Delhi District Court
Prem Parkash Berry vs Smt. Chitra Rekha Sharma on 17 October, 2016
IN THE COURT OF MS. NAVITA KUMARI BAGHA, ADJ-01 (SOUTH),
SAKET COURTS, NEW DELHI
CS No.76/15
Unique Case ID No.02406C0328152015
Prem Parkash Berry
S/o Sh. T.R. Berry
R/o B-3/94, First Floor,
Safdarjung Enclave,
New Delhi.
............Plaintiff
Vs.
1. Smt. Chitra Rekha Sharma
W/o Sh. J.P. Sharma
2. J.P. Sharma
Both residents of:
B-3/18, Safdarjung Enclave,
New Delhi.
......Defendants
Suit for Possession, Damages/Compensation in respect of stolen articles
and for causing mental agony and harassment alongwith Permanent
Injunction
O R D E R :-
1. Vide this order, I shall dispose of the plaintiff's application filed U/O.39 R.1&2 CPC.
2. The present suit was filed by the plaintiff against defendant no.1 & 2 on 09.10.2015. The brief facts as stated in the plaint are as follows:-
2.1 The plaintiff, in the month of June 2013, had taken on rent one CS No.76/15 Prem Parkash Berry Vs. Smt. Chitra Rekha Sharma & Anr.
room/servant quarter situated on the 2 nd floor of house bearing No.B-3/18 Safdarjung Enclave, New Delhi (hereinafter referred to as 'suit property') belonging to defendant no.1 and the same was used by him as godown for keeping his goods. 2.2 On 02.06.2014, plaintiff found that someone had tried to break open his lock of the suit property by hammering the same and he lodged a police complaint in this regard, on which ASI Ram Kishan visited the suit property but on opening the door, none of the articles was found missing.
2.3 On 06.06.2014, the plaintiff again wanted to go to the suit property to have some article from there but the landlady i.e. defendant no.1 did not let him come inside. The plaintiff lodged a police complaint on the same date but no action was taken by the police. 2.4 Then on 26.07.2014, the plaintiff again went to the suit property and the defendants again did not let him come inside. He made a call to PCR. When the ASI went to the suit property alongwith defendants, he found that only one old bed was lying in the room. The valuable articles/goods of the plaintiff lying in the suit property were removed or stolen by the defendants and the possession of the suit property was illegally and unauthorizedly taken by the defendants without the consent of the plaintiff. Hence, the present suit was filed by the CS No.76/15 Prem Parkash Berry Vs. Smt. Chitra Rekha Sharma & Anr.
plaintiff.
3. The defendants filed their joint Written Statement on 11.01.2016 wherein they have stated as follows:-
3.1 That the suit property was never let out to the plaintiff and the plaintiff has not come to the Court with clean hands and has concealed the material facts from the Court that vide lease deed dated 01.08.2009, the ground floor of the property bearing no.B-
3/18, Safdarjung Enclave, New Delhi-29 comprising of three bedrooms with attached bathrooms and one dressing room, drawing-cum-dining room and one kitchen was let out to plaintiff and his associate partner K.P. Prabhakaran at monthly rent of ₹50,000/-, but after taking the suit property, they started making default in payment of rent and defendant no.1 was forced to terminate the said lease and to file a suit for possession and eviction against the present plaintiff and K.P. Prabhakaran which was decreed in her favour vide judgment/decree dated 21.04.2010, but they, in order to retain further possession of the property without paying any rent, filed an appeal against the said decree on false and frivolous ground in the Hon'ble High Court. In the appeal the matter was settled between the parties and the plaintiff and K.P. Prabhakaran vacated the said property on 31.07.2012 and after CS No.76/15 Prem Parkash Berry Vs. Smt. Chitra Rekha Sharma & Anr.
such vacation, the plaintiff was never given any portion of the property.
3.2 That thereafter, K.P. Prabhakaran again approached the defendants for taking on rent and on the repeated persuasion, the defendant no.1 agreed to lease the ground floor to K.P. Prabhakaran only for a period of 11 months vide lease dated 31.07.2012. But he again stopped paying the rent intentionally in a pre-planned strategy and also refused to vacate the said property and again a suit for eviction and possession was filed by the defendant in which possession of the said rented premises was handed over by him to the defendants on 03.06.2014. 3.3 That the present suit has been filed by the plaintiff with malice and in connivance and collusion with his partner K.P. Prabhakaran and their counsel who is providing all the legal advice to them to harass the defendants.
3.4 That the plaintiff is trying to mislead the Court by concealing the facts that he had handed over the peaceful and vacant possession of the tenanted premises in 2012 and thereafter has no concern with the property.
4. The Replication to the Written Statement was filed by the plaintiff on 11.05.2016 wherein he did not deny the facts as narrated in the CS No.76/15 Prem Parkash Berry Vs. Smt. Chitra Rekha Sharma & Anr.
Written Statement with respect to previous lease deeds and litigations.
5. I have heard the arguments on this application from counsel Sh.
Parmal Singh for plaintiff and counsel Sh. Chandra Shekhar for defendants and perused the record.
6. The counsel for defendants has vehemently argued that the plaintiff was not a tenant under the defendants with respect to the suit property and that he, in connivance with his earlier partner K.P. Prabhakaran and his counsel, has filed the present suit with ill motive to grab the property of senior citizens i.e. the defendants. It is pertinent to mention here that the plaintiff has just simply stated in para 1 of his plaint that he, in the month of June 2013, had taken on rent one room/servant quarter situated on the second floor of house bearing no.B-3/18, Safdarjung Enclave, New Delhi belonging to Smt. Chitra Rekha Sharma, the defendant no.1. Neither has he stated that the defendant no.1 had let out the same to him nor he disclosed if it was oral or written tenancy. He has also not disclosed the exact date of creation of said tenancy. In para 12 of his plaint, he has stated that he had taken on rent the suit property in the month of June, 2012 whereas in para 1 he has stated that the same was taken in June, CS No.76/15 Prem Parkash Berry Vs. Smt. Chitra Rekha Sharma & Anr.
2013. Thus, he himself is not sure as to when the alleged tenancy was created. Now even if it is presumed that the plaintiff is alleging oral tenancy, yet some substance appears to be there in the contention of counsel for defendants due to three reasons viz. firstly, that when earlier the ground floor was let out to plaintiff and his associate K.P. Prabhakaran, written lease deed was executed on 01.08.2009 by defendant no.1 and again when she let out the ground floor to K.P. Prabhakaran only, she again executed written lease deed dated 31.07.2012 and thus, it is highly improbable that she would let out the suit property to plaintiff without executing any written document; secondly, it is again highly improbable that defendant no.1 would opt for oral tenancy with plaintiff, with whom she already had bitter experience as he had dragged the litigation to the High Court despite defendant no.1 having got the decree of possession against him; and thirdly, when the defendant no.1 was executing written lease deed in July, 2012 with K.P. Prabhakaran, then why at the same time would she induct plaintiff on mere oral tenancy despite her having past bad experience with him?
7. The plaintiff has alleged that he was using the suit property as godown and his valuable goods were lying therein. But in the entire CS No.76/15 Prem Parkash Berry Vs. Smt. Chitra Rekha Sharma & Anr.
plaint, neither has he disclosed that for which business he was using the suit property as godown nor has he given any details of the said alleged 'valuable' goods. He has filed the present suit inter-alia for recovery of ₹4,00,000/- being the value of stolen goods, but has failed to give details of the said goods. The only document, he relying upon to show his possession over the suit property, is the electricity bills. The counsel for defendants has argued that since the associate of the plaintiff i.e. K.P. Prabhakaran was in possession of the ground floor where all the electricity bills were used to be dropped by the postman/deliveryman, so, the plaintiff in connivance with his associate has acquired those bills with the ill motive to create a false evidence regarding his possession of suit property. This Court is of considered opinion that such a possibility could not be overruled in view of the facts and circumstances of the present case. Moreover, mere possession of electricity bills would not establish the factum of tenancy especially when the consumption of electricity in the said bills is virtually nil, thereby creating doubt about the occupancy of the suit property.
8. Hence, in view of the aforesaid analysis, it is apparent that the plaintiff has failed to disclose any prima facie case in his favour. He CS No.76/15 Prem Parkash Berry Vs. Smt. Chitra Rekha Sharma & Anr.
has also failed to show the balance of convenience in his favour. Apart from this, he is guilty of concealment of material facts, making him disentitled to the discretionary relief of injunction. Therefore, for the reasons aforesaid, his application U/O.39 R.1&2 CPC is dismissed. However, nothing observed herein shall tantamount to an expression of opinion on the merits of this case. (Announced in open Court on 17.10.2016) (Navita Kumari Bagha) ADJ-01, South District Saket Courts, New Delhi CS No.76/15 Prem Parkash Berry Vs. Smt. Chitra Rekha Sharma & Anr.
CS No.76/15Prem Parkash Berry Vs. Smt. Chitra Rekha Sharma & Anr.
17.10.2016 Present : None.
Vide separate order, the plaintiff's application U/O.39 R.1&2 CPC is dismissed.
Put up on 01.12.2016 for admission/denial of documents and framing of issues.
(Navita Kumari Bagha) ADJ-01 (South), New Delhi 17.10.2016 CS No.76/15 Prem Parkash Berry Vs. Smt. Chitra Rekha Sharma & Anr.