Delhi District Court
Babu Lal vs M/S Sir Sobha Singh & Sons Pvt. Ltd on 31 October, 2012
1
IN THE COURT OF COMMERCIAL CIVIL JUDGE, PATIALA
HOUSE COURTS, NEW DELHI
Suit No:11/2012
Babu Lal .....Plaintiff
Versus
1. M/s Sir Sobha Singh & Sons Pvt. Ltd.
2. New Delhi Municipal Council(NDMC) .....Defendants
ORDER
1. Vide this order I shall decide the application u/o 39 rule 1& 2 CPC filed by the applicant/plaintiff by way of which plaintiff seeks directions against the defendant/respondent/non applicant No:1 directing them to repair, renovate the Jhuggi/Hut of the plaintiff to its original shape and condition either at their own cost and expenses, or in the alternative, allow/permit the plaintiff to do the same at their own cost as it existed on or before 122012 at its then existing site as shown in the site plan known as Jhuggi/Hut No:B3, THuts, Near/Behind Gurudwara Singh Sabha, Sujan Singh park, New Delhi along with further injunction thereby restraining them Suit No:11/2012, Babu Lal Vs. M/s Sir Sobha Singh & Sons Pvt. Ltd. & New Delhi Municipal Council(NDMC) 2 from dispossessing or extending threats of dispossession from the suit site in future without due process of law. Briefly stated the facts of the case are as under:
2. The case of the plaintiff, as stated in the plaint, is that he is an illiterate person, was/is in actual physical possession of a temporary Jhuggi/Hut No:B3, THuts, Near/Behind Gurudwara Singh Sabha, Sujan Singh park, New Delhi, alongwith his father and family ever since his birth since 8th April, 1953, as per the site plan attached as annexure P1(Colly). It is stated by the plaintiff that he is having his Ration Card , his own passport, election card, PAN card, Bank Account, School Certificate of his children, his own driving licence etc at the address of the aforesaid Hut/Jhutti, which prove his physical possession over the suit property. It is further stated by the plaintiff that the land upon which the suit property situates allegedly belongs to the Land and Building Department of Ministry of Urban Development, Government of India, who had never disturbed the plaintiff or his family members in any manner.
3. It is averred by the plaintiff that he had already acquired Suit No:11/2012, Babu Lal Vs. M/s Sir Sobha Singh & Sons Pvt. Ltd. & New Delhi Municipal Council(NDMC) 3 the ownership right in respect of the suit property by law of adverse possession against the true owner that ie L&DO/UOI by virtue of his being in continuous and uninterrupted possession over the suit land.
4. It is stated that defendant No:1/company is not the owner of the land over which the suit premises situates. It is averred that defendant No:1 company was allegedly leased out the adjacent land to the suit property by the L&DO on the basis of an agreement to lease and thereafter upon execution of a Temporary Lease and the said lease is stated to have not been renewed nor the UOI has executed any perpetual lease deed in favour of the defendant No:1.
5. It is averred by the petitioner that his father was never allotted any Servant Quarter in the alleged leasehold land/property of the defendant No:1 at any point of time, in fact the servants quarter of the defendant No:1 are situated far away from the Hut/Jhuggi/suit property of the petitioner and were/are completely built up rooms, where as the Jhuggi of the petitioner is a temporary shed.
6. It is stated by the plaintiff that the defendant No:1, in the Suit No:11/2012, Babu Lal Vs. M/s Sir Sobha Singh & Sons Pvt. Ltd. & New Delhi Municipal Council(NDMC) 4 year 2000, filed a false case u/s 14(1)(i) of DRC Act, and in which it was alleged that the father of the petitioner was working with the defendant No;1 company a dn on account of his employment the defendant No;1 company allotted him the alleged servant quarter behind Gurudwara Guru Singh Sabha, Sujan Singh park, New Delhi in the year 1962 for his residence purpose. It is further stated that in the aforesaid eviction petition the petitioner has raised various objections as stated in the main plaint herein, which are not being repeated here for the sake of brevity. It is submitted that despite the objections raised by the plaintiff in the said eviction petition, the same was finally decided and an order of eviction was passed against the petitioner vide order dt. 422008 and against the said order the petitioner filed appeal before the Ld. ARCT, New Delhi and the said appeal of the petitioner was dismissed by Ld. ARCT, New Delhi vide order/judgment dt.692011.
7. It is further stated that defendant No:1 filed execution petition No:08/2011 dt.13122011 for the execution of the impugned eviction order of Ld. ARC and on 122012, Suit No:11/2012, Babu Lal Vs. M/s Sir Sobha Singh & Sons Pvt. Ltd. & New Delhi Municipal Council(NDMC) 5 the Bailiff with heavy police force forcible taken the possession of the suit premises from the plaintiff. It is stated that plaintiff lodged a police complaint to PCR at 100 number on 122011 but no legal action was taken by the local police. It is stated that on 222012, the employees and staff of the defendant No:1 demolished the Jhuggi/Hut/suit property, and again plaintiff reported the matter to the police at 100 number and the demolition was then stopped by the police.
8. It is stated by petitioner that the employees and staff of the defendant No:1 are not threatening the plaintiff that if the plaintiff would make any effort to repair and restore his damaged Jhuggi to its original stage, they they would report the matter to the NDMC and would get the same demolished again with the help of police, therefore, the NDMC has been arrayed as defendant NO;2 in the present suit. Hence the present suit.
9. Written statement filed on behalf of the defendant No:1 wherein it is stated that that judgment dated 1622012 passed by the Hon'ble High Court of Delhi in CM(M) No:
89/2012 and CM No;134344/2012 and 269/2012 titled Suit No:11/2012, Babu Lal Vs. M/s Sir Sobha Singh & Sons Pvt. Ltd. & New Delhi Municipal Council(NDMC) 6 Babu Lal Vs. Sir Sobha Singh & Sons (P) Limited has attained finality and this fact has been suppressed by the plaintiff from this court. It is further stated that an issue or point decided and attaining finality should not be allowed to be reopened and agitated again and again. It is submitted that judgments delivered by Ld. ARCs, Ld. ARCT and Hon'ble High Court are in accordance with law, hence the present suit of the plaintiff is without any merits and liable to be dismissed. It is stated by the defendant No:1 that the issue of adverse possession, with regard to the suit property, has already been decided by the Ld. ARCs, Ld. ARCT and Hon'ble High Court. It is submitted that suit of the plaintiff is bad for misjoinder and nonjoinder of necessary parties as on the one hand the plaintiff alleged that land upon which suit property situates belongs to the Land and Development Department, Government of India and he has no grievance against the UOI/L&DO and on the other hand he has not impleaded LIDO and UOI as parties tot eh present suit, therefore, the present suit of the plaintiff is liable to be dismissed on this ground also.
Suit No:11/2012, Babu Lal Vs. M/s Sir Sobha Singh & Sons Pvt. Ltd. & New Delhi Municipal Council(NDMC) 7 It is stated that legal possession of the suit property has been taken over from the plaintiff in eviction suit filed against the plaintiff in the year 2000 as the jurisdiction vested with Rent Controller under the Delhi Rent Control Act, 1958 and reopening of the case which has attained finality on 1622012 is an abuse of the process of law.
It is submitted that the father of the plaintiff Budha , who was in the service and employment of the defendant No:1, has since expired, therefore, the suit premises was in unauthorized occupation of his son(Plaintiff). It is stated that defendant No:1 instituted eviction proceedings against the plaintiff u/s 14(1)(I) of DRC Act. It is stated that the father of the plaintiff was let out to the father of the plaintiff as residence on account of his being in the service/employment with the defendant No:1 and after the death of Budha he had ceased to be in service/employment of the defendant No;
1. It is further stated that eviction suti of the defendant No:1 was decreed on 122005 by Ld. ARC, Sh. V.K. Goel, which order was challenged by plaintiff before Tribunal and vide its order dt.2992006, Ld. Tribunal was pleased Suit No:11/2012, Babu Lal Vs. M/s Sir Sobha Singh & Sons Pvt. Ltd. & New Delhi Municipal Council(NDMC) 8 to set aside the order dt.122005 of Ld. ARC and remanded back the case with the liberty to the parties to lead additional evidence in the form of documents. It is stated that finally the eviction decree was again passed against the plaintiff in the eviction suit No:696/07/00 by Sh. Amit Kumar, the then Ld. ARC, Tis Hazari, Delhi and plaintiff also challenged the eviction decree before ARCT, New Delhi and his RCTA No:24/2008 was dismissed on 692011. It is submitted that further plaintiff filed CM (M) No:89/2012 and Cm No:134344/2012 and 2693/2012 before the Hon'ble High Court of Delhi and the said petitions of the plaintiff has been dismissed on 1622012.
It is denied by the defendant No:1 that the land on which suit property situates belongs to Land and Building Department, Ministry of Urban Development, Government of India. It is submitted that entire Sujan Singh Park belong to defendant No:1. It is further denied that the defendant No:1 is not the owner of the suit property. Defendant No:1 denied that after the death of Budha, the father of the plaintiff, the plaintiff and his Suit No:11/2012, Babu Lal Vs. M/s Sir Sobha Singh & Sons Pvt. Ltd. & New Delhi Municipal Council(NDMC) 9 family members continued to live and enjoying the suit premises without any objection from the answering defendant No:1. It is submitted that the intention of the plaintiff is bad as he is making efforts toreentered in to the suit property. It is stated that defendant No:1 has full right to protect his property by the encroacher's. It is denied by the defendant No:1 that plaintiff is entitled to any relief claimed in the present suit. It is prayed by defendant No:1 that suit of the plaintiff be dismissed with heavy cost.
10. Written statement also filed on behalf of the NDMC/defendant No:2 wherein it is stated that there is no cause of action against them and the suit of the plaintiff is not maintainable against them and liable to be rejected under order VII rule 11 CPC. It is further stated that no notice u/s 80 CPC served upon the defendant/NDMC, therefore, the suit is liable to be dismissed on this ground alone. It is stated that land in question does not pertains to NDMC and they have no role to play in the same. It is submitted that NDMC is only responsible to remove the Jhuggies/encroachment Suit No:11/2012, Babu Lal Vs. M/s Sir Sobha Singh & Sons Pvt. Ltd. & New Delhi Municipal Council(NDMC) 10 from the NDMC land and not on private land. The NDMC/respondent No:2 has denied the allegations leveled against them and it is stated that the suit of the plaintiff is liable to be dismissed with heavy cost.
11. I have heard the ld. Counsel for the parties at bar and perused the record carefully.
12. Grant of temporary injunction is governed by three basic principles i.e. prima facie case, balance of convenience and irreparable injury, which are required to be considered in proper perspective under the facts and circumstances of each case and no straitjacket formula can be laid down. Court has to assess the pleadings of the parties and the documents placed on record to find out if the ingredients/principles governing the grant of temporary injunction are made out or not.
13. In Gujarat Bottling Co. Ltd. vs. Coca Cola Company and Others, 1995(5) SCC 545, the Hon‟ble Supreme Court, inter alia, observed as under: "The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the Suit No:11/2012, Babu Lal Vs. M/s Sir Sobha Singh & Sons Pvt. Ltd. & New Delhi Municipal Council(NDMC) 11 action if the uncertainty were resolved in his favour at the trial. The need for such protection has, however, to be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The court must weigh one need against another and determine where the „balance of convenience‟ lies."
14. In Colgate Palmolive (India) Ltd. vs. Hindustan Lever Ltd., AIR 1999 SC 3105, The Apex Court crystallized the conditions which ought to weigh with the court hearing the application or petition for the grant of injunctions as below: "(i) Extent of damages being an adequate remedy;
(ii) Protect the plaintiff's interest for violation of his rights though however having regard to the injury that may be suffered by the defendants by reason therefor ; (iii) The court while dealing with the matter ought not to ignore the factum of strength of one party's case being stronger than the others; (iv) No fixed rules or notions ought to be had in the matter of Suit No:11/2012, Babu Lal Vs. M/s Sir Sobha Singh & Sons Pvt. Ltd. & New Delhi Municipal Council(NDMC) 12 grant of injunction but on the facts and circumstances of each case the relief being kept flexible; (v) The issue is to be looked from the point of view as to whether on refusal of the injunction the plaintiff would suffer irreparable loss and injury keeping in view the strength of the parties' case; (vi) Balance of convenience or inconvenience ought to be considered as an important requirement even if there is a serious question or prima facie case in support of the grant;
(vii) Whether the grant or refusal of injunction will adversely affect the interest of general public which can or cannot be compensated otherwise."
15. In Zenit Mataplast Private ltd. vs. State of Maharashtra & Ors.', Civil Appeal No. of 2009, decided on 11th September, 2009 by theApex Court, the considerations which the Court must keep in mind while hearing on the application for grant of interim injunction as laid down in Colgate Palmolive (India) Ltd's case (supra) were followed.
16. In „Dalpat Kumar & Anr. Vs. Prahlad Singh & Ors., AIR 1993 SC 276', the Supreme Court explained Suit No:11/2012, Babu Lal Vs. M/s Sir Sobha Singh & Sons Pvt. Ltd. & New Delhi Municipal Council(NDMC) 13 the scope of aforesaid material circumstances, but observed as under: "The phrases 'prima facie case', 'balance of convenience' and ' irreparable loss' are not rhetoric phrases for incantation, but words of width and elasticity, to meet myriad situations presented by man's ingenuity in given facts and circumstances, but always is hedged with sound exercise of judicial discretion to meet the ends of justice. The facts rest eloquent and speak for themselves. It is well nigh impossible to find from facts prima facie case and balance of convenience."
17. The expression "prima facie" means at the first sight or on the first appearance or on the face of it, or so far as it can be judged from the first disclosure. Prima facie case means that evidence brought on record would reasonably allow the conclusion that the plaintiff seeks. The prima facie case would mean that a case which has proceeded upon sufficient proof to that stage where it would support finding if evidence to contrary is disregarded. [see Black's Law Dictionary]". The Supreme Court in Marin Burn Ltd. v. R.N. Banerjee 1958I L.L.J. 247 held that 'A prima facie Suit No:11/2012, Babu Lal Vs. M/s Sir Sobha Singh & Sons Pvt. Ltd. & New Delhi Municipal Council(NDMC) 14 case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the same were believed. While determining whether a prima facie case had been made out, the relevant consideration is whether on the evidence led it was possible to arrive at the conclusion in question and as to whether that was the only conclusion which could be arrived at on that evidence.' In Gujarat Electricity Board, Gandhinagar v. Maheshkumar and Co., Ahmedabad (1995(5) SCC 545,) wherein it was held that "Prima facie case" means that the Court should be satisfied that there is a serious question to be tried at the hearing, and there is a probability of Plaintiff obtaining the relief at the conclusion of the trial on the basis of the material placed before the Court. "Prima facie case" is a substantial question raised bona fide which needs investigation and a decision on merits. The Court, at the initial stage, cannot insist upon a full proof case warranting an eventual decree. If a fair question is raised for determination, it should be taken that a prima facie case is established. The real thing to be seen is that the Suit No:11/2012, Babu Lal Vs. M/s Sir Sobha Singh & Sons Pvt. Ltd. & New Delhi Municipal Council(NDMC) 15 Plaintiff‟s claim is not frivolous or vexatious.''
18. Interim order is passed as a temporary arrangement to preserve the status quo till the matter is decided finally, to ensure that the matter does not become either infructuous or a fate accompli before the final hearing. The purpose of an interlocutory injunction is, to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty was resolved in his favour at the trial.
19. In the present case the legal proceedings between the parties have already been disposed of by the courts of the ARC and the ARCT. The execution proceedings have also been culminated. The plaintiff has been dispossessed through legal means. In the present case the plaintiff has failed to show that he has a prima facie case made out in his favour.
20. The various issues raisedherein have already been decided by the Hon'ble Delhi High Court in matter between the same parties involving the same premises i.e. a quarter behind Gurdwara Singh Sabha, Sujan Singh Suit No:11/2012, Babu Lal Vs. M/s Sir Sobha Singh & Sons Pvt. Ltd. & New Delhi Municipal Council(NDMC) 16 Park, New Delhi. As per paragraph 5 of the judgment dated 16.02.2012 passed in CM(M) 89/2012 & CM Nos. 134344/2012 & 2693/2012 :
"5. The landlord is admittedly the owner of the suit premises. On the basis of evidence both oral and documentary adduced before the trial court clear and categorical finding had been returned that Budha (father of the petitioner) was in the service and employment of the respondent; this fact has been admitted by the petitioner himself; clear finding had also been returned that these premises had been given to Budha for residential purpose because he was an employee of the respondent; after his death, his son is in unauthorized occupation of the suit premises; he has no right, title or interest in the suit premises. In these circumstances, the eviction order passed against the tenant and in favour of the landlord by the two fact finding courts does not call for any interference. No perversity or illegality has been pointed out before this Court which calls for an interference."
21. It is where there is doubt as to the adequacy of the Suit No:11/2012, Babu Lal Vs. M/s Sir Sobha Singh & Sons Pvt. Ltd. & New Delhi Municipal Council(NDMC) 17 respective remedies in damages available to either party or to both, that the question of balance of convenience arises. In Bikash Chandra Deb vs Vijaya Minerals Pvt. Ltd.: 2005 (1) CHN 582, the Hon'ble Calcutta High Court observed that issue of balance of convenience, it is to be noted that the Court shall lean in favour of introduction of the concept of balance of convenience, but does not mean and imply that the balance would be on one side and not in favour of the other. There must be proper balance between the parties and the balance cannot be an onesided affair. In Antaryami Dalabehera vs Bishnu Charan Dalabehera: 2002 I OLR 531, as this point, it was held that balance of convenience, which means, comparative mischief for inconvenience to the parties. The inconvenience to the petitioner if temporary Injunction is refused would be balanced and compared with that of the opposite party, if it is granted. In the case of Orissa State Commercial Transport Corporation Ltd. v. Satyanarayan Singh, (1974) 40 Cut LT 336, observed:
'Balance of convenience' means the comparative mischief or inconvenience to the parties. The inconvenience to the Suit No:11/2012, Babu Lal Vs. M/s Sir Sobha Singh & Sons Pvt. Ltd. & New Delhi Municipal Council(NDMC) 18 plaintiff if temporary injunction is refused would be balanced and compared with that to the defendant if it is grants ed If the scale of inconvenience leans to the side of the plaintiff, then alone interlocutory injunction should be granted." In Anwar Elahi vs Vinod Misra And Anr. 1995 IVAD Delhi 576, 60 (1995) DLT 752, 1995 (35) DRJ 341 it was held that ' Balance of convenience means that comparative mischief or inconvenience which is likely to issue from withholding the injunction will be greater than that which is likely to arise from granting it. In applying this principle, the Court has to weigh the amount of substantial mischief that is likely to be done to the applicant if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted.'
22. In the present case the plaintiff has utterly failed to show how the balance of convenience lies in his favour.
23. In the case of Orissa State Commercial Transport Corporation Ltd. v. Satyanarayan Singh, (1974) 40 Cut LT 336, observed: 'Irreparable injury' means such injury Suit No:11/2012, Babu Lal Vs. M/s Sir Sobha Singh & Sons Pvt. Ltd. & New Delhi Municipal Council(NDMC) 19 which cannot be adequately remedied by damages. The remedy by damages would be inadequate if the compensation ultimately payable to the plaintiff in case of success in the suit would not place him in the position in which he was before injunction was refused. The Supreme Court in Hindustan Petroleum Corporation v. Shrinarayan and Ors., (2002) 5 SCC 760, has held with regard to grant of interlocutory injunction which can also be applied with regard to grant of permanent injunction. It is specifically clear from the above principle that with regard to grant of permanent injunction the Court has to see that whether plaintiff has a legal right asserted by him in his favour or by violation of his right he would suffer irreparable injury.
24. The injury caused to a plaintiff must be of a nature where law can come to the rescue. If a defendant dispossesses the plaintiff through legal means then it cannot be said that the plaintiff has suffered an irreparable loss in terms of Order 39 Rules 1 & 2 CPC. In the present case the plaintiff has not been able establish any legal injury.
Suit No:11/2012, Babu Lal Vs. M/s Sir Sobha Singh & Sons Pvt. Ltd. & New Delhi Municipal Council(NDMC) 20
25. In view of the facts and circumstances of the case the application under O.39 Rules 1 & 2 is dismissed. Nothing of what has been stated herein above shall have any bearing on the merits of the case.
26. Be put up for documents, A/D and issues on 11122012.
Announced in the open court on this 31st day of October, 2012. (VEEMA RANI) COMMERCIAL CIVIL JUDGE:
NEW DELHI Suit No:11/2012, Babu Lal Vs. M/s Sir Sobha Singh & Sons Pvt. Ltd. & New Delhi Municipal Council(NDMC)