Delhi High Court
Shri. Hem Chand Jain vs Shri Anil Kumar And Others on 23 March, 1992
Equivalent citations: AIR1993DELHI99, 1992(23)DRJ105A, AIR 1993 DELHI 99, (1992) 2 RRR 247, (1992) 46 DLT 690, (1992) 2 CURCC 478, (1992) 23 DRJ 105
Author: D.K. Jain
Bench: D.K. Jain
ORDER
1. This revision petition is directed against the appellate order dated 15 Nov. 1990 of the Id. Addl. Senior Sub Judge, Delhi, made in M.C.A. No. 31 of 1990, allowing the appeal against the order dated 6 April, 1987 of a Id. Sub Judge and setting aside the latter's order, made in Suit No. 473 of 1986 on application under O. 39, Rules 1 and 2 of the Civil P.C. (for short the Code) directing to maintain status quo till the decision of the suit.
2. Plaintiff, Hem Chand, claiming to be in possession of half portion of ground floor of premises bearing No. 1053, Lal Kuan, Delhi for 23 years doing business in the name and style of M/s Lal Kuan Coal Co., without let or hindrance by the two defendants, Anil and Sunil Kumar or anyone else or paying any rent, filed the suit for permanent injunction restraining the defendants from dispossessing the plaintiff or interfering in his peaceful possession of the portion shown red in the plan annexed with the plaint. An application under Order 39, Rules 1 and 2 of the Code was also filed along with it for interim orders.
3. The suit was resisted on diverse pleas, inter alia, denying plaintiff's possession, stating that the defendants' father Tara Chand had taken the entire ground floor on rent from M/s Tulsibhai Goverdhanbhai Patel Bin Merchants, for carrying on his business in the name of M/s Kumar Traders; Tara Chand, however, entered into an arrangement with one Nem Chand to share a part of the premises on the ground floor. The said Nem Chand used to carry on coal business in that portion; paid a sum of Rs. 200/- per month to the said Tara Chand for its user regularly till 1981; the property was purchased by defendant No. 1 Anil Kumar on 15 Nov. 1979; the plaintiff and Nem Chand are close relations and for some time in the past the plaintiff used to attend business along with the said Nem Chand. Some other pleas regarding non-maintainability of suit being barred under the Specific Relief Act, the plaint being liable to rejection for not disclosing cause of action and the. plaintiff having no cause of action and not entitled to the relief claimed in the suit were also raised, on which issues have since been framed.
4. After hearing the application under Order 39, Rules 1 and 2 of the Code for interim relief, the Id. trial Court vide its order dated 6 April, 1987 observed that the plaintiff was in possession since 1963, had a license, issued in 1963, which continued to be renewed for running coal business in the premises, found a prima facie case and balance of convenience in plaintiff's favor and directed status quo to be maintained till the final decision of the suit,
5. On appeal, the Id. Appellate Court vide its order dated 15 Nov. 1990, set aside the order dated 6 April, 1987 of the trial Court. This revision petition seeks setting aside of the order in appeal and for restoration of the trial Court's order dated 6 April, 1987.
6. I have heard the Id. counsel for the parties and have gone through the records and I am of the view that there is good ground to allow the revision petition.
7. It appears that the plaintiff has been running coal business in the portion of the premises on ground floor in his occupation. He has placed on record a copy of the license issued by the Civil Supplies department under the Coal Control Order, 1963, issued to him in the name of M/s Lal Kuan Coal Co.; 1053 Lal Kuan, Delhi, valid from 7 July, 1971 and renewed up to 31 December 1990. The license bears the licensee's photograph. It indicates that the plaintiff is not a sheer stranger but is connected with the business in the said premises. The defendants denying plaintiff's possession, as a part of their defense do not deny plaintiffs connection with the premises and instead they admit that the plaintiff was doing that business "for some time in the past" but with one Nem Chand --allegedly inducted in the premises by their father Tara Chand, on payment of Rs. 200/-per month, who according to them had been paying so till 1981. This plea of the plaintiff coming on the scene through the said Nem Chand is denied by the plaintiff in his replication and nothing is pointed out as placed on record to support defendants' version on the point. Thus, the learned trial Court's finding, on a prima facie view of the matter, that the plaintiff has been in prolonged possession since 1963, in the absence of anything to the contrary on record to support the defendants' plea, is well based and in fact has not been rejected or upset by the learned Appellate Court.
8. The learned Appellate Court conceding plaintiff's "prolonged possession" has set aside the trial Court's order on two grounds namely; firstly, the plaintiff on his own saying is a trespasser as he claims to be in adverse possession for 23 years, maturing in his ownership and being a trespasser is not entitled to the relief of injunction against the owners; and secondly, that the plaintiff has not come to the Court with clean hands; had no cause of action, made a fictitious one by interpolation of dates at the foot of the plaint and in verification.
9. On the first ground reliance is placed in the impugned order on the case of K. V. Narayan v. S. Sharan Gowda, and it has been forcefully urged by the learned counsel for the defendants that the plaintiff being a trespasser is not entitled to the equitable relief of injunction and the trial Court's order has been rightly set aside.
10. There is no dispute with the proposition laid in the said authority. In fact the question and the extent of protection to be given to a person in possession, who has no legal right to remain there has been the subject-matter of examination in quite a number of judicial pronouncements, some of which have been noticed in the Karnataka authority and more recently by the Supreme Court in Krishna Ram Mahal v. Mrs Shobha Venkat Rao, .
11. The sum total appears to be that relief of injunction being a relief in equity, the court would not aid a person who himself is guilty of doing a wrongful act and has trespassed into suit property recently; or where the owner has acquiesced or been a party to his induction. The real owner is entitled to defend illegal occupation of his property and may throw out the trespasser during the "act and process" of trespassing. But where the possession of such a person has been peaceful, long, anterior or accomplished and he has been in settled possession of the property, with no right to remain in possession or has acquired ownership by adverse possession, he cannot be ousted or dispossessed by the owner of the property except by recourse to law.
12. As noticed earlier, in the present case, the plaintiff has been in occupation of the premises in question doing business there for long, may be since 1963 when he obtained license from the authority concerned to do that business. The factum of anterior possession of the plaintiff is indicated in the defense in the written statement. It has been found to be long one by the learned trial Court. This "prolonged possession" is not disputed by the learned Appellate Court as well. Thus, the judgment of the Karnataka High Court in K.V. Narayan's case (supra) is clearly distinguishable on facts (see para 16) and the instant case is fully covered by the Supreme Court's pronouncement in Krishna Ram Mahal's case (supra). No fault can, therefore, be found with the trial court's direction to maintain status quo till the final decision of case by it. It finds support from a judgment of this court in Smt. Shakuntla v. Hira Nand Sharma, . The learned Appellate Court's refusal to confirm trial court's order, therefore, does call for interference under Section 115 of the Code.
13. As for the second ground, it is pleaded in paras 7 and 8 of the plaint that on 28th and 29th Oct. 1984, the defendants threatened to forcibly dispossess the plaintiff, which threat still continues, the same is in force and the plaintiff has a cause of action to sue for injunction.
14. Mr. Y.K. Jain, learned counsel for the defendants, supporting the impugned order, has urged that the plaint appears as typed on 18 Oct. 1984, there has been interpolation as the date " 18" at the foot of the plaint is changed to "30" by overwriting subsequently, to create a cause of action on the hand written dates 28th and 29th Oct.
1984 in paras 7 and 8 of the plaint, there in fact was no cause of action on 18 Oct. 1984 on which date the plaint was typed and as such as the plaintiff is not entitled to injunction. I do not agree. As to when the typed dated "18" at the foot of the plaint and in verification was changed by handwriting to appear as "30" before or after filing of the suit is not indicated. In any case, there being an issue framed on the plea in defense relating to cause of action to be decided by the trial Court, I would not like to express any view one way or the other on it at this stage. Suffice it to say, as the plaint, duly corrected in hand, stands, it cannot be said that it does not disclose a cause of action.
15. I am in agreement with the view taken on the matter by the trial Court and feel that the learned Appellate Court has gone wrong in law in not confirming it and come to a finding unsupported by law.
16. The result, therefore, is that the revision petition is accepted. The impugned order of the learned Appellate Court is set aside and that of the trial Court, directing the parties to maintain status quo in respect of the suit property tilt the final decision of the suit is restored, with no order as to costs.
17. Parties are directed to appear before the trial court on 6 April, 1992 for further proceedings. The trial Court would thereafter expedite proceedings in the suit.
18. The record of the trial Court be sent back forthwith.
19. Petition allowed.