved upon his wife, who has also passed away. No other legal heirs of Vishwa Mitter Gosain have been impleaded in the present case. The daughters of Vishwa Mitter Gosain filed their application under CS DJ 11746/16 Daya Shanker Sharma vs M/s Gosain Brothers Page No. 13 of 19 Order. 1 Rule, 10 CPC, but the same was dismissed for non-prosecution. It is a settled law that receipt of summons of a suit of possession shall be read as a notice to quit and there is no need to issue a separate notice to the defendants to terminate his tenancy. Therefore, the plaintiff being the successor in interest of the premises is entitled for the decree of possession in respect of the suit property.
24. Issue No. 8: Whether plaintiff is entitled for damages/mesne profit, if so, at what rate and for what period? (OPP) Finding: The plaintiff has sought relief of damages/mesne profits for a period of two years immediately filing of the present suit @ Rs. 10,000/- per month for illegal use, occupation and possession of the shop and further a decree of pendente lite and future damages @ Rs.10,000/- per month from the date of filing of present suit till the defendants vacant and handover the actual, peaceful possession of the suit property. In this respect, it is noted here that the plaintiff issued legal notice to Smt. Veeran Devi Gosain, who was the statutory tenant and eviction petition under Section 14 (1)(e) read with Section 25 (b) of Delhi Rent Control Act for the bonafide requirement was filed. Apparently, the earlier proceedings under DRC Act was withdrawn because it was revealed to the plaintiff that Smt. Veeran Devi Gosain died before filing of the proceedings under DRC Act. Thereafter, the present suit was filed. As discussed above, before filing of the present suit, the tenancy of the tenanted premises was under the DRC Act. Mere filing of the DRC proceedings does not terminate the tenancy. The tenancy under DRC Act terminates with eviction decree by a competent court. Here, reliance is placed upon the judgment of Hon'ble Supreme Court in the matter of M/s Martin and Harris Pvt. Ltd.
CS DJ 11746/16Daya Shanker Sharma vs M/s Gosain Brothers Page No. 14 of 19 and Others vs Rajender Mehta and Others. (2022 Live Law SC 568), wherein it was held that statutory tenancy terminates with passing of a decree by the competent court. It is noted here that before filing of the present suit, the landlord did not approach the DRC Court for recovery of rent. The tenant as well as the landlord admitted that the rent was minuscule, therefore, the landlord did not demand the arrears of rent. Thereafter, present suit was filed on 23.03.2014.
25. In the present suit, the plaintiff demanded damages and mesne profit for a period of 02 years immediately preceding the filing of the present suit @ Rs. 10,000/- per month. As noted above, the tenancy, which was earlier under the DRC Act, was not terminated as no eviction order of the competent court was passed. The mesne profit can only be granted when the tenancy is terminated either under the Transfer of Property Act or by court order under the DRC Act. Apparently, it was not terminated two years prior to filing of suit. Hence, no mesne profit and damages can be awarded to the plaintiff for the two years before the filing of the present suit.
26. So far as the pendente lite and future, mesne profit/damages are concerned, the plaintiff has demanded mesne profits @ Rs. 10,000/- per month. However, the plaintiff has not produced any evidence that the prevailing rate of rent is Rs. 10,000/- per month. However, it is noted here that it is a settled legal position that the courts ought to order an inquiry as per the provisions of order. 20 Rule, 12 CPC in cases, where absolutely no evidence has been led by the parties on the issue of quantum of mesne profits to be awarded. In the present case, no evidence has been led by the CS DJ 11746/16 Daya Shanker Sharma vs M/s Gosain Brothers Page No. 15 of 19 landlord on the quantum of mesne profits to be awarded for pendente lite and future mesne profits. Order. 22 Rule, 12 CPC prescribes the procedure to be followed by the court while dealing with a plaint for grant of profit. This provision is read as under:-
"Order 20 Rule 12:-
Decree for possession and mesne profits - (1) Where a suit is for recovery of possession of immovable property and for rent or mesne profits, the court may pass a decree:
a) for the possession of the property;
b) for the rents which have accrued on the property during the period prior to the institution of the suit or directing an inquiry as to such rent;
(ba) for the mesne profits on directing an inquiry as to such mesne profits;
(c) directing an inquiry as to rent or mesne profits from the institution of the suit until -
(i) the delivery of possession to the decree-holder,
(ii) the relinquishment of possession by the judgment-debtor with notice to the decree-holder through the Court, or
(iii) the explanation of three years from the date of the decree, whichever event first occurs.
(2) Where an inquiry is directed under clause (b) or clause
(c), a final decree in respect of the rent or mesne profits shall be passed in accordance with the result of such inquiry."
27. Reverting back to the facts of the present case, no evidence has been led for determination of pendente lite and future mesne profits. In light of the specific provision under Order. 20 Rule, 12 CPC, the suit can not be dismissed qua the mesne profit without directing an inquiry as to such mesne profit. Therefore, a final decree in respect of mesne profit shall be passed in accordance with the result of such inquiry.
28. Issue No. 9: Whether plaintiff is entitled for decree of permanent injunction as prayed for? (OPP) CS DJ 11746/16 Daya Shanker Sharma vs M/s Gosain Brothers Page No. 16 of 19 Finding: The plaintiff has been able to show that he is entitled to get eviction decree from the defendant. If the defendants create any third party interest in the suit property, then there would be multiplicity of parties and proceedings. Preservation of the suit property is essential in the present case to execute the possession decree. If the suit property is not preserved, then the defendants can easily frustrate the decree of the court by creating third party interest in it. Accordingly, the defendants are restrained from creating any third party interest in the suit property. Accordingly, issue No.9 is decided in favour of the plaintiff and against the defendants.
29. Relief:- In view of the findings given aforesaid, the plaintiff is entitled for a decree of possession and permanent injunction in respect of the shop No. 968, Hamilton Road, Kashmere Gate, Delhi as shown red in colour in the site plan. The defendants are directed to immediately vacate and hand over actual, vacate and peaceful physical possession of the suit premises to the plaintiff. The plaintiff is also entitled to decree for permanent injunction against the defendants, their agents, employees, associates, workers, family members from subletting, assigning and or otherwise parting with the possession and/or creating any third party interest in respect of the tenanted premises. The issue of mesne profit shall be decided after inquiry.
30. Before parting with the present judgment, it is relevant here to note that when the case was fixed for judgment, the application under Order. 1 Rule, 10 CPC was filed by the applicants who claim to be the daughters of Vishwa Mitter Gosain. The applicants claim to have inherited CS DJ 11746/16 Daya Shanker Sharma vs M/s Gosain Brothers Page No. 17 of 19 the statutory tenancy of Vishwa Mitter Gosain. However, after filing of application, they did not appear and the application under Order. 1 Rule, 10 CPC was dismissed vide order dated 10.10.2023 for non-prosecution. The order dated 10.10.2023 is reproduced here as under:-
"10.10.2023 Present: Plaintiff is represented by Ld. Counsels Ms. Jasmeet Kaur and Shri R.S Tiwari.
D-1 and D-2 are represented by Proxy Counsel.
D-3 is already ex-parte.
None is present for the applicant of the application under Order 1 Rule 10 CPC.
The matter is passed over till 02:00 P.M for arguments on the application under Order 1 Rule 10 CPC.
(Rajesh Malik) ADJ-06, Central, THC Courts, Delhi/10.10.2023 av At 2:30 P.M:-
Present: Plaintiff is represented by Ld. Counsels Shri R.S Tiwari, Ms. Jasmeet Kaur and Pushpendra Singh.
D-1 and D-2 are represented by Proxy Counsel.
D-3 is already ex-parte.
None is present for the applicant of the application under Order 1 Rule 10 CPC.
The case is fixed for argument on an application under Order 1 Rule 10 CPC. On the last date of hearing as well, none appeared on behalf of the applicant to argue on the application.
Today also, despite repeated calls since morning, none has appeared on behalf of the applicant. The application under Order 1 Rule 10 CPC has been filed by the alleged daughters of Shri Vishwamitra Gosain, who was the statutory tenant of the predecessor-in-interest of the plaintiff. The application under Order 1 Rule 10 CPC filed by the daughters of the statutory tenant on the ground that the tenancy rights of the statutory tenants have been devolved upon them after the death of the statutory tenant and his wife. The application is accompanied with the photocopies of Adhaar Cards. However, no one has been appearing for CS DJ 11746/16 Daya Shanker Sharma vs M/s Gosain Brothers Page No. 18 of 19 the last two dates of hearing to argue the present application.
It is noted here that this court can not per se rely upon the photocopies of the Adhaar Cards and cannot suo-moto allow the application without hearing arguments of the applicant.
The application has been opposed by the plaintiff on the ground that during the entire proceedings, the alleged daughters of the statutory tenant did not turn up to make the claim of devolution of tenancy rights nor did the proposed defendants take up the plea of devolution of interest in the tenancy.
Without passing any comments on the merits of the application, the present application stands dismissed for non-prosecution.
Arguments in the present suit have already been concluded.
Accordingly, put up for judgment on 20.10.2023."
31. Reverting back to the facts of the present case, the daughters of statutory tenant did not show that after the death of their father, they remained in possession of the tenanted premises. They stopped appearing after filing of application and the same was dismissed for non-prosecution. Accordingly, let the preliminary decree be prepared in terms of the reliefs given above.
32. Put up for evidence in respect of the mesne profits on 06.04.2024.
Announced in open Court Dated: 18th November, 2023 (RAJESH MALIK) Addl. District Judge-06 (Central), Tis Hazari Courts, Delhi CS DJ 11746/16 Daya Shanker Sharma vs M/s Gosain Brothers Page No. 19 of 19