Delhi High Court
Ram Raj Chaurasia vs Ram Bakshi & Anr. on 22 July, 2011
Author: Valmiki J. Mehta
Bench: Valmiki J.Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.221/2011
% 22nd July, 2011
RAM RAJ CHAURASIA ...... Appellant
Through: Mr. O.N.Sharma, Adv.
VERSUS
RAM BAKSHI & ANR. ...... Respondents
Through: Mr. S.K.Chawla, Adv.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
1. Whether the Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the Digest?
VALMIKI J. MEHTA, J (ORAL)
1. The challenge by means of this First Appeal is to the impugned judgment dated 10.3.2011 which decreed the suit of the respondents/plaintiffs under Order 12 Rule 6 CPC by granting possession.
2. The facts of the case are that the respondents'/plaintiffs' predecessor-in-interest, i.e. their father late Shri Kewal Mohan Bakshi, a blind person was allotted a license/tehbazari rights by the NDMC with respect to a semi wooden khoka of 7"X5", opposite Modern Bazaar, Near Police Assistance Booth, Vasant Lok, Vasant Vihar, New Delhi. There was an understanding between Shri Kewal Mohan Bakshi, the blind person and the present appellant/defendant with respect to the running of the kiosk. RFA No.221/2011 Page 1 of 4 On account of the disputes and differences, a suit was filed by the present appellant against Shri Kewal Mohan Bakshi resulting in a compromise by which the appellant was to pay a sum of Rs.8,000/- per month with 10% increase on every 2 years. Shri Kewal Mohan Bakshi died on 22.3.2002 and the respondents'/plaintiffs' mother also died on 29.3.2002. Alleging that the appellant was a regular defaulter in payment of the license fee, the respondent/plaintiff terminated the license by notice dated 9.3.2010 and thereafter filed the subject suit for mandatory injunction. I may note that once a licensee is always a licensee. If the respondent was a licensee of the NDMC, then, the appellant cannot have any rights better than a sub-licensee. The rights under a license are capable of being terminated, and nothing has been pointed out to me that a permanent license was given to the appellant in terms of a compromise decree between the parties in a Civil Court.
3. The Trial Court while disposing of the suit has rightly given the following conclusions for passing of the judgment and decree under Order 12 Rule 6 CPC:-
3.1 (Findings) - After assessing the record in the light of case law and statutory provisions of law, the plaintiffs' first application under order XII Rule 6 CPC is allowed, for the following reasons -
(a) plaintiffs' predecessor in interest Shri Kewal Mohan Bakshi was licensee of the premises and on the same terms, MCD by letter dated 1249/AC/SZ/02, dated 04.09.2002 mutated the same in favour of present plaintiffs after demise of Shri Kewal Mohan Bakshi. it has been mutated through their guardian Shri Chander Mohan Bakshi, therefore, it also carries no weight in defendant's submissions that there was no authority to Shri Chander Mohan Bakshi to represent plaintiff no.2 as guardian;RFA No.221/2011 Page 2 of 4
(b) Tehbazari is combination of two words i.e. "Teh" + Bazari", meaning thereby, to utilize surface for the purpose of commercial activity and it does not create interest in the land but to utilize the same, which amounts to licence;
(c) it is settled principle of law that one cannot deliver more than one has. licensee is always a licensee, which has also been held in Sant Lal Jain Vs. Avtar Singh UJ SC 1985 (Page 609). The law laid-down in Chandu Lal, Bal Krishan, Madan Mohan, Mohan Lal Vs. MCD (Supra) also applies to the circumstances of present case;
(d) hence, the defendant cannot construe that the amount of Rs.8,000/- per month was a rent, otherwise the admitted record of application under order XXIII Rule 1 CPC of Suit No.27/1998 does not use expression "tenancy" or "rent";
(e) it is paradoxical stand of the defendant, as on the one hand, he claims that because of his long occupancy of the premises, he became licence holder and on the other side, he has been claiming that amount was paid upto August 2010 to the plaintiffs; if so, for what he was paying/ in fact, he admits that he has been paying charges as licence fee for using the premises/kiosk;
(f) the plaintiffs' notice dated 09.03.2010 or reply dated 12.03.2010 by the defendant, with a clear note that they may file a suit, which may be defendant by the defendant, however, no response was given to the allegations containing in the notice, therefore, the law laid-down in Kalu Ram vs. Sita Ram (Supra) applies to the present case qua the issue under discussion in this order; and
(g) since, it is an admitted case of defendant that there was a relationship of licensor and licensee, it was terminated by notice dated 09.03.2010 and defendant failed to handover the premises to the plaintiffs."
4. No fault can be found with the aforesaid findings and conclusions as there are admitted facts of the appellant being a sub- licensee and whose license was, in fact, terminated by the legal notice dated 9.3.2010 and therefore appellant was liable to vacate the premises. RFA No.221/2011 Page 3 of 4
5. Learned counsel for the appellant relied upon Pushpa Devi Bhagat Vs. Rajinder Singh and Ors., 2006 (5) SCC 566 to argue that a compromise decree is binding. There is no dispute with this proposition of law, however, the compromise decree nowhere grants permanent licensee rights to the appellant, and therefore, the respondent was justified in terminating the license. I may note that the respondent has already executed the decree and taken possession of the suit premises.
Accordingly, I do not find any merit in the appeal. The appeal is therefore dismissed, leaving the parties to bear their own costs. CM Nos.7753/11(stay), 9305/11(stay) & 9306/11(exemption) No orders are required to be passed in these applications as the appeal itself has been dismissed.
JULY 22, 2011 VALMIKI J. MEHTA, J.
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RFA No.221/2011 Page 4 of 4