Delhi District Court
Shri Nityanand Chaudhary vs Smt. Partibha Devi on 30 January, 2016
In the Court of Ms. Shivali Sharma : Additional Senior Civil Judge of
Central District at Tis Hazari Courts, Delhi
RCA No. 26/2015
Unique I.D. No. 02401C0426782014
In the matter of:-
Shri Nityanand Chaudhary,
Son of Shri Rajeshwar Chaudhary,
R/o A-1/30/3, Opposite Rani Public School,
Sant Nagar, Burari, Delhi-110084
......Appellant
VERSUS
Smt. Partibha Devi,
House No.301, Pratibha Shopping Complex,
Gali No. 14, Main Market,
Sant Nagar, Burari, Delhi-110084
......Respondent
Date of Institution : 17.08.2015
Reserved for Judgment : 23.01.2016
Date of Decision : 30.01.2016
JUDGMENT
1. This is an appeal arising out of an order dated 16.07.2015 passed by Ld. Trial Court whereby the suit of the plaintiff was decreed. The appellant herein was the defendant in the original suit and the respondent was the plaintiff therein. For the sake of convenience, parties shall be referred to by their nomenclature in the main suit.
Plaintiff's case
2. Plaintiff filed a suit for permanent injunction (which was later on amended) claiming herself to be the owner of suit property bearing no. 301, Gali No. 14, Main Market, Sant Nagar, Burari, Delhi. She raised and completed construction of first floor of the suit property in the year RCA No. 26/2015 Nityanand Chaudhary v. Partibha Devi Page no. 1/ 11 1997, however the basement and the other portions of the suit property were under construction. The defendant approached the plaintiff for taking on rent a shop situated on the first floor of the suit property and the terms and conditions were orally settled. The defendant had agreed to make the payment of rent @ Rs.1500/- per month and the electricity charges at the flat rate Rs.200/- per month till the installation of sub-meter when the defendant would make the payment as per consumptions and at the rate fixed by the DVB per unit. The defendant occupied the tenanted premises since 18.10.1988 and the rent and electricity were to be paid on the completion of the tenancy month regularly and punctually without any default. The plaintiff used to visit and supervise the construction work from time to time.
3. The defendant started the business of sale of electrical goods such as fans, heather, cooler etc. and has made the payment of rent up to the month of April, 2000. Subsequently, intentions of the defendant became malfide and he withheld the rent and electricity charges without any reasons. The plaintiff repeatedly requested the defendant to make the payment of electricity and rent charges but the defendant has been avoiding to make the payment on the pretext that there was slum in the market and therefore he will make the payment after the Diwali festival.
4. The plaintiff was surprised when she visited the suit property on 03.10.2000 and found that the defendant has started using the vacant possession between the stairs and close to the road side, the space left the plaintiff out of his own plot to be utilized by her for her own parking as and when the plaintiff shifts to the residential place which is at the top of this shopping complex. The defendant has no legal right over RCA No. 26/2015 Nityanand Chaudhary v. Partibha Devi Page no. 2/ 11 vacant space which is exclusively under the possession of the plaintiff. The defendant is a tenant in respect of Shop no. 9 situated on the first floor and the same can be utilized only by the defendant for the commercial activities for which it has been let out. The plaintiff requested the defendant not to keep any articles on the vacant portion of the plot but the defendant refused to heed to the request of the plaintiff and has malafide intentions to claim the vacant possession of the plot. The plaintiff as she is raising the constructions of the parapet walls has kept bricks over the portion shown red in the site plan but the defendant has threatened that he shall keep the articles for sale after taking out those articles from the Shop no. 9 to the vacant portions and thereafter keep back those articles in shop no. 9 at the time of closure of the shop.
5. Hence, the present suit has been filed seeking a decree of permanent injunction directing the defendant and his agents, servants, employees etc. to remove the goods displayed for sale on cot from the portion as shown in red in the site plan and for restraining them from displaying the goods on the place shown in red in the site plan of the suit property.
Defendants' case
6. In his written statement, defendant has primarily objected on the ground that the present suit is nothing but a counterblast to the previously instituted suit for mandatory and permanent injunction filed by defendant against the plaintiff and others.
7. On merits, it is stated that defendant was inducted as a tenant by plaintiff and her husband in respect of one shop in semi-basement RCA No. 26/2015 Nityanand Chaudhary v. Partibha Devi Page no. 3/ 11 of the suit property as this rented shop is 3 feet below and 4 feet above the ground/road in front of the tenanted shop, some 5 years back at a monthly rent of Rs.300/- excluding electricity charges at the rate of Rs.100/- per month with common facility of latrine. The basement of this building was not at all under construction at the time of filing of present suit.
8. The defendant regularly paid the rent at the rate of Rs.300/- per month and electricity charges at the rate of Rs.100/- per month upto August, 2000 but no rent receipts were ever issued by the plaintiff or her husband. On 19.09.2000, the plaintiff and her husband came to the defendant and requested him to handover the tenanted shop of the defendant at the semi basement to them for 3-4 days for carrying out repairs/plastering etc. in the same. The relations between the parties were good and the proposed repairs/plastering etc. was in the interest of the tenanted shop due to which the defendant agreed. Plaintiff and her husband also offered to the defendant a shop at the ground floor of the same building as an alternative arrangement for running his shop for this short period of 3-4 days and also allowed the defendant to sale his electric goods by displaying the same on a cot outside the gate of actual tenanted shop of the defendant at semi-basement. As such from 20.09.2000 the defendant started running shop at ground floor (first floor according to the plaintiff) and also started selling his electrical goods by displaying the same on a cot outside the gate of actual tenanted shop of the defendant in semi-basement. To this open space outside the gate of actual tenanted shop of defendant in semi- basement in which defendant started selling his electrical goods by displaying the same on a cot, the plaintiff is mentioning the open space/portion shown red in the site plan filed by the plaintiff along with her plaint. After repairs/plastering etc. in 3-4 days, the plaintiff and her RCA No. 26/2015 Nityanand Chaudhary v. Partibha Devi Page no. 4/ 11 husband instead of restoring back the actual tenanted shop of the defendant at semi-basement rather they along with their son Raju demolished the back wall of this tenanted shop of the defendant in semi-basement and as there was a hall at the back of the same and merged the tenanted shop of the defendant into this hall for restoration of this tenanted shop of defendant, a suit for mandatory and permanent injunction has already been filed by defendant against plaintiff and her husband and son which is pending disposal. The defendant is ready to make the payment of rent of his tenanted shop at semi-basement from the period when the same will be restored back by plaintiff and her husband to the defendant at the agreed rate of Rs.300/- per month and electricity charges at the agreed rate of Rs.100/- per month.
9. The defendant has every right to continue with the alternate arrangement provided by the plaintiff herself and her husband till the actual tenanted shop of the defendant at semi-basement is restored back to the defendant by the plaintiff and her husband. Rather the plaintiff has no right to disturb this alternate arrangement till the actual tenanted shop of the defendant in semi-basement is restored back to the defendant. Other allegations have been denied and dismissal of the suit is prayed.
Issues
10. Vide order dated 31.10.2003, following issues were framed by the ld. Trial Court :
1. Whether the plaintiff is entitled to a decree of permanent injunction, as prayed for in para 'A'? OPP RCA No. 26/2015 Nityanand Chaudhary v. Partibha Devi Page no. 5/ 11
2. Whether the suit of the plaintiff is liable to be stayed under Section 10 CPC?
3. Relief.
Plaintiff's Evidence
11. In order to prove her case, plaintiff examined herself as PW1 and stated and reiterated on oath the contents of her plaint in her affidavit evidence Ex.PW-1/A. She has relied upon certain documents. Ex.PW1/1 is copy of his sale deed. Ex.PW1/2 is site plan. Ex.PW1/3 is copy of order dated 06.04.2002. Ex.PW1/4 is copy of Lease Agreement executed between the plaintiff and Shri Ashok Kumar in respect of one shop in the market complex executed on 05.05.2000.
12. PW2 is Shri Ramanand Tyagi, neighbourer of the plaintiff who supported the case of the plaintiff.
13. PW3 is Shri Vijay Verma, Assistant Ahlmad in the Court of Shri Balwant Rai Bansal, the then ld. Civil Judge, Delhi who brought the summoned file of suit bearing no. 100/03 titled Smt. Pratibha Devi versus Shri S. Kumar and proved the sale deed Ex.PW1/1 and the lease deed dated 05.05.2000 dated Ex.PW1/4.
Defendants Evidence
14. Defendant has examined himself as DW1 who stated and reiterated on oath the contents of his written statement in his affidavit Ex.DW1/A. RCA No. 26/2015 Nityanand Chaudhary v. Partibha Devi Page no. 6/ 11
15. DW2 is Shri Lal Kishore Chaudhary, a neighbourer of the parties who supported the case of the defendant.
16. DW2 is the summoned witness who produced the original of sale deed Ex.DW1/1. The site plan annexed with the sale deed Ex.DW1/1 was also proved as Ex.DW2/1.
Findings of Ld. Trial Court
17. Ld. Trial Court after hearing the arguments of both the parties vide impugned order dated 16.07.2015 decreed the suit of the plaintiff and passed a decree of permanent injunction in favour of the plaintiff and against the defendant thereby restraining the defendant to display or sell any kind of goods, materials etc. either on a cot or in any manner in front of property bearing no. 301, Gali no. 14, Pratibha Shopping Complex, Main Market, Sant Nagar, Burari, Delhi as shown in the site plan.
Grounds of Appeal
18. The defendant has challenged the impugned judgment and decree dated 16.07.2015 on the ground that the same is contrary to the law, facts and evidence available on record. The suit of the plaintiff seeking permanent injunction simplicitor was not maintainable without seeking the relief of possession as admittedly the defendant is in possession of the suit space. A grave error of law has been committed by not staying the suit of the plaintiff under Section 10 CPC while deciding the issue no. 2. Ld. Trial Court failed to appreciate that in Suit no. 934/2010 the subject matter was shop no. 9 and not the suit space in the present suit. However, in the earlier suit filed by the defendant RCA No. 26/2015 Nityanand Chaudhary v. Partibha Devi Page no. 7/ 11 for possession, mandatory and permanent injunction the subject matter was the actual tenanted shop of the defendant at semi basement level as well as the open space which is the subject matter of the present suit. The said suit is still pending and was instituted prior in time to the present suit. Accordingly, the present suit should have been stayed under Section 10 CPC.
Arguments of Respondents
19. Per contra, it has been argued on behalf of plaintiff that impugned order is a well reasoned order passed on the basis of material available on record. It suffers from no illegality or infirmity and accordingly, does not deserve any interference by this Court.
Findings
20. Submissions have been heard and record has been carefully perused.
21. Now I shall give to my issuewise findings.
Issue no. 2 : Whether the suit of the plaintiff is liable to be stayed under Section 10 CPC?
22. Ld. Trial Court has dealt with this issue in detail. Before Ld. Trial Court, the parties had pleaded existence of two prior suits. The first was a suit for possession, ejectment, arrears of rent, damages or mesne profits in respect of Shop no. 9 filed by the plaintiff herein bearing no.934/10. Admittedly the said suit was decided on 28.03.2013 i.e. more than two years prior to the decision in the present case.
RCA No. 26/2015 Nityanand Chaudhary v. Partibha Devi Page no. 8/ 11 Accordingly, Section 10 CPC was not applicable qua the said suit. The second suit was a suit for permanent and mandatory injunction filed by the defendant herein against the plaintiff. It is alleged by the defendant in the present appeal that the subject matter in the said earlier suit of the plaintiff was the initially tenanted shop of the defendant at semi basement level as well as the open space which is a subject matter of the present suit.
23. Perusal of the impugned judgment shows that the facts and reliefs sought by the defendant in his earlier suit have been duly considered by Ld. Trial Court. It has been rightly held that the question directly and substantially in issue in all the three suits had already been decided in Suit no. 934/2010 filed by the plaintiff. Accordingly, now there was no question directly or substantially in issue in both the suits because of which the present suit was liable to be stayed under Section 10 CPC. I find no infirmity or illegality in the findings of Ld. Trial Court on this aspect. The decision on the issue is a detailed decision with reasons and no infirmity has been pointed out by ld. counsel for the appellant in the said decision. Ld. Trial Court has duly considered the pleadings, the matters in issue and the decisions already passed in the two prior suits when compared to the present suit. Accordingly, this issue has been rightly decided in favour of the plaintiff and against the defendant.
Issue no. 1 : Whether the plaintiff is entitled to a decree of permanent injunction, as prayed for in para 'A'? OPP
24. As regards findings on this issue, the appellant has challenged the said findings on the ground that the suit of the plaintiff for permanent injunction simplicitor was not maintainable without seeking RCA No. 26/2015 Nityanand Chaudhary v. Partibha Devi Page no. 9/ 11 the relief of possession as admittedly the defendant was in possession of the suit space. Similar arguments were also addressed by the appellant/defendant before Ld. Trial Court and the same has been duly dealt with in the impugned order. Ld. Trial Court has clearly distinguished between the occupation of the open space being with defendant as compared to the possession thereof. It has been rightly held that the extended user by the defendant over the open space without debarring the plaintiff to exercise his control and power over the suit property cannot be termed as dispossession of the plaintiff but a mere breach of the obligation on the part of the tenant i.e. the defendant herein against his landlord i.e. the plaintiff herein. Accordingly, the plaintiff does not have any alternative remedy of possession available to him. The defendant has failed to point out any infirmity in the said findings of Ld. Trial Court. The said issue has been rightly decided by Ld. Trial Court by reasoned order and no illegality is found therein.
25. Ld. Trial Court has also rightly decided the issue under consideration on merits by holding that the decision in CS No.934/2010 vide judgment dated 28.03.2013, having attained finality that the defendant herein was inducted as a tenant in shop no. 9 and was not offered this shop no. 9 in alternate to the shop of the basement, is binding on the parties. A natural corollary to the said finding is that the case of the defendant that he was permitted to display his goods on a cot in an open space shown in red colour in site plan is highly improbable. In these circumstances, the issue under consideration has been rightly decided in favour of the plaintiff and against the defendant.
RCA No. 26/2015 Nityanand Chaudhary v. Partibha Devi Page no. 10/ 11
26. In view of the reasons and findings given above, I find no merit in the present appeal. The same is accordingly dismissed. The decision of the Ld. Trial Court is upheld as the same is based upon the material available on record.
27. The appeal file after due compliance be consigned to the Record Room. Trial Court Record be sent back along with a copy of the judgment. Decree sheet be prepared accordingly.
Announced in the Open Court on 30.01.2016 (Shivali Sharma) Additional Senior Civil Judge Central District: Tis Hazari Courts: Delhi RCA No. 26/2015 Nityanand Chaudhary v. Partibha Devi Page no. 11/ 11