Delhi District Court
Rajesh Gaba & Ors. vs . Rajesh Nair on 17 May, 2019
IN THE COURT OF SH. RAJINDER KUMAR, JSCC-CUM-
ASCJ-CUM-GUARDIAN JUDGE (WEST): DELHI
Suit No. 9656/16
1. Sh. Rajesh Gaba
S/o late Sh. Nand Lal,
R/o B-3/200, Paschim Vihar,
New Delhi - 1100063.
2. Sh. Rakesh Gaba
S/o late Sh. Nand Lal,
R/o B-3/200, Paschim Vihar,
New Delhi - 1100063.
3. Mrs. Neena Panjwani,
W/o Sh. H. K. Panjwani,
R/o 693, Pocket-1,
Paschim Puri,
New Delhi-110063.
4. Mrs. Soniya
W/o Sh. Bharat Kursija,
R/o B-4, Block189-C,
Lawrence Road,
New Delhi.
5. Mrs. Seema
W/o Sh. Rajesh Kalra,
R/o 295, Paschim Vihar Ext.,
New Delhi-63.
6. Mrs. Ganga Devi
W/o lae Sh. Nand Lal,
R/o B-3/200, Paschim Vihar,
New Delhi-110063.
Rajesh Gaba & Ors.Vs. Rajesh Nair
Suit No. 9565/16 Page no. 1/13
(Plaintiff no. 2 to 6 through their SPA and authorized
representative Sh. Rajesh Gaba, plaintiff no. 1).
.........Plaintiffs
Versus
Sh. Rajesh Nair
S/o Sh. Kewal Kishan,
R/o GH-13/832, Paschim Vihar,
New Delhi - 1100063. ...... Defendant
Date of filing of the suit : 07.11.2006
Date of reserving judgment : 03.05.2019
Date of pronouncement : 17.05.2019
JUDGEMENT
1. Vide this judgment, I shall decide the present suit for eviction, possession, declaration, damages, permanent and mandatory injunction.
2. The brief facts of the case as per the plaintiffs are that shop no. G-13 B, Mahavira Tower, Plot no.32-33, A-2 Block, Commercial complex, Paschim Vihar, New Delhi was allotted in the name of father of plaintiff no.1 to 5 vide license dated 29.03.1990 by M/s Jaina Properties Pvt. Ltd and he took possession and occupied the said shop after payment. That Rajesh Gaba & Ors.Vs. Rajesh Nair Suit No. 9565/16 Page no. 2/13 the father of plaintiff no.1 to 5 expired on 01.06.1998. But the plaintiffs continued to be in actual, physical and lawful possession of the same, which the defendant has now occupied illegally and unlawfully by playing fraud upon plaintiffs. That the defendant under his evil designs has shown the said shop as shop no.G-10. That the plaintiffs were in continued and uninterrupted possession of the said shop till the time defendant broke the lock of said shop. That the defendant also stole all the goods belonging to the plaintiffs. That the shop no. 10 is not adjacent to shop no. 13A and is separated by shop no. G-8 and G-9. That the defendant has illegally occupied shop no. 13B by breaking its locks. That the said incident was witnessed by Mr. Rakesh Gandhi and Mr. Mukesh Sharma. That the defendant is now showing shop no. G-13 B as shop no. G-10. That the defendant broke the wall separating the shop no. G-13 A and shop no.G-13 B and merged the shop no. G-13 B in shop no. G-13 A and G 12. That the defendant is now claiming the shop belonging to plaintiffs i.e. the shop no. G-13 B as shop no. G 10 by misusing the documents of shop no. G-10. That the shop no. G-10 is away from the shop no. G-13A.
3. In the written statement filed by the defendant, certain preliminary objections are taken like that the plaintiffs have not come with clean hands, the suit is not maintainable as per Section 6 of Specific Relief Act, suit is bad for mis- joinder of parties and also that the suit is without cause of Rajesh Gaba & Ors.Vs. Rajesh Nair Suit No. 9565/16 Page no. 3/13 action. It is also pleaded that as per admission of plaintiffs, their father was licensee under M/s Jaina Properties.
4. No replication was filed by the plaintiffs to the written statement of the defendant
5. From the pleadings of the parties, following issues were framed on 10.02.2010 :-
1. Whether the plaintiffs have not come with clean hands?
OPD
2. Whether the suit is barred under Section 5 of the Specific Relief Act?OPD
3. Whether the suit is bad for mis-joinder of necessary parties?OPD
4. Whether the suit is barred by Section 10 of CPC?OPD
5. Whether the suit is barred under Order 7 Rule 11 CPC? OPD
6. Whether the suit has become infructuous?OPD
7. Whether the suit is not properly valued and sufficient court fee has not been affixed thereon?OPD Rajesh Gaba & Ors.Vs. Rajesh Nair Suit No. 9565/16 Page no. 4/13
8. Whether the plaintiffs are entitled to a decree for eviction against the defendant as prayed for ?OPP
9. Whether the plaintiffs are entitled to a decree for possession against the defendant as prayed for ?OPP
10. Whether the plaintiffs are entitled to a decree for declaration against the defendant as prayed for ?OPP
11. Whether the plaintiffs are entitled to a decree for damages against the defendant as prayed for? OPP, if yes, at what rate and for which period.
12. Whether the plaintiffs are entitled to a decree for mandatory and permanent injunction against the defendant as prayed for? OPP
13. Relief.
6. In order to prove their case, the plaintiffs got examined the plaintiff no. 1 as PW-1, who during his examination-in-chief relied upon certain documents i.e. Ex. PW1-A to Ex. PW1/J. PE was closed on 19.09.2018.
The defendant got examined himself as DW-1 in support of his pleadings, who relied upon various documents i.e. Ex. DW1/1 to Ex. DW1/6 and DE was closed on 20.12.2018.
Rajesh Gaba & Ors.Vs. Rajesh Nair Suit No. 9565/16 Page no. 5/13 Issue-wise findings are as under :
ISSUE NO. 1 :-
"Whether the plaintiffs have not come with clean hands?OPD
7. The onus to prove this issue was upon the defendant, who pleaded that the plaintiffs have not come before the Court with clean hands. The whole of the written statement is silent as to on what basis it can be stated that the plaintiffs have not come with clean hands. There is also nothing on record to suggest how the plaintiffs have come with unclean hands.
In the absence of the same, the Court cannot presume anything in this regard. The issue is decided accordingly against the defendant and in favour of the plaintiff.
ISSUE NO. 2 and 4 :-
"Whether the suit is barred under Section 5 of the Specific Relief Act?OPD Whether the suit is barred by Section 10 of CPC?OPD"
8. Both the issues are taken up together as te same are inter-connected. The onus to prove the same was upon the defendant, who has pleaded that the suit was not maintainable as per Section 6 of Specific Relief Act. It is also pleaded that the defendant has already filed a suit for permanent Rajesh Gaba & Ors.Vs. Rajesh Nair Suit No. 9565/16 Page no. 6/13 injunction, pending before Ld. Civil Judge and that no fresh suit is maintainable.
So far as the issue no. 2 is concerned, Section 6 of Specific Relief Act, 1963 makes it mandatory that no suit shall be brought after the expiry of six months from the date of dispossession. Admittedly, the plaintiff were dispossessed on 25.03.2006 and the suit was filed only on 07.11.2006 i.e. beyond the six months period.
So far as the issue no. 4 is concerned, it is stated in para no. 4 of the evidence affidavit by the defendant (DW-1) that the suit for permanent injunction was disposed off by Ld. Civil Judge on 02.12.2016.
Accordingly, the Court has no hesitation in holding that the defendant has failed to prove the said issues. Both the issues are decided against the defendant and in favour of the plaintiffs.
ISSUE NO. 3 :-
"Whether the suit is bad for mis-joinder of necessary parties?OPD
9. The onus to prove this issue was upon the defendant, who has pleaded that the plaintiffs have not made party the original owner of the shop in question i.e. M/s Jaina Properties nor they made party, who had sold the shop in question to the defendant.
There is no replication filed by the plaintiffs to the written statement filed by the defendant. As per para no. 2 of Rajesh Gaba & Ors.Vs. Rajesh Nair Suit No. 9565/16 Page no. 7/13 the plaint, their father was licensee by way of allotment dated 29.03.1990 by M/s Jaina Properties. In para no. 3, it is pleaded by the plaintiffs that the suit property was purchased by their father. The plaintiffs have not placed on record any title document like sale deed but has a license deed (Ex. PW1/1). Hence, in the absence of registered title documents, it cannot be presumed that the father of the plaintiffs had purchased the suit shop from M/s Jaina Properties. The plaintiffs did not join M/s Jaina Properties to establish their claim/title over the suit property.
In view of above, this issue is decided in favour of the defendant and against the plaintiffs.
ISSUE NO. 5 :-
"Whether the suit is barred under Order 7 Rule 11 CPC?OPD"
10. The onus to prove this issue was upon the defendant, who has pleaded that the suit is without any cause of action and is not maintainable under Order 7 Rule 11 CPC.
In para no. 6 of the plaint, it is pleaded by the plaintiffs that upon knowing on 25.03.2006, the breaking of lock and illegal occupation of his shop by the defendant, he made a complaint to the police.
As per Section 6 of Specific Relief Act, no suit can be instituted after the expiry of six months from its dispossession. The cause of action has arisen on 25.03.2006 Rajesh Gaba & Ors.Vs. Rajesh Nair Suit No. 9565/16 Page no. 8/13 itself but the present suit was filed only on 07.11.2006 i.e. beyond a period of six months.
Hence, the issue is decided in favour of the defendant and against the plaintiffs.
ISSUE NO. 6 :-
"Whether the suit has become infructuous? OPD
11. The onus to prove this issue was upon the defendant. There is nothing pleaded by the defendant nor has argued on this issue. The defendant has failed to prove this issue.
Hence, the same is decided against the defendant and in favour of the plaintiffs.
ISSUE NO. 7 :-
"Whether the suit has not been properly valued and sufficient court fee has not been affixed thereon? OPD"
12. The onus to prove this issue was put upon the defendant. It is pleaded by the defendant that the plaintiffs have not paid the ad-valorem Court fee on the value of the shop, which is on the higher side.
Per contra, the plaintiffs have valued the suit for the relief of possession to Rs. 2 lacs, for damages at Rs. 90,000/-, declaration at Rs. 200/-, permanent injunction and mandatory Rajesh Gaba & Ors.Vs. Rajesh Nair Suit No. 9565/16 Page no. 9/13 injunction at Rs. 200/- each. The defendant has not filed any valuation report on record to show as to what was the exact valuation on the day of filing of the suit, if the one done by the plaintiffs was incorrect.
Accordingly, the issue is decided against the defendant and in favour of the plaintiffs.
ISSUE NO. 8 to 12"Whether the plaintiffs are entitled to a decree eviction against the defendant as prayed for ? OPP Whether the plaintiffs are entitled to a decree for possession against the defendant as prayed for ? OPP Whether the plaintiffs are entitled to a decree for declaration against the defendant as prayed for ? OPP Whether the plaintiffs are entitled to a decree for damages against the defendant as prayed for?OPP, if yes, at what rate and for which period.
Whether the plaintiffs are entitled to a decree for mandatory and permanent injunction against the defendant as prayed for? OPP"
13. All the issues are taken up together as the same inter-connected. The onus to prove the issues was upon the plaintiffs. It is the plea of the plaintiffs that the shop no. G-13 B Rajesh Gaba & Ors.Vs. Rajesh Nair Suit No. 9565/16 Page no. 10/13 was alloted in the name of father of the plaintiff no. 1 to 5 vide license dated 29.03.1990 by M/s Jaina Properties Pvt. Ltd. It is also pleaded that the plaintiffs continued to be in actual, physical and lawful possession of the same, which the defendant has now occupied illegally and unlawfully by playing fraud upon plaintiffs. It is further pleaded that the defendant is now showing shop no. G-13 B as shop no. G-10.
It is the plea of the defendant that the suit is not maintainable as per Section 6 of Specific Relief Act and the same is also bad for mis-joinder of the parties.
14. During his examination-in-chief, the plaintiff no. 1 (PW-1) re-iterated and re-affirmed the contents of the plaint but while cross-examination dated 09.11.2017, it was deposed by him that he was not aware if the license deed was ever got registered. It was admitted to be correct that he was not claiming any right, title or interest in shop no. G-10. It was further deposed that he had not filed any document to show that the plaintiffs were the LRs of Sh. Nand Lal. It was also deposed at page no. 3 that he was not aware since when the defendants were in possession of the suit property.
15. During his subsequent cross-examination dated 21.12.2017, it was further deposed by the plaintiff no. 1 (PW-1) that he was not aware if the shop no. 13-A was adjacent to the shop no. 10. He was also not aware if the shop no. 10 falls in between shop no. 9 and 11.
Rajesh Gaba & Ors.Vs. Rajesh Nair Suit No. 9565/16 Page no. 11/13 During his cross-examination dated 21.12.2017, after seeing the documents Ex. PW1/D2 and Ex. PW1/D3, it was submitted by the plaintiff no. 1 (PW-1) that the same were supplied to him along with the summons of the suit. At page no. 4, it was deposed by him that the rent of the suit shop must be Rs. 7000-8000 per month and had no idea as to that in the year 2006. It was also deposed that he had no idea to the value of the suit property in the year 2006.
16. The plaint is silent as to when did the defendant occupied illegally and unlawfully the shop no. G-13 B. The plaint is also silent as to when was the payment made by the father of the plaintiff or as to when did he took possession and occupied the shop in question. In para no. 4 of the plaint, it is pleaded by the plaintiff that the incident was witnessed by Rakesh Gandhi and Mukesh Sharma but they have failed to get them examined as witness to prove their pleadings.
17. Admittedly, the plaintiff no. 1 (PW-1) is not aware as to what was the rate of rent of the shop in question in the year 2006. This is also admitted fact that the plaintiff no. 1 (PW-1) is also not aware as to what was the value of the suit property in the year 2006. This is also now admitted fact that the documents Ex. PW1/D2 and Ex. PW1/D3 were supplied to the plaintiff no. 1 along with the summons of the suit. So, the documents under challenge were within the knowledge of the plaintiffs in the year 2012 itself.
Rajesh Gaba & Ors.Vs. Rajesh Nair Suit No. 9565/16 Page no. 12/13 On one hand, it is the plea of the plaintiffs that the defendant has merged the shop in question in shop no. G-13A and G-12 but on the other hand, it is also the plea of the plaintiff that the defendant is now showing the shop no. G-13 B as shop no. G-10. During his cross-examination, it is stated by the plaintiff no. 1 (PW-1) that he is not claiming any right, title or interest in shop no. G-10. Hence, it is clear that the plaintiffs themselves are not aware about the exact location of the suit shop.
Accordingly, on the basis of the pleadings of the parties and the evidence led by the parties, especially by the plaintiff no. 1 (PW-1) and also in the light of the findings on the issue no. 1 to 7, the plaintiffs have failed to prove the issue no. 8 to 12. Hence, the issue no. 8 to 12 are decided against the plaintiff and in favour of the defendants.
Relief.:-
18. In view of above discussion and findings of the issues, the plaintiff is not found entitled to any relief. Suit is dismissed.
Decree sheet be prepared accordingly.
Announced in the open Court
today the 17th May, 2019 Digitally
signed by
RAJINDER
RAJINDER KUMAR
KUMAR Date:
2019.05.22
15:33:44
+0530
Rajesh Gaba & Ors.Vs. Rajesh Nair
Suit No. 9565/16 Page no. 13/13