Delhi High Court
Madhu Mallick @ Madhulata Mallick vs Nehru Bal Samiti (Regd) Thr Its Joint ... on 28 January, 2016
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 28th January, 2016
+ RFA 751/2015 & CM Nos.25327/2015 (for stay)
MADHU MALLICK @ MADHULATA MALLICK..... Appellant
Through: Ms. Deepali Gupta, Adv.
Versus
NEHRU BAL SAMITI (REGD) THR ITS
JOINT SECRETARY RAMA GOVIL ..... Respondent
Through: Mr. Sanjay Sawhney, Adv.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. On 19th January, 2016, when this appeal came up for admission, the
following order was passed:
"1. The appeal impugns the judgment and decree dated 31st July,
2015 of the Court of Shri Sunil Chaudhary, Additional District Judge-
12, Central District, Tis Hazari Courts, Delhi on admissions of recovery
of possession of Room No.9 situated in property bearing Khasra
No.376M, Masjid Moth Development Area, New Delhi from the
appellant.
2. Notice of the appeal was issued and the counsel for the
respondent appears.
3. The appeal is accompanied with CM No.25328/2015 for waiver
of 50% of the total Court fees of Rs.7,000/-. However the appellant in
the application has not stated any grounds for waiver of the Court fees.
Moreover, there is a procedure prescribed therefor of appealing as an
indigent person and the application is misconceived and is dismissed.
Steps be taken against the appellant for recovery of the balance Court
RFA No.751/2015 Page 1 of 8
fees.
4. Though the Trial Court record has not been requisitioned but the
decree impugned being on admissions, need therefor is not felt and it is
deemed expedient to hear this appeal today itself as the appellant who is
also present in person along with the counsel, appointed by the Delhi
High Court Legal Services Committee to assist her, is not agreeable to
pay any mesne profits during the pendency of the appeal. Moreover the
suit from which this appeal arises is of 2007 vintage and it is not
deemed expedient to deprive the respondent any further from the room
aforesaid in the school being run by the respondent in the said premises
if were to be found entitled thereto and that too without the appellant
depositing any mesne profits.
5. However at this stage it is found that the appeal is not even
accompanied with the copy of the pleadings on the basis of purported
admissions wherein the decree was passed.
6. The Trial Court record be requisitioned for through special
messenger.
7. List on 28th January, 2016."
2. The Trial Court file has been received and perused and counsels
heard.
3. The respondent filed the suit from which this appeal arises for
ejectment of the appellant from Room No.9 within the property of Nehru
Bal Samiti, Opposite R-2, South Extension Part-II, near Jain Mandir, New
Delhi and for recovery of mesne profits / damages for use and occupation
pleading i) that the respondent / plaintiff, a Society registered under the
Societies Registration Act, 1860, was/is inter alia running an unaided
recognised primary school upto Class V in the name and style of Bal Vikas
Vidhyalya at Masjid Moth, New Delhi; ii) that the land underneath the said
RFA No.751/2015 Page 2 of 8
school was granted on perpetual lease to the respondent / plaintiff; iii) that
the appellant / defendant in July, 2004 had approached the respondent /
plaintiff offering her voluntary services for the school aforesaid and the
respondent / plaintiff believing the representation made by the appellant /
defendant qua her educational qualifications allowed the appellant /
defendant to join the respondent / plaintiff to render her services as
voluntary honorary worker; iv) that the respondent / plaintiff also arranges
classes in the aforesaid premises on hourly basis for rendering service to
National Institute of Open School, New Delhi and to help the appellant /
defendant, started paying her a sum of Rs.3,000/- for the services being
rendered by the appellant / defendant; v) that the appellant / defendant on
her request was also allowed to use Room No.9 in the property of the
respondent / plaintiff at South Extension Part-II on leave and licence basis
for her residence; vi) that however upon the failure of the appellant /
defendant to submit original certificates of her educational qualification
which she had claimed to profess and on account of the conduct of the
appellant / defendant, the respondent / plaintiff in November, 2004 decided
to dispense with the honorary service of the appellant / defendant and so
informed the appellant / defendant about the same and also called upon the
appellant / defendant to vacate the aforesaid room in which she had been
permitted to reside; vii) that though the appellant / defendant filed CM(M)
No.1073/2006 in this Court for release of her salary but the said petition was
dismissed; viii) that the appellant / defendant however did not vacate the
aforesaid room and in or about the year 2005 instituted a suit against the
respondent / plaintiff inter alia for specific performance of the contract of
employment and in which suit an interim order restraining the respondent /
RFA No.751/2015 Page 3 of 8
plaintiff from taking over possession of the aforesaid room save by due
process of law was passed; and, ix) that the appellant / defendant has no
right to continue in occupation of the room aforesaid.
4. The appellant / defendant contested the suit by filing a written
statement contending i) that the respondent / plaintiff had employed the
appellant / defendant as a Resident Teacher initially for three years as
confirmed vide letter dated 29th November, 2004 and subject to further
extension and that she is residing in the said room in the said capacity; ii)
that the appellant / defendant was receiving her salary of Rs.3,000/- per
month after signing blank vouchers; iii) that on 15th December, 2004, the
respondent / plaintiff asked the appellant / defendant to vacate the said
room; iv) that the suit filed by the appellant / defendant for specific
performance of her contract of employment was still pending consideration
and till the pendency thereof the respondent / plaintiff could not claim
possession of the room from the appellant / defendant; v) that the
proceedings in the subject suit were liable to be stayed owing to the question
and issue therein being the subject matter of the previously instituted suit by
the appellant / defendant.
5. Though replication was filed by the respondent / plaintiff but need to
refer thereto is not felt.
6. The appellant / defendant filed an application under Section 10 of the
Code of Civil Procedure, 1908 which was dismissed in default and the
application filed for restoration thereof was also dismissed. The appellant
present in person states that she also filed a fresh application under Section
10 of the CPC but which was also dismissed.
RFA No.751/2015 Page 4 of 8
7. The suit though instituted on 22nd December, 2007 remained pending
for the reason of filing of one application or the other by the appellant /
defendant. The learned Additional District Judge (ADJ) has vide the
impugned order allowed the application of the respondent / plaintiff under
Order XII Rule 6 of the CPC and decreed the suit insofar as for the relief of
possession, on admissions, inter alia holding i) that according to the
appellant / defendant also she had joined the school of the respondent /
plaintiff as a Resident Teacher initially for three years only subject to further
extension; ii) that the appellant / defendant had not disputed the title of the
respondent / plaintiff to the property qua which possession was claimed; iii)
that the appellant / defendant had admitted that the respondent / plaintiff had
allowed her to use the room aforesaid on account of her services with the
respondent / plaintiff and that the respondent / plaintiff had not been
assigning any work to the appellant / defendant since January, 2005, iv) that
the appellant / defendant had not disputed that her status in the said room
was of a mere licencee; v) that it was also not in dispute that the said license
had been terminated by the respondent / plaintiff; vi) that thus as far as the
relief of possession was concerned, no disputed questions of law or fact
arose from the pleadings of the parties.
8. On enquiry, it is informed by the counsel for the appellant / defendant
that the suit filed by the appellant / defendant is still pending consideration
and is at the stage of evidence.
9. The Trial Court file contains:
i) the order of the learned Civil Judge, before whom the suit filed
by the appellant / defendant is pending, on the application of
the appellant / defendant under Order XXXIX Rule 1&2 CPC
RFA No.751/2015 Page 5 of 8
and restraining the respondent / plaintiff from dispossessing the
appellant / defendant from the said room without due process of
law;
ii) the plaint in the suit filed by the appellant / defendant against
the respondent / plaintiff and its Administrator, claiming the
reliefs:
a) of permanent injunction restraining the respondent /
plaintiff from terminating the services of the appellant /
defendant before the expiry of the period of three years;
b) for mandatory injunction directing the respondent /
plaintiff to extend the contract of service beyond three
years;
c) of declaration that the appellant / defendant continues as
a teacher in the school of the respondent / plaintiff.
10. Though I could not locate in the Trial Court record the letter on which
the appellant / defendant relies upon as the contract of her employment but
the counsel for the appellant / defendant has in Court shown certified copy
thereof and which is as under:
"Date: 29.11.2004
TO WHOMSOEVER IT MAY CONCERN
This is to certify that Miss Madhu Mallick D/o Late Shri R.S.
Mallick is residing in the campus of Nehru Bal Samiti, NBS
Educational Complex, Opp. R-2 South Ex. Part-II New Delhi-49
under the capacity of a resident Teacher since 1st July, 2004.
Sd/-
Narendra Multani
Director (Admn.)"
RFA No.751/2015 Page 6 of 8
11. The counsel for the appellant / defendant on enquiry states that the
contract averred by the appellant / defendant of three years with provision
for further extension is an oral one and else there is no letter of appointment
or contract of employment.
12. The counsel for the respondent / plaintiff has informed that upon the
respondent / plaintiff filing the suit from which this appeal arises, the
appellant / defendant had filed an application under Order XXXIX Rule 2A
of the CPC in the suit filed by her averring violation by the respondent /
plaintiff of the interim order in that suit and which application was
dismissed holding that there was no bar to the respondent / plaintiff taking
possession of the room in accordance with law.
13. In the aforesaid scenario, I am unable to find any error in the
impugned judgment and decree on admissions of recovery of possession
from the appellant / defendant of the room in her occupation.
14. As per the appellant / defendant‟s own plea, the contract even if any
of employment of the appellant / defendant with the respondent / plaintiff
was for a period of three years only and which period of three years also
expired as far back as in 2007. The appellant / defendant admittedly has not
been rendering services to the respondent / plaintiff since January, 2005
itself but is continuing in occupation of the property of the respondent /
plaintiff and which property was of the respondent / plaintiff, a society for
charitable purposes, used for running a school was allotted to appellant /
defendant on account of her rendering services to the said school of the
respondent / plaintiff. The appellant / defendant has already continued in
occupation of the accommodation, meant according to the appellant /
defendant herself for a Resident Teacher, apparently to the deprivation of
RFA No.751/2015 Page 7 of 8
the person now rendering service as Resident Teacher of the said School of
the respondent / plaintiff and for this reason also there is no right of the
appellant / defendant to continue in occupation of the said room.
15. Though undoubtedly the suit filed by the appellant / defendant is still
pending consideration and for which reason it is not deemed appropriate to
make any observation qua merits of the same but it is evident that the
appellant / defendant for the purposes of retaining possession of the room is
pursuing the said suit at her own slow pace, having already kept it pending
for the last over eleven years. Merely because a suit filed by the appellant /
defendant is pending consideration cannot be a ground to allow the appellant
/ defendant to continue in possession of the premises which admittedly were
allotted to her only on account of her then rendering services to the
respondent / plaintiff and which services also the appellant / defendant has
not been rendering for the last over eleven years.
16. There is thus no merit in the appeal.
Dismissed.
No costs.
Decree sheet be drawn.
RAJIV SAHAI ENDLAW, J.
JANUARY 28, 2016 „gsr‟ RFA No.751/2015 Page 8 of 8