Delhi District Court
Haji Ghazanfar Ali vs Mohd. Fazil on 31 January, 2025
IN THE COURT OF DISTRICT JUDGE-01
CENTRAL, DELHI
CS No. 17201/2016
CNR No. DLCT01-001294-2012
HAJI GHAZANFAR ALI
(SINCE DECEASED) THROUGH LRS
(i) SMT. SUGHRA BEGUM YEARS 70 YEAR (WIFE)
W/O LATE HAJI GHAZANFAR ALI
(ii) SH. MOHD KHALID 36 YEARS (SON)
S/O LATE HAJI GHAZANFAR ALI
(iii) SH. MOHD. FARUKH 40 YEARS (SON)
S/O LATE HAJI GHAZANFAR ALI
(ALL RESIDENT OF H.NO. 6402, GALI ISHWARI PRASAD, BARA HINDU
RAO, DELHI-06)
(iv) SH. HAROON AGE ABOUT 46 YEARS (SON)
S/O LATE HAJI GHAZANFAR ALI
R/O D-1/100, DIYALPUR, NEAR AISHA MASJID, DELHI-94.
(v) SMT. SALMA, W/O SH. MOHD. SUBHAN AGED ABOUT 55 YEARS
(DAUGHTER) R/O. RZ-738, GALI NO. 22, TUGHLAQABAD
EXTENSION,
TUGHLAQABAD, NEW DELHI
(vi) SMT. SITARA, W/O SH. MOHD. IQBAL AGED ABOUT 53 YEARS,
(DAUGHTER), R/O G-208, GALI NO. 18, NEAR NOOR MASJID,
PURANA MUSTAFABAD, DELHI.
(vii) SMT. JAHAN AARA, W/O SH. MOHD. SHARAFAT, AGED ABOUT 50
YEARS, R/O H.NO. 312, KACCHI SARAI, MOHALLAN KOT,
MURADNAGAR, DISTRICT GHAZIABAD, UP.
CS NO. 17201/16 HAJI GHAZANFAR ALI VS. MOHD. FAZIL PAGE NO. 1/20
(viii) SMT. ZAHIDA, W/O SH. MOHD. YOUSUF AGED ABOUT 45 YEARS, R/O
H. NO. 790, KISHAN GANJ, NAI ABADI, PILAKHWA, DISTRICT
GHAZIABAD, UP.
(ix) SMT. SHAHIDA, W/O SH. RIYAZUDDIN, AGED ABOUT 39 YEARS, R/O
H.NO. 71, BAGH JANKIDASS, SHAMLI ROAD, NEAR TANGA STAND,
DISTRICT MUZAFFAR NAGAR, UP.
(x) SMT. TABASSUM, W/O MOHD. NISAR AGED ABOUT 34 YEARS, R/O
H.NO. 2863, GALI NO. 15, FHATALLEPUR ROAD, AHMED NAGAR,
DISTRICT MEERUT, UP.
(xi) SMT. TARANNUM, W/O SH. MOHD. ASFAAR @ MUNNA AGED ABOUT
32 YEARS (DAUGHTER) R/O H.NO. 143, GALI NO. 10, KARIM NAGAR,
ANSAR BLOCK, DHAWAI NAGAR, HAPUR ROAD, MEERUT, UP.
PLAINTIFFS
VERSUS
(xii) MR. MOHD. FAZIL
(xiii) MR. MOHD. ABID
BOTH SONS OF LATE SH. NASIRUDDIN
R/O 7524/B, 3RD FLOOR, GALI KABRONWALI, QURESH NAGAR,
SADAR BAZAR, DELHI-06.
DEFENDANTS
JUDGMENT
DATE OF INSTITUTION : 20.10.2012
DATE OF RESERVING JUDGMENT : 27.01.2025
DATE OF JUDGMENT : 31.01.2025
1. The present suit has been filed by the plaintiff seeking recovery of damages to the tune of Rs. 10,77,500/- and permanent injunction pleadings inter alia as under :-
i. That the plaintiff was running the hotel/dhaba at plot no. 7524-B, Gali Quabronwali, Qasabpura, Sadar Bazar, Delhi-110006 since last about 50-60 years and that the land on which the plaintiff was running the dhaba belongs CS NO. 17201/16 HAJI GHAZANFAR ALI VS. MOHD. FAZIL PAGE NO. 2/20 to custodian department of Government and also that the defendants are also residing in the same plot bearing no. 7524-B, Gali Quabronwali, Qasabpura, Sadar Bazar, Delhi-110006.
ii. That there are so many occupants in plot no. 7524-B, Gali Quabronwali, Qasabpura, Sadar Bazar, Delhi-110006 and the entire plot belongs to the custodian department of the government.
iii. That all other occupants of the land in question were depositing the rent through the father of the defendants till October-2008 and when the plaintiff other occupants came to know that the rent collected from the occupants of the land belongs to custodian comprising in plot no. 7524-B, Gali Quabronwali, Qasabpura, Sadar Bazar, Delhi-110006 is not deposited with the landlord then the plaintiff has stopped to make the payment to the father of the defendants then the defendants, their father and other relatives have started to harass the plaintiff by one way or the other.
iv. That the defendants and his father hatched the conspiracy to grab the shops of the plaintiff and to fulfill their ill design, the defendants, his father and some gunda type persons came to the shop/dhaba on 17.05.2011 at about 3:00 to 3:30 PM of the plaintiff when he, his sons and labour were doing the repairs of tandoor and that the defendant no. 2 has threatened that they cannot install the tandoor and asked them to close the shop immediately and the defendants have tried to throw the utensils and they also tried to manhandle the plaintiff and his sons.
v. That the defendants always tried to stop the dhaba for the purpose of compelling the plaintiff to leave the shop due to fear of the defendants and their associates/company.
vi. That the defendants used to terrorize the plaintiff through local police and the illegal, unlawful and arbitrary acts of the defendant are in violation of the constitutional rights of the plaintiff.
CS NO. 17201/16 HAJI GHAZANFAR ALI VS. MOHD. FAZIL PAGE NO. 3/20 vii. That due to illegal and unwarranted acts of the defendants and their fellows, the plaintiff was constrained to close the dhaba which was running since last about 50 years uninterruptedly due to the illegal acts of the defendants and that the plaintiff has suffered the huge loss in the form of money and he has also suffered the loss of reputation/goodwill and has also suffered the mental agony and the defendants are responsible for the losses caused to the plaintiff due to their illegal acts of the defendants. viii. That the plaintiff alongwith his three sons was earning the livelihood for the entire family and that the earning of the plaintiff was about Rs. 1500/- per day after deducting all the expenses like material, labour charges etc. ix. That the hotel/dhaba of the plaintiff is lying closed since 17.05.2011 due to the sole acts, threats of the defendants, accordingly, the plaintiff has suffered the monetary loss of Rs. 5,77,500/- for the period of one year and twenty days till 08.06.2011.
x. That the earning of the plaintiff was about Rs. 1500/- per day after deducting all the expenses like material, labour charges etc., and that the defendants have forced the plaintiff to close the activities of the hotel/dhaba illegally, unlawfully and forcibly on the instance of muscle power despite the facts that Late father of the defendants has filed the suit titled as "Naseeruddin vs. Haji Ghazanfar Ali".
xi. That the hotel/dhaba of the plaintiff is lying closed since 17.05.2011 due to the sole acts and negligence, threats of the defendants hence the plaintiff has suffered the monetary loss of Rs. 5,77,500/- for the period of one year and twenty days till 08.06.2011.
xii. That the plaintiff has also sent the legal notice of demand dated 08.06.2012 which has been duly served upon the defendants but the defendants neither complied with the said notice nor gave any reply to the same.
CS NO. 17201/16 HAJI GHAZANFAR ALI VS. MOHD. FAZIL PAGE NO. 4/20 xiii. That it is pertinent to mention here that the defendants have no concern with the shops in which the plaintiff is running the hotel/dhaba and the same belongs to the custodian department.
xiv. That the plaintiff has made the complaint dated 26.03.2012 and 11.06.2012 to the local police station as well as to the DCP Office but till now police has not taken any action against the defendants nor has made arrangement to comply with the order of the civil court.
xv. That on 03.09.2012, the defendants alongwith some anti-social elements came to the suit property/dhaba of the plaintiff and they not only threatened for dire consequences and also threatenend that they will not let the plaintiff to run/start his business/dhaba.
xvi. That on the basis of the aforesaid, present suit was filed by the plaintiff on 20.10.2012 claiming following prayers :-
a. Pass a decree of recovery of damages to the tune of Rs. 10,77,500/- in favour of the plaintiff and against the defendants.
b. Pass a decree of permanent injunction in favour of the plaintiff and against the defendants, their employees, servants, family members or any body acting under them, thereby restraining them from interferring in the peaceful enjoyment of the property in question i.e. hotel/dhaba at plot no. 7524-B, Gali Quabronwali, Qasabpura, Sadar Bazar, Delhi-110006 as shown in the red colour in the attached site plan.
c. Award costs of the suit in favour of the plaintiff and against the defendants and d. Any other or further relief/reliefs which this Hon'ble Court may deem fit and proper may also be passed in favour of the plaintiff and against the defendants.
WRITTEN STATEMENT
2. The defendants, filed their joint written statement denying the contents of the plaint pleadings inter alia as under :-
CS NO. 17201/16 HAJI GHAZANFAR ALI VS. MOHD. FAZIL PAGE NO. 5/20 a. That the plaintiff has not come before the court with clean hands and with clear conscious and is guilty of suppression and misrepresentating the true and material facts from the court.
b. That the plaintiff has not paid the ad-volerum court fee on the value of the suit as per latest court fee act and that site plan filed by the plaintiff is absolutely wrong, fabricated and is not as per the actual position of the spot. c. That the suit is bad for non-joinder of necessary party since as per the plaintiff, the local police is interfering in his peaceful use and enjoyment of the property in question therefore the concerned SHO is the necessary party to the suit.
d. That the present suit has not been filed by a duly authorized and competent person, hence, the suit is liable to be dismissed.
e. That the plaintiff is motivated to raise the false and frivolous claim against the defendants by concocted, fabricated and cooked-up stories and that the plaintiff has admitted the fact that he is the tenant under the landlorship of Late Sh. Nasiruddin who was the father of the present defendants. f. That the plaintiff has filed the present suit with ulterior motives and malafide intention to prove himself to be the owner of the shop in question. g. That the present suit is an attempt by the plaintiff to pressurize the defendants while there is/was no such occassion when the defendants have disobeyed the order passed by the Ld. Civil Judge, Delhi and on the other hand, the plaintiff has made an attempt to fix the tandoor inside the tenanted premises/shop by digging the farsh/floor of the portion of the shop/premises in size having depth about 7 feet and about 4 feet width.
h. That the suit premises is lying locked since long back as the plaintiff is not doing any business in the same since last one and a half year prior to the filing of the suit for permanent injunction by the father of the defendants. i. That under the garb of the order dated 01.05.2012 passed by Sh. Jitender Pratap Singh, Civil Judge, Delhi, the plaintiff has made an attempt to fix his CS NO. 17201/16 HAJI GHAZANFAR ALI VS. MOHD. FAZIL PAGE NO. 6/20 tandoor inside the tenanted premises/suit property by breaking the farsh/floor which is having depth about 7 feet and width about 4 feet by violating the interim injunction order dated 09.12.2011.
j. That the plaintiff is motivated to grab the property of the defendants by hook or crook whereas it is clearly admitted by the plaintiff in his written statement filed in the earlier suit that he is a tenant and it is specifically submitted that the defendants have never interfered in any manner in the peaceful use and enjoyment of the said shop/premises by the plaintiff. k. On merits, it is submitted that the plaintiff has not served the copy of the site plan filed alongwith the plaint and that the site plan, if any, is not as per the actual position of the property. It has further been submitted that the father of the defendants had let-out one shop admeasuring 46 sq yds to the plaintiff for his residence and also for selling bread only. It has further been submitted that the plaintiff closed the shop with the malafide intention to raise false claims against the defendants.
l. It has further been submitted that the backside portion of the shop in question are in the possession/occupation of the father of the defendants and the plaintiff is a tenant qua the shop in question who has himself closed his dhaba without any interference from the defendants.
m. It has been submitted that the father of the defendants during his lifetime had filed a suit for permanent injunction against the plaintiff seeking the relief not to carry out any additions, alterations and structural changes in the suit property wherein an interim order dated 09.12.2011 has been passed against the plaintiff who has been restrained from carrying out any addition, alterations and structrual changes in the suit property who has also been restrained from parting with possession of the suit property to any third persons and despite the same, the plaintiff has made an attempt to carry out the structural changes in the suit premises by breaking the floor of the shop with the intention to fix the tandoor inside the same and the plaintiff is guilty of violating the interim CS NO. 17201/16 HAJI GHAZANFAR ALI VS. MOHD. FAZIL PAGE NO. 7/20 injunction as granted by the Court of Ld. Civil Judge, Delhi and the present suit has been filed by taking advantage of his own wrongs by the plaintiff. n. It has further been submitted by the defendants that the plaintiff who is of 70-80 years of age due to his old age, is not doing any business from the shop in question and his sons are doing/running their separate and independent businesses at different places and the defendants have not carried out any illegal and unwarranted acts due to which the plaintiff was constrained to close the dhaba and thus the defendants are not responsible for any losses having been suffered by the plaintiff on any count. The defendants have denied the earning of the plaintiff @ Rs. 1500/- per day or that any monetary loss for an amount of Rs. 5,77,500/- has been suffered by the plaintiff for the period of one year and 20 days till 08.06.2011. The defendants have further denied that the plaintiffs are entitled to recover compensation for a sum of Rs. 2 Lacs and also an amount of Rs. 3 Lacs towards loss of goodwill.
REPLICATION
3. The plaintiff filed replication denying the averments made by the defendants in their written statement and reiterated the contents of the plaint. ISSUES
4. Vide order dated 18.04.2013, the court had framed the following issues for adjudication which are as under :-
1.Whether the plaintiff is entitled to decree of Rs. 10,77,500/- as damages from defendant as alleged? OPP
2. Whether the plaintiff is entitled to decree of permanent injunction against the defendant in respect of suit property as alleged? OPP
3. Whether plaintiff has not filed proper court fees as alleged? OPD
4. Whether the suit is not maintainable as alleged? OPD
5. Whether the suit is bad for non joinder of necessary party as alleged? OPD
6. Whether the suit has not been properly verified, signed and filed by an authorized or competent person as alleged? OPD CS NO. 17201/16 HAJI GHAZANFAR ALI VS. MOHD. FAZIL PAGE NO. 8/20
7. Whether plaintiff has suppressed material facts from the court, if so, its effect as alleged? OPD
8. Whether there is no cause of action in favour of the plaintiff and against the defendant as alleged? OPD
9. Relief.
EVIDENCE
5. The plaintiff in order to prove his case had examined three witnesses. Mr. Khalid was examined as PW-1 who tendered his evidence by way of affidavit Ex. PW1/A and he relied upon the following documents which are as under :-
S.No Exhibits Documents
1. PW1/1 Site plan
2. PW1/2 Special Power of
Attorney
3. PW1/3 Notice dated 06.12.1972
(Colly) issued by Assistant
Custodian, Jam Nagar,
New Delhi and notice
dated 07.06.2011 issued
by Land & Building
Department of Evacuee
Property cell extn
4. PW1/4 Water charges bill dated
06.07.2005
5. PW1/5 Form K issued under
shop and establishment
dated 29.05.1986
6. PW1/6 Certificate of registration
of eating house dated
02.02.2007
7. PW1/7 House tax bill and LPG
(Colly) connected ext.
8. PW1/8 Challans issued by MCD
(Colly)
9. PW1/9 Complaints to police
(Colly) dated 26.03.2012
10. PW1/10 Reply to RTI application
given by Land &
Building Department
dated 30.09.2011
CS NO. 17201/16 HAJI GHAZANFAR ALI VS. MOHD. FAZIL PAGE NO. 9/20
11. PW1/11 Photocopies of notice of
(Colly) demand dated 08.06.2012
and 17.07.2012 alongwith
receipts of registries and
AD cards.
6. The said witness was duly cross-examined by the Ld. Counsel for the defendants on the subsequent dates.
7. Mr. Hisamuddin was examined as PW-2 who tendered his evidence by way of affidavit Ex. PW2/A and who relied upon only one documents i.e. Voter Identity card exhibited as Ex. PW2/1. The said witness was duly cross-examined by the Ld. Counsel for the defendants.
8. Sh. Nagendra Sah, UDC from Land & Building Department, EP Cell, Vikas Bhawan, New Delhi was examined as PW-3 who was a summoned witness and he brought the summoned record i.e. the reply no. F-580/EP Cell/L & B/RTI/2011-8776 dated 30.09.2011 of the application regsitered as ID 5144/2011 in respect of property (part of Khasra no. 385) Municipal No. 7524-B, Gali Qabron Wali, Qasabpura, Sadar Bazar, Delhi. He also brought the photocopy of the RTI reply in response to the application of the plaintiff registered as ID 5144/2011 which is exhibited as Ex. PW3/A. The said witness was also duly cross-examined by the Ld. Counsel for the defendants and thus vide separate statement of the Ld. Counsel for the plaintiff, PE was closed on 26.02.2019.
9. The defendants in order to prove their case, had examined 4 witnesses. Mr. Mohd. Abid was examined as DW-1 who tendered his evidence by way of affidavit Ex. DW1/A. He relied upon the following documents such as certified copy of the Judgment and Decree dated 18.11.2013 i.e. Ex. DW1/1 (OSR), Photographs of the farsh/floor of the portion of the tenanted property/shop i.e. Ex. DW1/2 (Colly), Certified copy of the order dated 09.12.2011 i.e. Ex. DW1/3 (OSR), Copy of the appeal of the plaintiff which was dismissed vide judgment dated 12.11.2014 i.e. Ex. DW1/4 (OSR), Office copy of the reply dated 30.06.2012 i.e. Ex. DW1/5, Copy of rent agreement dated 20.11.1961 i.e. Ex. DW1/6 (OSR), photocopies of three house CS NO. 17201/16 HAJI GHAZANFAR ALI VS. MOHD. FAZIL PAGE NO. 10/20 tax receipts issued by MCD i.e. Ex. DW1/7 (Colly) (OSR), copy of the statement of the plaintiff i.e. Ex. DW1/8, certified copy of the judgment dated 12.11.2014 passed by the court of Ms. Namrita Aggarwal, ARC, Central, THC i.e. Ex. DW1/9 (OSR) and certified copy of the written statement of the plaintiff in that suit already on record i.e. Ex. DW1/10.
10. The said witness was duly cross-examined by the Ld. Counsel for the plaintiff on subsequent dates.
11. Mr. Vineet Harit, Assistant Public Health Inspector, Health Department, Hindu College, Kashmeri Gate, Delhi was examined as DW-2. He was a summoned witness and he brought the summoned record i.e. the letter dated 28.01.2022 issued by License Club, Health Department, Hindu College, Kashmeri Gate, Delhi i.e. Ex. DW2/1.
12. Mr. Ravi Rai, Section Officer, House Tax NDMC, Kashmere Gate, Delhi was examined as DW-3 who was a summoned witness and brought the summoned record i.e. the three house tax receipts i.e. 575020 dated 17.02.2001, 575092 dated 27.02.2001 and 1126923 dated 23.12.2004 in the name of Mr. Naseeruddin issued by NDMC i.e. Ex. DW3/1, DW3/2 and DW3/3.The said witness was also duly cross- examined by the Ld. Counsel for the plaintiff.
13. Mr. Nagendra Sah, Senior Assistant, Land & Building Department, EP Cell, Vikas Bhawan, New Delhi was examined as DW-4 who was a summoned witness. He brought the summoned record i.e. rent receipt bearing no. 14498 dated 20.12.1989 and receipt no. 15103 dated 01.06.1990 in respect of property bearing no. XIV/KH No. 385, Qasab Pura and the same is exhibited as Ex. DW4/A (OSR). The said witness was duly cross-examined by the Ld. Counsel for the plaintiff and vide order dated 22.12.2022, DE was closed and the matter was listed for final arguments.
Findings Issue no. 1: Whether the plaintiff is entitled to decree of Rs. 10,77,500/- as damages from defendant as alleged? OPP CS NO. 17201/16 HAJI GHAZANFAR ALI VS. MOHD. FAZIL PAGE NO. 11/20
14. The plaintiff in the plaint has contended that the plaintiff was running a dhaba from about 50-60 years uninterruptedly from plot no. 7524-B, Gali Quabronwali, Qasabpura, Sadar Bazar, Delhi-06 when the defendants, his father and some gunda type persons came to the shop/dhaba of the plaintiff on 17.05.2011 at about 3:00 to 3:30 PM of the plaintiff, when the plaintiff, his sons and labour were doing the repairs of tandoor and that the defendant no. 2 has threatened the plaintiff that he cannot install the tandoor and to close the shop/dhaba immediately and the defendants have tried to throw the utensils and they also tried to manhandle the plaintiff and his sons. It has further been contended that the defendants always tried to stop the dhaba for the purpose of compelling the plaintiff to leave the shop due to fear of the defendants and their associates/company. That the defendants used to terrorize the plaintiff through local police and the illegal, unlawful and arbitrary acts of the defendant are in violation of the constitutional rights of the plaintiff. It has further been contended that due to illegal and unwarranted acts of the defendants and their fellows, the plaintiff was constrained to close the dhaba which was running since last about 50 years uninterruptedly and due to the illegal acts of the defendants, the plaintiff has suffered huge loss in the form of money and has also suffered the loss of reputation/goodwill besides mental agony and the defendants are responsible for the losses caused to the plaintiff due to their illegal acts. That the plaintiff alongwith his three sons was earning the livelihood for the entire family and that the earning of the plaintiff was about Rs. 1500/- per day after deducting all the expenses like material, labour charges etc. The plaintiff has accordingly sought the recovery for an amount of Rs. 10,77,500/- as damages against the defendants stating that the plaintiff has suffered monetary loss of Rs. 5,77,500/- for the period of 1 year and 20 days till 08.06.2011. Besides the aforesaid, an amount of Rs. 2,00,000/- is sought to be recovered towards mental agony. The plaintiff has also sought recovery of an amount of Rs. 3 Lacs caused towards the loss of goodwill of the plaintiff. It has been contended by the plaintiff that the land on which the dhaba is situated belongs to the custodian department of Government and also that the defendants are also residing in CS NO. 17201/16 HAJI GHAZANFAR ALI VS. MOHD. FAZIL PAGE NO. 12/20 the same plot bearing no. 7524-B, Gali Quabronwali, Qasabpura, Sadar Bazar, Delhi-110006. That there are so many occupants in plot no. 7524-B, Gali Quabronwali, Qasabpura, Sadar Bazar, Delhi-110006 and the entire plot belongs to the custodian department of the government. That all other occupants of the land in question were depositing the rent through the father of the defendants till October-2008 and when the plaintiff and other occupants came to know that the land belongs to custodian department comprising in plot no. 7524-B, Gali Quabronwali, Qasabpura, Sadar Bazar, Delhi-110006 and the plaintiff has stopped to make the payment of rent to the father of the defendants then the defendants, their father and other relatives have started to harass the plaintiff by one way or the other. The defendant has filed his written statement stating that the suit premises/shop is lying closed since long as the plaintiff is not doing any business from the past one and a half years prior to filing of the suit of permanent injunction by the father of the defendants and also that there is no interference on the part of the defendants in as much as running of the dhaba. It has been further submitted by the defendant that the plaintiff has admitted himself to be a tenant under the landlordship of Late Sh. Nasiruddin who was the father of the present defendants in the written statement filed by the plaintiff in the suit filed by the father of the defendants.
15. It has been submitted by the defendants that the grandfather of the defendants Sh. Amir Baksh was the allottee of the land in quesiton on which the dhaba is situated and after his demise, the father of the defendants and thereafter the demise of the father of the defendants, the defendants have inherited the allotment of the land in question and that father of the defendants had let-out the said shop/dhaba admeasuring 46 sq yds to the plaintiffs.
16. The plaintiff who has claimed an amount of Rs. 10,77,500/- was thus required to prove that due to the illegal actions of the defendants, the plaintiff was unable to carry on the business of dhaba and was constrained to close the same thereby inflicting monetary loss of Rs. 5,77,500/-. The plaintiff was further required to prove that the plaintiff suffered mental agony and also damages towards the loss of CS NO. 17201/16 HAJI GHAZANFAR ALI VS. MOHD. FAZIL PAGE NO. 13/20 goodwill. The plaintiff in order to prove the aforesaid has relied upon the testimony of PW-1 i.e. the son of the plaintiff and PW-2 who is the neighbour of the plaintiff.
17. In the cross-examination, PW-1 has admitted that his father i.e. Haji Ghazanfar Ali was ill between the year-2007-2009. PW-1 has further admitted that the license of the suit shop was renewed only till the year-2007 and the same has not been renewed thereafter by the MCD. PW-1 has further admitted that he has not filed any document to show the income of Rs. 1500/- per day as claimed by the plaintiff who has further admitted that he has no document to show that the dhaba was working from the year-2007 till 2010. PW-1 has further admitted in the cross-examination that he has no documents in respect of the turnover of the business of the dhaba. PW-1 in his cross-examination has also admitted that the plaintiff has not paid upto date water charges to Delhi Jal Board in respect of the dhaba and has also admitted that the license/registration certificate for running the shop/dhaba under Delhi Shops and Establishment Act, 1954 was valid upto the year-2007 and the same has not been got renewed after the year-2007. So much so, the PW-2 had also admitted that the plaintiff has not filed any application for the renewal of the license of the shop/dhaba under Delhi Shops and Establishment Act, 1954. PW-1 in his cross-examination has also admitted that his father had stopped coming to the shop and that he being the son was maintaining the shop.
18. Although PW-1 in his examination-in-chief has stated that the plaintiff due to his old age and old age diseases, is not fit to depose before the court as he is suffering from forgetness, PW-2 in his cross-examination has stated that the plaintiff is having good health and is regularly coming to his shop to purchase bread, milk etc. And that he knows the plaintiff since his childhood. PW-2 has further admitted that he has come to the court to give the statement at the instance of the plaintiff.
19. Thus, from the aforesaid testimonies of the witnesses, it is clear that the plaintiff has not been able to prove that in fact a dhaba was operating/working since the year-2007. The plaintiffs from the testimonies of PW-1 and PW-2 are also not able to prove that an income of Rs. 1500/- was being generated from the operation of CS NO. 17201/16 HAJI GHAZANFAR ALI VS. MOHD. FAZIL PAGE NO. 14/20 the dhaba in question. From the testimony of PW-1, it is evident that the plaintiff who was operating the dhaba fell ill between the year-2007 to 2009. Since the plaintiff had not been operating the dhaba hence, the licenses were not got renewed after the year-2007 by the plaintiff either from MCD for running the dhaba or under the Delhi Shops and Establishments Act, 1954 and neither any application for renewal of the licenses was filed by the plaintiff with the concerned departments. So much so, as per the testimony of PW-1, the plaintiff was in arrears of the water charges and also had not paid the electricity charges who has clearly admitted that the plaintiffs had stopped coming to the shop and the same was being maintained by the son of the plaintiff. Thus, the plaintiffs have failed to prove that dhaba was being run from the year 2007-09 or that it was generating any income to the tune of Rs. 1500 per day hence, the plaintiffs are not entitled to the recovery of an amount of Rs. 10,77,500/- claimed towards losses suffered by the plaintiff on account of closure of the dhaba. The plaintiff has not produced any documents or have examined any witness which goes to show that how mental agony or loss of goodwill was caused to the plaintiff who has not been able to demonstrate the running of the dhaba since the year-2007 and as aforesaid. Accordingly, the issue is decided against the plaintiff and in favour of the defendants.
Issue no. 2 : Whether the plaintiff is entitled to decree of permanent injunction against the defendant in respect of suit property as alleged? OPP
20. The onus to prove the said issue was upon the plaintiff. The plaintiff, in order to discharge the said onus was required to prove that the dhaba was running from the suit premises and that defendants have interfered in the running of the dhaba. While deciding issue no. 1, a finding has been given that the plaintiff has not been able to show that he was running his dhaba between the year-2007-2009 since he remained ill during that period. It has further been admitted by PW-1 that the license of the suit shop was renewed only till the year-2007 and the same has not been renewed thereafter by the MCD. The defendant on the other hand has proved on record the judgment and decree dated 18.11.2013 whereby the suit as filed by the defendant CS NO. 17201/16 HAJI GHAZANFAR ALI VS. MOHD. FAZIL PAGE NO. 15/20 herein (Sh. Nasiruddin (deceased) through Lrs vs. Sh. Haji Ghazanfar) was decreed in favour of the defendant herein and the plaintiff herein was restrained from carrying out addition, alteration or structural change in the suit property i.e. property forming part of property no. 7524/B, Gali Kabron Wali, Qasabpura, Quresh Nagar, Sadar Bazar, Delhi-06. The said judgment dated 18.11.2013 duly considered the repair of the tandoor and also the aspect of its installation and re-installation and also of the interference in the business of the defendant (plaintiff herein). Vide the aforesaid judgment, it has been held that the plaintiff herein admittedly made alteration in the suit premises without seeking permission of the plaintiff and the same cannot be done. The said judgment has been passed by the court on 18.11.2013 i.e. after the filing of the present suit which has been instituted on 20.10.2012. It is pertinent to mention that in the earlier suit as filed by the predecessor-in-interest of the present defendant, an application under Order 39 Rule 1 and 2 CPC was filed by the plaintiff herein (defendant in suit no. 138/11) seeking restraining of the plaintiff from interfering in the peaceful enjoyment of the suit property i.e. property bearing no. 7524/B, Gali Kabron Wali, Qasabpura, Quresh Nagar, Sadar Bazar, Delhi-06 alleging loss of earning which application was dismissed by the court vide order dated 21.03.2013. Thus, since a decree dated 18.11.2013 has been passed thereby restraining the plaintiff in the present suit from carrying out addition, alteration or structural change in the suit property i.e. property forming part of property no. 7524/B, Gali Kabron Wali, Qasabpura, Quresh Nagar, Sadar Bazar, Delhi-06 duly taking into consideration the structural alterations involving the repair of the tandoor and also of the aspect of its installation and re-installation which has attained finality hence, it cannot be said that any illegal interference or unwarranted acts have been committed by the defendants leading to the closure of the dhaba and accordingly the plaintiff is not entitled to a decree of permanent injunction in respect of the suit property as prayed for against the defendant. Accordingly, this issue is decided against the plaintiff and in favour of the defendant.
Issue no. 3: Whether plaintiff has not filed proper court fees as alleged? OPD CS NO. 17201/16 HAJI GHAZANFAR ALI VS. MOHD. FAZIL PAGE NO. 16/20
21. The onus to prove the said issue was upon the defendant. The plaintiff has valued the suit for the recovery of damages at Rs. 10,77,500/- on which ad volerum court fees of Rs. 12,900/- has been affixed. The suit for the relief of permanent injunction has been valued at Rs. 130/- on which the requisite court fees has been affixed. Although, the defendant has taken an objection in the written statement that the appropriate ad volerum court fees has not been paid however, the same is not substantiated from the record. The defendant has not specified as to how the court fees affixed by the plaintiff is deficient nor the defendant has specified any other valuation of the suit. Accordingly, the defendant has failed to prove that the plaintiff has not filed proper court fees. Accordingly, this issue is decided against the defendant and in favour of the plaintiff.
Issue no. 4: Whether the suit is not maintainable as alleged? OPD and Issue no. 8: Whether there is no cause of action in favour of the plaintiff and against the defendant as alleged? OPD are taken together.
22. The onus to prove the said issue was upon the defendant. The plaintiff in view of the findings returned on Issue no. 1 and 2 has not been able to prove on record that the plaintiff had been operating the dhaba hence, the licenses were not got renewed after the year-2007 by the plaintiff either from MCD for running the dhaba or under the Delhi Shops and Establishments Act, 1954 and neither any application for renewal of the licenses was filed by the plaintiff with the concerned departments. So much so, as per the testimony of PW-1, the plaintiff was in arrears of the water charges and also had not paid the electricity charges who has clearly admitted that the plaintiffs had stopped coming to the shop and the same was being maintained by the son of the plaintiff. The defendant has proved on record the order dated 09.12.2011 (Ex. DW1/3) whereby the defendant (plaintiff herein) was restrained from carrying out any addition, alteration, structural changes and construction in the suit property. The defendant was also able to prove on record that the judgment and decree dated 18.11.2013 passed in favour of the defendant herein whereby the plaintiff herein has CS NO. 17201/16 HAJI GHAZANFAR ALI VS. MOHD. FAZIL PAGE NO. 17/20 been restrained from carrying out addition, alteration or structural change in the suit property i.e. property forming part of property no. 7524/B, Gali Kabron Wali, Qasabpura, Quresh Nagar, Sadar Bazar, Delhi-06. The aforesaid judgment and decree had been passed by the court of the Ld. Civil Judge duly taking into consideration the structural alterations involving the repair of the tandoor and also of the aspect of its installation and re-installation which has attained finality. Hence, it cannot be said that any illegal interference or unwarranted acts have been committed by the defendants leading to the closure of the dhaba. The action of the plaintiff in as much as seeking to repair/re-install the tandoor on 17.05.2011 and 24.03.2012 without obtaining the consent of the defendant herein was clearly in violation of the rights of the defendant herein being the landlord and accordingly vide judgment and decree dated 18.11.2013, the plaintiff herein was restrained from carrying out any addition, alteration and structural changes in the suit premises. It is not the case of the plaintiff that any interference has been caused by the defendants in the running of the dhaba after the passing of the judgment and decree dated 18.11.2013 as passed by the Ld. Civil Judge or that any interference has been made by the defendant which is beyond the contours of the judgment and decree dated 18.11.2013 as passed by the Ld. Civil Judge. In view of the aforesaid and in view of the judgment and decree dated 18.11.2013, the present suit is devoid of any cause of action and the present suit is held to be not maintainable. Thus, both the issues are decided in favour of the defendant and against the plaintiff.
Issue no. 5: Whether the suit is bad for non joinder of necessary party as alleged? OPD
23. The onus to prove the said issue was upon the defendant. The plaintiff has filed the present suit claiming that due to illegal and unwarranted acts of the defendant, the plaintiff was constrained to close the dhaba. Vide para 7, it has been contended by the plaintiff that the plaintiff has been terrorized through local police. The plaintiff has not made the concerned SHO as a party to the present suit, accordingly, it has been contended by the defendant that the SHO is a necessary CS NO. 17201/16 HAJI GHAZANFAR ALI VS. MOHD. FAZIL PAGE NO. 18/20 party to the present suit and the suit is thus not maintainable. Perusal of the record shows that primarily allegations have been levelled against the defendant which as per the plaintiff on 17.05.2011 raised objections for the installation of the tandoor and as per the plaintiff due to the illegal acts of the defendant, the plaintiff was constrained to close the dhaba. In the opinion of the court, the presence of the SHO and his impleadment in the present matter is not necessary to adjudicate the present suit since primarily allegation have been levelled against the defendants herein. Accordingly, the present issue is decided against the defendant and in favour of the plaintiff since all the necessary parties have been impleaded in the present suit.
Issue no. 6: Whether the suit has not been properly verified, signed and filed by an authorized or competent person as alleged? OPD
24. The present suit has been filed by the plaintiff through his special attorney i.e. Sh. Mohd. Khalid who is the son of the plaintiff. Mohd. Khalid has duly proved on record the special power of attorney dated 25.02.2012 clause (3) thereof authorises the special power of attorney through whom the plaint has been filed to file cases for and on behalf of the plaintiff. During cross-examination, nothing substantial could be extracted from PW-1. Accordingly, the present issue is decided in favour of the plaintiff and against the defendant since the plaint has been filed, verified and signed by the duly authorized attorney of the plaintiff.
Issue no. 7: Whether plaintiff has suppressed material facts from the court, if so, its effect as alleged? OPD
25. The onus to prove the said issue was upon the defendants. The plaintiff has filed the present suit against the defendants subsequent to the suit as filed by the predecessor-in-interest of the present defendant i.e. Sh. Nasiruddin against the plaintiffs in the present suit. Vide order dated 09.12.2011, the court of the Ld. Civil Judge restrained the defendant i.e. the plaintiff in the present suit, from carrying out any addition, alterations, structural changes and construction in the suit property. In the entire plaint which has been filed on 20.10.2012, the plaintiff has not disclosed about passing of any interim orders i.e. orders dated 09.12.2011 whereby the CS NO. 17201/16 HAJI GHAZANFAR ALI VS. MOHD. FAZIL PAGE NO. 19/20 defendant (plaintiff herein) being the admitted tenant was restrained from carrying out any addition, alterations, structural changes and construction in the suit property and also from parting with the possession and creating third party interest in the suit property till the final disposal of the suit. The plaintiff has also not disclosed that in the said suit, the defendant (plaintiff herein) vide his written statement filed in the suit bearing no. 138/2011 had admitted to have made alterations etc. without seeking permission of the plaintiff (defendant herein). Accordingly, the plaintiff is guilty of concealing of material facts from the court who was duty bound to disclose all the material facts and circumstances under which the present suit has been filed. Hence, this issue is decided in favour of the defendant and against the plaintiff.
26. In view of the same, the present suit as filed by the plaintiff is hereby dismissed.
27. File be consigned to record room after necessary due compliance.
(The judgment contains 20 pages) Sachin Sood
Digitally signed
DJ-01,
SACHIN Central,
SOOD THC
by SACHIN
Delhi, 31.01.2025
SOOD Date:
2025.02.01
17:13:15 +0530
CS NO. 17201/16 HAJI GHAZANFAR ALI VS. MOHD. FAZIL PAGE NO. 20/20