Delhi District Court
Sh. Bhairon Lal Tanwar vs Smt. Soma Devi on 29 November, 2012
IN THE COURT OF SH. JITENDRA PRATAP SINGH, CIVIL JUDGE,
TIS HAZARI COURTS, DELHI
Suit No. 333/09
Case ID No. C0228632009
Sh. Bhairon Lal Tanwar,
S/o Late Sh. Kamad Ram,
R/o B1243, Shastri Nagar,
New Delhi - 110052. .... Plaintiff.
Versus
Smt. Soma Devi,
W/o Sh. Chatri Lal,
R/o H. No. B1243/1,
Shastri Nagar,
Delhi - 110052. .... Defendant.
SUIT FOR PERMANENT INJUNCTION.
Date of Institution : 30.05.2009
Date of reserving Judgment : 09.11.2012
Date of pronouncement : 29.11.2012
JUDGMENT
Vide this Judgment I shall dispose off the suit instituted by Suit No. 333/09 Page No. 1 of 11 the plaintiff against the defendant for permanent injunction from evicting the plaintiff without due process of law.
2. For deciding the present suit, it is necessary to briefly discuss the facts of the case. Brief facts of the case are as follows : It is the case of the plaintiff that the plaintiff is the owner of premises bearing No. B1243/1, Shastri Nagar, New Delhi - 110052 and the defendant is the tenant in respect of one room situated in the said premises since 1975 and at the monthly rent of Rs. 60/.
3. It is stated that on 18.12.2008, the defendant had filed a petition under Section 44 of the Delhi Rent Control Act, 1958 bearing No. 71/08 seeking permission from the Hon'ble Court to carry out repairs as per the valuation report dated 25.11.2008 at the cost of the petitioner. The said valuation report was obtained by the defendant from the valuer. It is stated that the petitioner did not object to the said repair work subject to the condition that the defendant shall bear the entire cost of the repairs and should not interfere in the premises not under the tenancy of the defendant. It is further submitted that the defendant started the said repair works on 21.5.2009 and had raised a wall against Suit No. 333/09 Page No. 2 of 11 the door of the plaintiff so as to prevent the access of the landlord to the toilet / bathroom and the area around the tenanted premises and had broken the wall against the stair to which the plaintiff has raised objection. It is stated that the defendant threatened the plaintiff to be eliminated along with his family if he raised any objection for the said construction carrying on by the defendant. The plaintiff has also made a complaint to the local police vide DD No. 16A, PS Shastri Nagar dated 23.5.2009 in this regard. The nonaction on the part of the police constrained the plaintiff to file the present suit praying for the direction to restrain the defendant from carrying out the repairs in the premises not under the tenancy of the defendant.
4. In the written statement filed by the defendant, in the preliminary objections the defendant has submitted that the present suit is not maintainable in the present form being without any cause of action since the defendant had carried out the permissible repairs with the consent of the plaintiff. It is further submitted that the defendant is the admitted tenant of the plaintiff since, 1975. It is further submitted that the present suit has neither been properly valued for the purpose of Court fee nor the proper Court fee has been affixed thereon. Defenadnt Suit No. 333/09 Page No. 3 of 11 further stated that the present suit is not maintainable for the reason that as per the title of the suit, the remedy, if any available to the plaintiff lies in the Court of Sh. Rakesh KumarI Ld. ARC, North, Delhi wherein petition bearing No. 71/2008 filed on 20.12.2008 by defendant against the plaintiff was decided with the consent of both the parties and wherein the plaintiff gave a statement that he had no objection in case the defendant carries out necessary repairs as per valuation report dated 25.11.2008 at her own cost. In reply on merits, it is submitted by the defendant that the defendant is a tenant in respect of one room with common use of latrine, bath, staircase and open chowk. In addition thereto, the defendant mostly denied the averments as made by the plaintiff in the plaint.
5. In the replication filed by the plaintiff, plaintiff mostly denied the avements as made by the defendant in her written statement and reaffirmed the averments as made in the plaint.
6. Thereafter, on the basis of the pleadings of the parties following issues have been framed by the Ld. Predecessor on 6.1.2010: Suit No. 333/09 Page No. 4 of 11
1. Whether the plaintiff is entitled to the decree of permanent injunction as prayed for? OPP.
2. Whether the present suit is liable to be dismissed for want of cause of action? OPD.
3. Relief.
Thereafter, the matter was listed for plaintiff evidence.
7. In plaintiff evidence, plaintiff has produced himself as PW1. In his examination in chief, PW1 mostly reiterated the averments made in the plaint. PW1 placed on record the following documents :
1. Copy of valuation report dated 25.11.2008 as Ex. PW1/A.
2. Certified copy of petition under Section 44 of the Delhi Rent Control Act as Ex. PW1/B. PW1 was cross examined by the counsel for defendant at length. Thereafter, Sh. Anil Kumar Sharma, daughtsman was examined as PW2 who prepared the site plan, Ex. PW2/A. The plaintiff evidence was closed and the matter was listed for defendant evidence.
8. In defendant evidence, defendant was examined as DW1. In her examination in chief, DW1 mostly reiterated the averments made Suit No. 333/09 Page No. 5 of 11 in the written statement. Thereafter, the DW1 was cross examined by the counsel for the plaintiff and the matter was listed for final arguments.
9. I have heard final arguments on behalf of the parties and have carefully gone through the case file. My issuewise findings are as follows :
10. ISSUE NO. 1.
The onus of proof of the present issue has been placed on the plaintiff. During the course of arguments, it has been conceded by the counsel for the plaintiff that since the defendant has already made the construction in the suit property which were not agreed to by the parties in the proceedings pertaining to Section 44 of Delhi Rent Control Act filed by the defendant in the year, 2004, the prayer clause Nos. 1, 2 and 3 are not pressed for by the plaintiff and the plaintiff is pressing upon the relief whereby a permanent injunction is sought against the defendant seeking the direction to the defendant to demolish completely the raised wall against the door of the landlord / plaintiff and to restore the wall against the stairs in its original position. Suit No. 333/09 Page No. 6 of 11
11. In support of his case, the plaintiff has relied upon the valuation report, Ex. PW1/A filed by the defendant before the Ld. ARC during proceedings initiated by the defendant against the plaintiff under Section 44 of the Delhi Rent Control Act. The plaintiff has further relied upon the site plan i.e. Ex. PW2/A wherein allegedly the property of the defendant is shown in red colour and moreover, the unauthorized wall raised by the defendant to deny the access to the defendant in the tenanted portion is also shown in red. It is contended by the plaintiff that the works which have been carried on by the defendant beyond the purview of the agreement entered into between the parties during the proceedings under Section 44 of the Delhi Rent Control Act have been mentioned by the plaintiff in para 10 of his rejoinder. It is further contended that the said unauthorized work has been admitted to by the defendant in the compliant made to the police by the son of the defendant and which had been put to the defendant during her cross examination.
12. It is contended by the counsel for the plaintiff that even in the cross examination of the plaintiff, the defendant has put a suggestion to the plaintiff that since the plaintiff had placed malba in a Suit No. 333/09 Page No. 7 of 11 tin shed made above the tenanted premises of first floor resulting the leakage in the roof of the tenanted premises which was denied by the plaintiff for the reason that it was the defendant who has blocked the drains of the roof resulting into the seepage. These suggestions itself reveals that the defendant had constructed a tin shed over the tenanted premises. The plaintiff has further contended that from the photographs filed by the plaintiff along with the suit, it is evident that the constructions made after the decision of the petition under Section 44 of Delhi Rent Control Act is beyond the purview of the agreement arrived at between the parties.
13. Per contra, it is the defence of the defendant that the petition under Section 44 of the Delhi Rent Control Act was disposed off by the Ld. ARC upon the agreement arrived at between the parties and it is in pursuance thereof that the valuation report was filed. It is further submitted that the defendant has got done the works as mentioned in the valuation report such as flooring, plastering and seepage and the plaintiff has not been able to establish that any work beyond the purview of the said valuation report has been made over the suit property by the defendant.
Suit No. 333/09 Page No. 8 of 11
14. The plaintiff in support of his case that the defendant has raised a wall against the door of the landlord / plaintiff has only relied upon a site plan of the suit property and no other evidence has been led on behalf of the plaintiff in support of the fact that earlier there was a door / passage at the point shown in red colour in the site plan, Ex. PW2/A which has been blocked by the defendant. Even, the deposition of Sh. Anil Kumar Sharma, the draughtsman, PW2 fails to evoke any confidence in the court qua the said witness for the reason that although, as per the deposition of the said witness, the said PW2 had visited the suit property but he could not tell whether the same is one sided open or was two sided open. Thus, PW2 could not tell the number of entrances to the suit property or the material of which the gate of the suit property is constructed of. Even, the site plan filed by the plaintiff, Ex. PW2/A is not clearly demarcating the dimensions apart from those of two rooms and in such a scenario, this court cannot given the credence which normally a site plan deserves in a Civil Court.
15. As far as the admission of the defendant with respect to the unauthorized construction on the basis of complaint dated 23.5.2009, Ex. DW1/P1 made by the son of the defendant to the SHO, PS Sarai Suit No. 333/09 Page No. 9 of 11 Rohilla is concerned, the same cannot be relied upon against the defendant for the reason that when the said documents was placed before the defendant during her cross examination, she had not admitted the same. The said defendant had further stated that she could not recall as to whether she had put her thumb impression on the said document. In case the plaintiff was seeking to rely upon the said documents, he had to get the same proved as per the provisions of Indian Evidence Act which he has failed to do so in the present case. In view of the aforesaid, the plaintiff has failed to establish his case and accordingly, the present issue stands decided against the plaintiff.
16. ISSUE NO. 2.
The onus of proof of this issue has been placed on defendant. It is the contention of the defendant that since the defendant has already got the work done before filing of the plaint, in the present suit, there remains no cause of action and as such the suit deserves to be dismissed. The cause of action is to be seen from the pleadings made by the parties in a suit. Merely on the averments of one party, a suit cannot be stated to be without a cause of action when the other party is alleging to be otherwise. In the present case, apart from the Suit No. 333/09 Page No. 10 of 11 allegations of absence of cause of action, the defendant has not led any evidence in support thereof and as such the present issue stands decided against the defendant.
17. RELIEF.
In view of the aforesaid discussion and decision of the issues, this court is of considered opinion that the plaintiff has failed to establish his case and the suit of the plaintiff is dismissed accordingly. Since, the defendant has also failed to put up a valid defence to the suit of the plaintiff, he is not entitled to the cost of the suit. As such the parties are directed to bear their own costs. Decree sheet be prepared accordingly. File be consigned to record room after necessary compliance.
Announced in the open court (Jitendra Pratap Singh)
on 29.11.2012 Civil Judge, North (IV)
Tis Hazari Courts, Delhi
29.11.2012
This Judgment consists of 11 pages and all the pages are duly signed by me.
Suit No. 333/09 Page No. 11 of 11 Suit No. 333/09 29.11.2012 Present: None.
Vide separate order of even date the suit of the plaintiff is dismissed. The parties are directed to bear their own costs. Decree sheet be prepared accordingly. File be consigned to record room after necessary compliance.
(Jitendra Pratap Singh) CJ/N/Delhi/29.11.2012 Suit No. 333/09 Page No. 12 of 11