Delhi District Court
Mrs. Poonam vs Sh. Krishan Pal on 20 November, 2014
IN THE COURT OF SH. ARUN KUMAR: CIVIL JUDGE:
SOUTH WEST DISTRICT: DWARKA COURT: NEW DELHI
C.S No: 164/11
Unique case ID No: 02405C0051792011
IN THE MATTER OF
Mrs. Poonam,
W/o Sh. Jitender Chauhan,
D/o Late Sh. Munshi Ram,
R/o H. No. 401/315, Gali no. 6
Geetanjali Park, West Sagarpur,
New Delhi 110046 ... Plaintiff
Versus
1. Sh. Krishan Pal,
S/o Late Sh. Ram Chander
2. Smt. Sarla Devi
W/o Sh. Krishan Pal
Both R/o House no. 401/315,
Gali no. 6,Geetanjali Park,
West Sagarpur, New Delhi 110046 ... Defendants
Date of Institution : 29.01.2011
Date on which judgment was reserved : 07.11.2014
Date of pronouncing judgment : 20.11.2014
SUIT FOR PERMANENT INJUNCTION
JUDGMENT
1. By this judgment, I will dispose of the suit filed by the plaintiff for permanent injunction against her father-in-law i.e. defendant no. 1 and against her mother-in-law i.e. defendant no. 2. CS No. 164/11 Poonam Vs. Krishan Pal & Ors.
Judgment dated 20.11.2014 Page no. 1 of 26
2. It is the case of the plaintiff that she is the legally wedded wife of son of the defendants namely Sh. Jitender Chauhan and her marriage had taken place on 17.06.2009, whereafter the defendants have raised construction in half portion of House no. 401/315, Gali no. 6, Gitanjali Park, West Sagarpur, New Delhi 110046 (hereinafter referred to as 'suit property') and handed over the possession of two rooms of ground floor and first floor measuring 75 sq. yds. to the plaintiff. According to the plaintiff, since then she is in possession of the suit property and she has contributed towards cost of construction of the aforesaid portion both before her marriage and after her marriage. However, according to her, defendants have been harassing the plaintiff on one pretext or the other and are trying to forcibly dispossess her from the suit property. Besides, according to her, the defendants are adamant on disconnecting the electricity as well as the water supply to the portion of the plaintiff. Therefore, the plaintiff has filed the present suit for permanent injunction seeking decree in her favour and against the defendants thereby restraining them from dispossessing the plaintiff from the suit property illegally, forcibly and without CS No. 164/11 Poonam Vs. Krishan Pal & Ors.
Judgment dated 20.11.2014 Page no. 2 of 26 due process of law and also restraining them from disconnecting the electricity and water supply in the portion of the plaintiff.
3. Defendants filed their written statement and denied that the plaintiff is in possession of the suit property since the date of her marriage. Though admittedly the plaintiff was married to son of the defendants on 17.06.2009, however, according to the defendants, the plaintiff left the suit property on 21.08.2009 and again made a forcible entry in the suit property on 10.06.2010. According to them, the defendants being peace loving citizens could not resist the attempt of the plaintiff to enter the suit property despite the fact that the defendants are the true owner of the suit property and the suit property is their self-acquired property. Thus, according to the defendants, the present suit of the plaintiff is liable to be dismissed in as much as no suit for injunction against true owner is maintainable. They have further denied in their written statement that the plaintiff had ever contributed towards the cost of construction of the suit property or that they had ever disconnected the electricity and water supply of the plaintiff. According to them, they have CS No. 164/11 Poonam Vs. Krishan Pal & Ors.
Judgment dated 20.11.2014 Page no. 3 of 26 already disinherited the husband of the plaintiff due to matrimonial discord between the plaintiff and her husband which had made the life of the defendants miserable. According to them, since the husband of the plaintiff is not living in the suit property alongwith the defendants and the plaintiff, the suit property cannot be termed as her matrimonial home and as such the plaintiff is not entitled to the injunction prayed for by her.
4. In her replication to the aforesaid written statement, the plaintiff has reiterated all the averments made by her in her plaint.
5. On the basis of pleadings of the parties following issues were framed by Ld. Predecessor of this court vide order dated 22.03.2011.
i. Whether the plaintiff is in settled possession of the suit property? OPP.
ii. Whether the plaintiff is entitled to permanent injunction restraining her dispossession as prayed? OPP. iii. Whether the plaintiff is entitled to permanent injunction restraining disconnection of electricity supply, as prayed? OPP.
iv. Whether the plaintiff is entitled to permanent injunction CS No. 164/11 Poonam Vs. Krishan Pal & Ors.
Judgment dated 20.11.2014 Page no. 4 of 26 restraining disturbance to water supply, as prayed? OPP.
v. Relief.
6. Thereafter, the matter was fixed for plaintiff's evidence.
7. Plaintiff has examined herself as PW-1 and tendered her affidavits Ex PW 1/A and Ex PW 1/B in her evidence. In the aforesaid affidavits all the averments made by the plaintiff in her plaint were reiterated by her on Oath. In her aforesaid affidavit, she has relied upon the aforesaid documents:
i. Ex PW 1/1 - Site plan of the suit property.
ii. Ex PW 1/2 - Invitation card of marriage of plaintiff with
son of the defendants.
iii. Ex PW 1/3 - Photographs of the plaintiff and her
husband.
iv. Ex PW 1/4 - Reply to the notice dated 18.09.2010.
v. Ex PW 1/5 - AD Card with respect to the receipt of
aforesaid reply.
vi. Ex PW 1/6 - Postal receipt regarding dispatch of the
aforesaid reply.
vii. Ex PW 1/7 to 11 - Several complaints dated 22.06.2014,
24.06.2014, 24.07.2010, 14.10.2010 and 28.02.2011 CS No. 164/11 Poonam Vs. Krishan Pal & Ors.
Judgment dated 20.11.2014 Page no. 5 of 26 respectively made by the plaintiff against the defendants.
8. Plaintiff has further examined PW-2 in support of her case.
PW-2 deposed that the suit property is the matrimonial home of the plaintiff and that, as informed by the plaintiff, she had given money to the defendant no. 1 at the time of construction of the suit property in which the plaintiff is residing. It was further been deposed by him that though initially after her marriage, the plaintiff was enjoying the facility of electricity and water connection but later the defendants have disconnected the same. It has further been deposed by him that the plaintiff being the legally wedded wife of son of the defendants has got every right, title in the suit property which is in her possession. The aforesaid deposition has been made by PW-2 by way of his affidavit Ex PW 2/A. Thereafter, on a separate statement of counsel for plaintiff, PE was closed vide order dated 30.04.2011 and the matter was fixed for defendant's evidence.
9. Defendant no. 1 has examined himself as a sole witness in support of his case. He has tendered his affidavit Ex DW 1/A in evidence alongwith the following documents:
i. Ex DW 1/1 - Newspaper dated 09.07.2010 wherein public CS No. 164/11 Poonam Vs. Krishan Pal & Ors.
Judgment dated 20.11.2014 Page no. 6 of 26 notice regarding disinheritance by defendant no. 1 of his son i.e. husband of the plaintiff was published.
ii. Ex DW 1/2 - Receipt dated 15.07.1981 regarding payment of consideration for purchase of the suit property.
Iii. Ex DW 1/3 & Ex DW 1/4 - Medical Report dated 02.01.2011.
iv. Ex DW 1/5 - Emergency and Hospital Card of defendant no. 2.
10. The aforesaid witness was duly cross-examined by Ld. Counsel for plaintiff and thereafter, on a separate statement of defendant, DE was closed vide order dated 05.09.2013 and the matter was fixed for final arguments.
11. Final arguments have been heard on behalf of the parties. It is submitted by the counsel for plaintiff that plaintiff has been able to prove her case for grant of injunction prayed by her in her plaint in as much as admittedly the plaintiff is in settled possession of the suit property and it is settled law that a person in settled possession cannot be dispossessed except by due process of law. Thus according to him, in case defendants wishe to dispossess the plaintiff from the suit property on the CS No. 164/11 Poonam Vs. Krishan Pal & Ors.
Judgment dated 20.11.2014 Page no. 7 of 26 ground that plaintiff has got no right, title or interest in the aforesaid property they can file a suit for possession against the plaintiff and they cannot be allowed to take the law in their own hand by forcibly dispossessing the plaintiff or by pressurizing the plaintiff to vacate the suit property by disconnecting the electricity and water supply of the plaintiff. He submits that the application of the plaintiff under Order 39 Rules 1 & 2 CPC has already been allowed by Ld. Predecessor of this court vide order dated 22.03.2011 and according to him the aforesaid order clinches the whole issue which has arisen before the court for determination. Therefore, it is submitted by him that interim order passed by Ld. Predecessor of this court on 23.03.2011 on application of the plaintiff under Order 39 Rules 1 & 2 CPC be made absolute and defendant be restrained from forcibly dispossessing the plaintiff from the suit property and from disconnecting the electricity and water supply of the plaintiff except by following due process of law.
12. On the other hand, it is submitted by counsel for defendant that it has not been disputed by the plaintiff that the defendant no. 1 is the absolute owner of the suit property. According to him, CS No. 164/11 Poonam Vs. Krishan Pal & Ors.
Judgment dated 20.11.2014 Page no. 8 of 26 plaintiff has also failed to prove that she is entitled to occupy the suit property which admittedly belongs to the defendants and as such according to him, the plaintiff is not entitled to a decree of permanent injunction sought for by her against the true owners i.e. the defendants and the suit of the plaintiff should be dismissed with heavy cost. Even otherwise, according to him, the suit of the plaintiff has already become infructuous in as much as the defendant no. 1 has already filed a suit for possession of the suit property against the plaintiff herein which is pending adjudication before this court. Therefore, in view of the aforesaid submissions, it is prayed by him that the present suit of the plaintiff may be dismissed with heavy costs.
13. Counsel for defendants has relied upon the the judgment passed by Hon'ble Supreme Court in S.R. Batra and Another Vs. Taruna Batra (2007) 3 Supreme Court Cases 169 in support of his submissions that the plaintiff has got no right, title or interest in the suit property which belongs to the defendants in as much as neither the husband of the plaintiff as any right, title or interest in the suit property nor he is residing CS No. 164/11 Poonam Vs. Krishan Pal & Ors.
Judgment dated 20.11.2014 Page no. 9 of 26
in the same.
14. I have heard the submissions made on behalf of the parties and have perused the record. My issue wise findings on the issues framed by Ld. Predecessor of this court vide order dated 22.03.2011 are as follows:
Issue no. 1: Whether the plaintiff is in settled possession of the suit property? OPP.
15.It is the case of the plaintiff that she is in settled possession of the suit property since the date of her marriage with son of defendants. On the other hand, case of the defendant is that the plaintiff has left the suit property on 21.08.2009 and has again made forcible entry in the suit property on 10.06.2010. Both the parties have reiterated the aforesaid stands in their respective affidavits, however, no corroborative evidence has been led on behalf of any of the parties to prove their respective stands. Be that as it may, in the present case, we are concerned only with the fact as to whether the plaintiff was in settled possession of the suit property as on the date of the filing of the present suit by her against the defendants i.e. on 27.01.2011.
The aforesaid fact regarding the plaintiff being in possession of CS No. 164/11 Poonam Vs. Krishan Pal & Ors.
Judgment dated 20.11.2014 Page no. 10 of 26 the suit property as on the date of the filing of the suit has not been disputed by any of the parties. Thus in view of the aforesaid facts even if the case of the defendant regarding the plaintiff having left the suit property on 21.08.2009 and having made the forcible entry again on 10.01.2010 is admitted to be correct, the plaintiff was in settled possession of the suit property as on the date of the filing of the suit. Admittedly she continues to be in settled possession of the suit property during the pendency of the present suit. Thus,the issue no. 1 is decided in favour of the plaintiff and against the defendants. Issue no. 2: Whether the plaintiff is entitled to permanent injunction restraining her dispossession as prayed? OPP.
16.The onus to prove the aforesaid issue was upon the plaintiff.
The plaintiff has alleged in her plaint that that she has contributed towards the cost of the construction of the suit property before her marriage as well as after her marriage. The aforesaid pleadings were controverted by the defendants in their written statement. According to them, the suit property had been purchased by the defendants way back in the year 1981 and even the construction in the suit property had already CS No. 164/11 Poonam Vs. Krishan Pal & Ors.
Judgment dated 20.11.2014 Page no. 11 of 26 become complete prior to the marriage of plaintiff with son of the defendants. The plaintiff has examined herself as well as PW-2 in support of her aforesaid case. So far as the testimony of PW-2 in this regard is concerned, admittedly, the same is a piece of hearsay evidence in as much as PW-2 has deposed that the aforesaid fact was told by the plaintiff to him and he has actually not seen the plaintiff contributing towards the cost of construction of the suit property. Even the testimony of the plaintiff regarding her contribution towards the cost of construction of the suit property seems to be not believable in as much as it has been alleged by her that she has contributed towards the cost of construction of the suit property even prior to her marriage with the son of the defendants. It has nowhere been disclosed by the plaintiff either in her plaint or in her replication or in her affidavit by way of evidence or during her cross-examination as to what amount has been given by her to the defendants for construction of the suit property and at what point of time the same was so given. In the absence of any pleadings or deposition on the part of the plaintiff regarding the plaintiff being known to son of the defendants prior to CS No. 164/11 Poonam Vs. Krishan Pal & Ors.
Judgment dated 20.11.2014 Page no. 12 of 26 marriage, it is hard to believe that the plaintiff would have contributed towards the cost of construction of the suit property. The evidence led by the plaintiff on the aforesaid aspect falls short of discharging the onus of the plaintiff to prove that she has contributed towards the cost of construction of the suit property. Even if, it is admitted for the sake of arguments that the plaintiff has contributed towards the cost of construction of the suit property, the same, in my considered opinion, does not confer any ownership rights upon the plaintiff in view of the fact that admittedly the defendants are the owner of the suit property.
17.It is submitted by the counsel for plaintiff in this regard that even if it is held by the court that the plaintiff is not having any right, title or interest in the suit property, however, in view of the fact that she is in settled possession of the suit property, her possession needs to be protected against any forcible dispossession by the defendants by passing a decree of permanent injunction restraining the defendants from forcibly dispossessing the plaintiff except by way of due process of law. It is submitted by him that it is settled legal position that even a CS No. 164/11 Poonam Vs. Krishan Pal & Ors.
Judgment dated 20.11.2014 Page no. 13 of 26 tresspasser in settled possession has right to protect her possession from any unlawful interference even by true owner.
18. On the other hand, it is submitted by the counsel for defendants that the plaintiff is not entitled to the aforesaid decree in as much as admittedly the defendants are the owner of the suit property and plaintiff has got no right, title or interest in the same. It is submitted by him that it is settled legal position that the suit for injunction does not lie against the true owner. Even otherwise, according to him, the suit of the plaintiff has become infructuous in as much as the defendant no. 1 has already filed the suit for possession against the plaintiff herein which is pending adjudication before this court. There cannot be any dispute about the legal proposition that a person in settled possession of a property cannot be forcibly dispossessed by even the true owners except by following due process of law.
19. The aforesaid proposition of law is based upon the principles contained in Section 6 of the Specific Relief Act in as much as if a person in settled possession, howsoever unlawful his possession may be, is forcibly dispossessed even by a true owner, he can file a suit for recovery of possession under CS No. 164/11 Poonam Vs. Krishan Pal & Ors.
Judgment dated 20.11.2014 Page no. 14 of 26 Section 6 of the Specific Relief Act, subject of course to the law of limitation. However, it does not mean that a tresspasser in settled possession can file a suit for injunction against the true owner for protection of his possession. The suit for injunction shall be governed by legal principles laid down by several courts in this regard such as the injunction being an equitable relief the plaintiff seeking injunction must approach the court with clean hands.
20. It has been held by Hon'ble Supreme Court in Mal Adeo Savlaram Shalke Vs. Pune Municipal Corporation 1995 (3) SCC 33 that it is settled law that no injunction could be granted against the owner at the instance of a person in unlawful possession. Thus, in view of the fact that injunction is an equitable relief, the court before granting the same must see whether a person who is a tresspasser can seek the helping hand of the court for protecting his unlawful possession as against the owner. The person who seeks equity must do equity and he must also come to the court with clean hands. When he do these things, there will be no occasion for him to seek an injunction in as much as the tress passer would have CS No. 164/11 Poonam Vs. Krishan Pal & Ors.
Judgment dated 20.11.2014 Page no. 15 of 26 automatically stood vacated. If he does not do these things, he cannot at the same time ask for the helping hand of the court to protect his legal possession.
21. Therefore, in view of the aforesaid discussion, it is one thing to say that a tresspasser forcibly ousted from possession of a property can seek restoration of possession under Section 6 of the Specific Relief Act and it is altogether different thing to suggest that the tresspasser can seek injunction against the true owner restraining him from dispossessing the tresspasser. While the former course of action is available to the tress passer, the later relief is not available to a person in unlawful occupation of the property. While taking the aforesaid view, I am duly supported by the judgment of the Hon'ble Delhi High Court in Thomas Cook (India) Ltd. Vs. Hotel Imperial and Others 2006 (88) DRJ 545.
22. In the aforesaid judgment, Hon'ble Mr. Justice Badar Durrez Ahmed has relied upon the following observations of Division Bench of Hon'ble Delhi High Court in DTTDC Vs. D.R. Mehra and Sons 62 (1996) DLT 234 (DB):
"9. The point that arises in this appeal is whether a CS No. 164/11 Poonam Vs. Krishan Pal & Ors.
Judgment dated 20.11.2014 Page no. 16 of 26 person who himself asks the owner to enter into a 'Licence' and enters into such an agreement can, after expiry thereof and express request of the owners to vacate, seek the helping hand of the Court for a temporary injunction against the owner and whether the appellant can contend that till he is dispossessed by due process of law, he is entitled for an injunction?
10. In our opinion, there are two different sets of principles which have to be borne in mind. Taking up the first aspect, it is true that where a person is in settled possession of property, even on the assumption that he has no right to remain in property, he cannot be dispossessed by the owner except by recourse to law. This principle is laid down in Section 6 of the Specific Relief Act, 1963. That Section says that if any person is dispossessed without his consent from immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit. That a person without title but in "settled" possession _ as against mere fugitive possession _ can get back possession if forcibly dispossed or rather, if dispossed otherwise than by due process of law, has been laid down in several cases. It was so held by the Supreme Court in Yashwant Singh v. Jagdish Singh, AIR 1968, SC 620; Krishna Ram Mohale v. Mrs. Shobha Venkata Rao, 1989 (4) SCC 131 (136), Ram Rattan CS No. 164/11 Poonam Vs. Krishan Pal & Ors.
Judgment dated 20.11.2014 Page no. 17 of 26 v. State of UP. 1977 (1) SCC 188 and State of U.P. v. Maharaja Dharmender Prasad Singh, 1989 (2) SCC 505 (516-517). The leading decision quoted in these rulings is the decision of the Bombay High Court in K.K. Verma v. Union of India, AIR 1954 Bombay 358.
13. We shall now refer to the other aspect of the matter. Assuming a trespasser ousted can seek restoration of possession under Section 6 of the Specific Relief Act, can the trespasser seek injunction against the true owner? In our view this question does not entirely depend upon Section 6 of the Specific Relief Act but mainly depends upon certain general principles applicable to the law of injunctions and as to the scope of the exercise of discretion while granting injunctions? Recently, the law in this behalf has been clarified by the Supreme Court in clear terms in Mal. Adeo Savlaram Shelke v. Pune Municipal Corporation, 1995 (3) SCC 33 = JT 1995 (2) SC
504. It was there held by Ramaswamy. J., after referring to Woodroffe on 'Law relating to injunction; L.C. Goyle' Law of injunctions; David Bean Injunction' Joyce on Injunctions and other leading Articles on the subject that the appellant who was a trespasser in possession could not seek injunction against the true owner. In that context the Supreme Court quoted Shiv Kumar Chandha v. MCD, (1993) (3) SCC 161 wherein it was observed that injunction is discretionary and that:CS No. 164/11
Poonam Vs. Krishan Pal & Ors.
Judgment dated 20.11.2014 Page no. 18 of 26 "Judicial proceedings cannot be used to protect or to perpetuate a wrong committed by a person who approaches the Court"
His Lordship Ramaswamy, J. also referred to Dalpat Kumar v. Prahlad Singh (1992) (1) SCC 719 in regard to the meaning of the words 'prima facie case' and 'balance of convenience' and observed in Mahadevo Savlaram Shelke (supra) at p.39:
"It is settled law that no injunction could be granted against the owner at the instance of a person in unlawful possession."
Therefore as pointed by the above decision of the Supreme Court it is settled law that a trespasser cannot seek injunction against the true owner. It has been so held also by several High Courts stating that an injunction cannot be granted in favour of a person who is a trespasser against the true owner (Hoshiar Singh v. Gaon Sabha, (36) 1988 DLT 428). In K.V. Narayan v. S. Sharana Gowda, AIR 1986 Karn. 77, Alamelu Achi v. Ponnaiah, AIR 1962 Madras 149. Biswabam Pvt. Ltd. v. Santosh, (AIR 1964 Cal. 235), Bishni V. Bahadur Singh, AIR 1980 All. 209; Padmanabha v. Thomas, AIR 1989 Kerala 188. The above decisions accord with the view taken by the Supreme Court in Shiv Kumar Chadha's case and in Mahadeo Savlaram Shelke's case.
CS No. 164/11 Poonam Vs. Krishan Pal & Ors.
Judgment dated 20.11.2014 Page no. 19 of 26
14. It is true that in some other cases Bhawani Investments Ltd. v. Shri Properties, 32 (1987) DLT 397, Moyilivarapu Annapurnaih v. Melampati Narsimha Rao (AIR 1982 AP.
253); Patel Exhibitors (Pvt) Ltd. v. The Corporation of the City of Bangalore, AIR 1986 Karnataka 194; Bhola Nath & Others v. Maharao Raj Saheb Bundi State, AIR 1984 All. 60; Smt. Geeta and Another v. Ashok Kumar, (1982) 84 Pun. L.R.291 and in Sai Balaji Trading Co. v. Veeraswamy, (1980 (1) AIR 28, a contrary view has been taken that till evicted by due process of law, a trespasser is entitled to injunction against the true owner. These judgments in our opinion run quite contrary to the judgments of the Supreme Court in Mahadeva Savalram's case 1995 (3) SCC 33 and to the two earlier rulings of the Supreme Court quoted therein namely Shiv Kumar Chadha v. MCD, 1993 (3) SCC 161; Dalpat Kumar v. Prahalad Singh, 1992 (1) SCC 719 and in our view, must be deemed to be wrongly decided. The approach in the latter group of cases to the question of grant of injunction was from the angle of Section 6 of Specific Relief Act and Lala Yeshwant Singh case (AIR 1968 SC 620) and K.K. Verma's case (AIR 1954 Bombay
358) and not from the angle of the Court's discretionary power to grant injunction.
15. In our view injunction is an equitable relief and the Court must see whether a person who is a trespasser can seek the helping hand of the Court for protecting his CS No. 164/11 Poonam Vs. Krishan Pal & Ors.
Judgment dated 20.11.2014 Page no. 20 of 26 unlawful possession as against the owner. A person who seeks equity must do equity. He must also come to Court with clean hands. When he does these things there will be no occasion for him to seek an injunction inasmuch as the trespass would have automatically stood vacated. If he does not do these things, he cannot at the same time ask for the helping hand of the Court to protect his illegal possession.
It is argued for the appellant that this may be anamolous. It is said that the trespasser has a "right" to an injunction against the true owner, and this is complementary to the duty of the owner not to evict the trespasser outside the judicial process. In our view, there is no anomaly. Each of these is based on a different legal principle. If the plaintiff wants the defendant to act in accordance with law he must first abide by the law himself and vacate the property as one would expect a law abiding citizen to behave." (Emphasis mine)
23. It is next sought to be contended by Ld. Counsel for plaintiff that in case the plaintiff is held to be not entitled to the permanent injunction prayed for by her, it would have the effect of permitting the defendants to forcibly dispossess the plaintiff from the suit property. The aforesaid argument has already been dealt with by Hon'ble Delhi High Court in Thomas CS No. 164/11 Poonam Vs. Krishan Pal & Ors.
Judgment dated 20.11.2014 Page no. 21 of 26 Cook's case (supra) wherein the court has further observed as follows:
"27. This brings me to the second aspect of 'due process of law'. It was urged by Mr Kaul that even if the plaintiff was in unlawful possession it could only be evicted by due process of law and therefore the plaintiff was entitled to an order of injunction preventing the defendants from removing the plaintiff from the said two rooms except through due process of law. It must be made clear that this argument fails in the context of this case because the plaintiff was never in possession and therefore there is no question of dispossession in the sense usually understood. The plaintiff had a mere right to use, such right was revocable, it has been revoked and the plaintiff is entitled under section 63 of the Indian Easements Act, 1882 to a reasonable time to leave the premises and take away its goods. The argument also fails because by rushing to court the plaintiff has indeed invited a judicial determination of its status. If it got an order of injunction it would enure to its benefit. But, if it did not, then it can't be heard to say that this court has to grant an injunction all the same because otherwise it would give a licence to the defendants to forcibly throw out the plaintiff without filing a suit for possession." (Emphasis mine)
24. The court has further dealt with the meaning of the expression CS No. 164/11 Poonam Vs. Krishan Pal & Ors.
Judgment dated 20.11.2014 Page no. 22 of 26 "due process of law" in para no. 28 of the aforesaid judgment which has been used by the Supreme Court in innumerable judgments which have been cited by Ld. Predecessor of this court while disposing of the application for ad-interim injunction. The aforesaid para is reproduced herein below for ready reference:
"28. The expressions 'due process of law', 'due course of law' and 'recourse to law' have been interchangeably used in the decisions referred to above which say that the settled possession of even a person in unlawful possession cannot be disturbed 'forcibly' by the true owner taking law in his own hands. All these expressions; however, mean the same thing--ejectment from settled possession can only be had by recourse to a court of law. Clearly, 'due process of law' or 'due course of law', here, simply mean that a person in settled possession cannot be ejected without a court of law having adjudicated upon his rights qua the true owner.
Now, this 'due process process' or 'due course' condition is satisfied the moment the rights of the parties are adjudicated upon by a court of competent jurisdiction. It does not matter who brought the action to court. It could be the owner in an action for enforcement of his right to eject the person in unlawful possession. It could be the person who is sought to be ejected, in an action preventing the owner from ejecting him. Whether the action is for enforcement of a right (recovery of possession) or protection of a right (injunction against dispossession), is not of much consequence. What is important is that in either event it is an action before the court and the court adjudicates upon it. If that is done then, the 'bare minimum' requirement of 'due process' or 'due course' of law would stand satisfied as recourse to law would have been taken. In this context, CS No. 164/11 Poonam Vs. Krishan Pal & Ors.
Judgment dated 20.11.2014 Page no. 23 of 26 when a party approaches a court seeking a protective remedy such as an injunction and it fails in setting up a good case, can it then say that the other party must now institute an action in a court of law for enforcing his rights i.e., for taking back something from the first party who holds it unlawfully, and, till such time, the court hearing the injunction action must grant an injunction anyway? I would think not. In any event, the 'recourse to law' stipulation stands satisfied when a judicial determination is made with regard to the first party's protective action. Thus, in the present case, the plaintiff's failure to make out a case for an injunction does not mean that its consequent cessation of user of the said two rooms would have been brought about without recourse to law." (Emphasis mine)
25. The aforesaid findings of the Hon'ble Delhi High Court in para no. 28 have been approved by Hon'ble Supreme Court in recently in a Three Judge Bench decision in Maria Margrada Vs. James (dead) through LRs in (2012) 5 SCC 370. In the aforesaid judgment after quoting with approval para no. 28 of the judgment of the Hon'ble Delhi High Court, it has been held by Hon'ble Apex Court as follows:
"79. Due process of law means that nobody ought to be condemned unheard. The due process of law means a person in settled possession will not be dispossessed except by due process of law. Due process means an opportunity to the defendant to file pleadings including written statement and documents before the court of law. It does not mean the whole trial. Due process of law is satisfied the moment rights of the parties are adjudicated upon by a competent court."
26. Thus, in view of the aforesaid discussions, in my considered CS No. 164/11 Poonam Vs. Krishan Pal & Ors.
Judgment dated 20.11.2014 Page no. 24 of 26 opinion, the plaintiff has failed to discharge her onus to prove Issue no. 2 and as such Issue no. 2 is decided against the plaintiff and in favour of the defendants.
Issue no. 3 : Whether the plaintiff is entitled to permanent injunction restraining disconnection of electricity supply, as prayed? OPP.
Issue no. 4. Whether the plaintiff is entitled to permanent injunction restraining disturbance of water supply, as prayed? OPP.
27. The onus to prove the aforesaid issues was upon the plaintiff.
The principles regarding grant of injunction in favour of a party have already been discussed while deciding the Issue no. 2. It has already been held during discussions on Issue no. 2 that though the plaintiff has been able to prove her past possession of the suit property, however, she has failed to prove that she is entitled to continue in possession of the suit property. Since the plaintiff is not entitled to continue in possession of the suit property, in my considered opinion, she has failed to discharge the onus even for grant of reliefs which are subject matter of Issue nos. 3 & 4. The aforesaid issues are accordingly decided CS No. 164/11 Poonam Vs. Krishan Pal & Ors.
Judgment dated 20.11.2014 Page no. 25 of 26 in favour of the defendants and against the plaintiff. Issue no. 5 :Relief
28. In view of my findings of Issue nos. 1 to 4, the plaintiff is not entitled to any relief. Suit of the plaintiff is accordingly dismissed with cost in favour of the defendants which are quantified at Rs. 20,000/- since the only purpose of filing of the present suit by the plaintiff seems to be to harrass the defendants and to continue in unauthorized occupation of the suit property.
29. Decree Sheet be prepared accordingly.
Announced in the open court on this 20th day of November, 2014 This order consists of twenty six signed pages.
(Arun Kumar) Civil Judge(SW)/Dwarka Courts New Delhi/20.11.2014 (akn) CS No. 164/11 Poonam Vs. Krishan Pal & Ors.
Judgment dated 20.11.2014 Page no. 26 of 26