Delhi District Court
Smt. Tara Devi vs Sh. Prahlad Rai on 2 May, 2016
IN THE COURT OF MS. NEHA, CIVIL JUDGE09,
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
Suit No : 570/06
Smt. Tara Devi
W/o Late Sh. Jangi Ram
R/o O40, Chander Shekhar Azad Colony
Bagh Kare Khan,
Delhi. ... Plaintiff / Counter claimant.
Versus
Sh. Prahlad Rai
S/o Sh. Naru Mal,
R/o EU4B, Uttari Pitampura,
Delhi. .... Defendant / Respondent.
COUNTER CLAIM FOR MANDATORY INJUNCTION AND
MESNE PROFITS
Date of Institution : 17.08.1992
Date of reserving Judgment : 12.04.2016
Date of pronouncement : 02.05.2016
JUDGMENT
1. Vide this Judgment, I shall dispose of the counter claim of the plaintiff / counter claimant seeking a decree of mandatory injunction and mesne profits. Initially, defendant/respondent herein filed a suit for Suit No. 570/16 Tara Devi Vs. Prahlad Rai. Page 1 of 28 permanent injunction against the counterclaimant seeking relief that the counter claimant, her representatives, agents etc. be restrained permanently from dispossessing the plaintiff forcibly and without due process of law from the three sets in property no. 5329, ground floor, Gali Petiwali, Ghas Mandi, Sadar Bazar, Delhi. Counterclaimant filed a written statement cum counterclaim to the said suit thereby seeking mandatory injunction that the defendant/respondent be directed not to come over the shop no. 5329, Ghas Mandi, Gali Petiwali, Gandhi Market, Sadar Bazar, Delhi. Thereafter on 02/07/2005, the defendant/respondent herein withdrew his suit for permanent injunction. However, the counterclaimant continued with the counterclaim and the matter was fixed for counter claimant evidence in respect of issues qua counter claim. The counterclaimant started leading her evidence. Subsequently, the counterclaimant filed an application for amendment for counterclaim on 24/01/2012, seeking amendment of the prayer.
2. In the amended counter claim, the counter claimant sought following reliefs : Decree of recovery of possession of the six wooden boxes and the Thada as shown in red colour in the site plan located in the shop no. 5329, Gali Petiwali, Ghas Mandi, Sadar Bazar, Delhi be passed in favour of the plaintiff / counter claimant and against the defendant.
Decree may also be passed in favour of the plaintiff / counter claimant and against the defendant / respondent for recovery of mesne profits amounting to Rs. 1,00,500/ for the period w.e.f. 23/01/2009 to 23/07/2014 and future mesne profits @ Rs. 2000/ per month till the Suit No. 570/16 Tara Devi Vs. Prahlad Rai. Page 2 of 28 possession of six wooden boxes with Thada in suit are restored to the possession of the plaintiff / counter claimant, subject to decision of the quantum of amount of mesne profits that may be determined by this Hon'ble Court and in that event the amount of mesne profits with interest @ 18% per annum may be recovered from the defendant and the same may be paid to the plaintiff / counter claimant as provided under the law.
Mesne profits for future may be granted to the plaintiff / counter claimant against the defendant at the enhanced rate as computable as to the prevailing rate of charges prevailing in the market along with interest @ 18% per annum till the amount granted till date.
3. The said application was dismissed by this Court on 11/09/2013. The counter claimant filed petition before the Hon'ble High Court of Delhi against the said order which was allowed by Hon'ble High Court vide order dated 24/07/2014 with the following observations : "Though in my opinion, petitioner is well advised of not asking specifically for the relief of possession and seek only the relief which is claimed as mandatory injunction in view of the judgment of the Supreme Court in the case of Sant Lal Jain Vs. Avtar Singh (1985) 2 SCC 332, however, this aspect is to be looked into by the petitioner. At this stage, on the request of the counsel for the petitioner, in the amendment application the word 'possession' is deleted and substituted by the word 'mandatory injunction' and which prayer for mandatory injunction already exists in the present suit. As already stated vide Judgment of the Supreme court in the case of Sant Lal (supra) that a suit for mandatory injunction lies against a leave and license and hence the oral prayer of petitioner is accepted and petitioner will make and is entitled to make all requisite and consequential amendments to the counter claim."
4. Vide aforesaid order of Hon'ble High Court of Delhi, the counter claimant was also permitted to claim mesne profits for three years prior Suit No. 570/16 Tara Devi Vs. Prahlad Rai. Page 3 of 28 to the filing of application for amendment.
5. Brief facts as stated in the amended counterclaim are as follows: 5.1. The shop bearing municipal no. 5329, Gali Petiwali, Ghas Mandi, Sadar Bazar, Delhi 6 (ground floor) is under the tenancy of the counter claimant and 46 wooden boxes are standing on the left and right side of the walls of the aforesaid shop. The wooden boxes consists of two separate sets (lower and upper set) with separate locks and each set of wooden box is given on leave and license basis @ Rs. 10/ per day per set of box. The said wooden boxes are given to several traders on daily charges on leave and license who come from outside Delhi for the purpose of making purchases for their business. After purchasing their merchandise, they pack their goods and store in boxes. In the evening or on the following day, they leave the same by giving charges. Some of these wooden boxes were given to the defendant / respondent. The business run by the plaintiff / counter claimant in the said shop is known as "Jhangi Ki Sarai".
5.2. The defendant / respondent illegally occupied the set of six wooden boxes with thada in the year 1991 after the death of husband of the counter claimant and started claiming himself to be a tenant on monthly rent of Rs. 75/ per month and tried to convert the wooden boxes as marketing outlet by opening the business of sale of plastic goods which was ordered to be closed by the Court of Sh. S.M. Chopra, Addl. Senior SubJudge, Delhi vide order dated 09/10/1993 and vide order dated 24/03/1994 passed by Hon'ble Ms. Justice Usha Mehra of the Hon'ble High Court.
Suit No. 570/16 Tara Devi Vs. Prahlad Rai. Page 4 of 285.3. Another suit bearing no. 939/93 titled " Tara Devi Vs. Prehlad Rai" was filed by the counter claimant / plaintiff for the recovery of damages of the period w.e.f. 01/07/1992 to 30/06/1993 @ Rs. 1500/ per month in respect of six wooden boxes with Thada which was decreed by the Court of Sh. Gurvinder Pal Singh, Civil Judge vide Judgment and Decree dated 23/12/1999 by holding that the defendant / respondent was illegal occupant. The decree was affirmed by Sh. O.P. Gupta, Ld. A.D.J, Delhi in RCA no. 19/2011 vide Judgment dated 07/01/2004 and it was also upheld in RSA no. 66/2004 by Hon'ble Justice Mr. R.S. Sodhi vide order dated 29/11/2005. 5.4. The shop is in exclusive possession of the counter claimant / plaintiff under her lock and key. When the counter claimant / plaintiff asked the defendant / respondent to take away his goods lying in six wooden boxes, he declined to do the same. The license fee of daily charges was increased to Rs. 15/ per day per box w.e.f. 05/01/1995 and at present, the fee was Rs. 20/ per day per set of wooden box w.e.f. 01/01/2000. The defendant / respondent has not vacated and delivered the possession of the six wooden boxes and thada despite various demands and the defendant / respondent is liable to pay mesne profits for the period w.e.f. 01/07/1993 to till date and future mesne profits @ Rs. 2000/ per month. Therefore, the plaintiff / counter claimant has filed the present counter claim seeking following reliefs:
Decree of recovery of possession of the six wooden boxes and the Thada as shown in red colour in the site plan located in the shop no. 5329, Gali Petiwali, Ghas Mandi, Sadar Bazar, Delhi be Suit No. 570/16 Tara Devi Vs. Prahlad Rai. Page 5 of 28 passed in favour of the plaintiff / counter claimant and against the defendant.
Decree may also be passed in favour of the plaintiff / counter claimant and against the defendant / respondent for recovery of mesne profits amounting to Rs. 1,00,500/ for the period w.e.f. 23/01/2009 to 23/07/2014 and future mesne profits @ Rs. 2000/ per month till the possession of six wooden boxes with Thada in suit are restored to the possession of the plaintiff / counter claimant, subject to decision of the quantum of amount of mesne profits that may be determined by this Hon'ble Court and in that event the amount of mesne profits with interest @ 18% per annum may be recovered from the defendant and the same may be paid to the plaintiff / counter claimant as provided under the law.
Mesne profits for future may be granted to the plaintiff / counter claimant against the defendant at the enhanced rate as computable as to the prevailing rate of charges prevailing in the market along with interest @ 18% per annum till the amount granted till date.
6. The defendant / respondent has filed written statement to the amended counterclaim taking preliminary objections that the amended counter claim is beyond the permission granted by the Hon'ble High Court vide order dated 24/07/2014 and contrary to the averments made in the application under Order 6 Rule 17 CPC, hence liable to be rejected. There exists relationship of landlord and tenant between the defendant / respondent and Sh. Jhangi Ram, the deceased husband of the plaintiff / counter claimant. The counter claimant / plaintiff has failed to Suit No. 570/16 Tara Devi Vs. Prahlad Rai. Page 6 of 28 value the relief of possession on market value and has not paid proper Court fees. The counter claimant / plaintiff has not approached the Court with clean hands and has suppressed material facts from this Court and the counter claim is barred by limitation.
7. It is stated that the defendant / respondent does not know that shop bearing no. 5329 is under the tenancy of counter claimant / plaintiff as alleged. The plaintiff / counter claimant, after filing of the suit for permanent injunction by the defendant / respondent herein, has numbered the almirahs fitted in the property. The husband of the counter claimant was using the property bearing no. 5329 along with the room at roof of the property i.e. first floor for residential purpose. When he acquired the flat bearing no. O40, Chander Shekhar Azad Colony, Kishan Ganj, Delhi, he converted the property into a hall in about 1972 73 (like modern Palika Bazar / Malls/ shopping complex) and installed almirahs type shops (pucca and wooden) which was let out to different small traders namely Mohd. Umar, Narumal etc on the monthly rent at different rates and they were carrying out their respective trading business. Mr. Jangi Ram was irregular in coming to the property and he provided two set of keys of shutter of the property, one was with Pawan Kumar and other with Mohd. Umar for opening and closing the property in absence of Jangi Ram. Sh. Jangi Ram had not issued any rent receipts to them in order to avoid eviction therefrom by his landlord on ground of subletting.
8. It is also stated that the suit for partition was filed in 1991 before the Hon'ble High Court of Delhi as there was a dispute between the legal Suit No. 570/16 Tara Devi Vs. Prahlad Rai. Page 7 of 28 heirs / cosharers, and the tenants were made party and all the tenants including Mr. Jangi Ram were directed to deposit the rent in the Court. Sh. Jhangi Ram expired on 30/07/1991. The defendant / respondent filed a suit for permanent injunction against counterclaimant which was withdrawn on 02/07/2005. After receipt of summons, the counter claimant / plaintiff took the keys of the shutter on false pretext from Pawan Kumar and subsequently, she changed the locks of the shutter. The defendant / respondent and other tenants reported the matter to the police and subsequently, they filed a suit for permanent and mandatory injunction titled as Pawan Kumar & Ors. Vs. Tara Devi bearing suit no. 886/2006 which is pending before the Court of Sh. Sumedh Kumar Sethi.
9. It is stated that the defendant / respondent took three sets of wooden almirahs type shops with thada from Sh. Jangi Ram in the year 1977 @ Rs. 75/ per set under oral agreement which comes to Rs. 225/ per month and started trading of plastic goods therefrom. The defendant / respondent is in possession of many documents i.e. photographs, letters / post cards from his customers, letters / communications and deposit receipts for Janta Flat, driving license, passbook of State Bank of India and FIR no. 159/87 with PS Sadar Bazar to show that he is tenant in the boxes for last many years. Therefore, the counterclaimant is not entitled to reliefs claimed.
10. The counter claimant / plaintiff has filed the replication to the written statement of the defendant / respondent wherein she has reiterated the averments made in the counter claim.
Suit No. 570/16 Tara Devi Vs. Prahlad Rai. Page 8 of 2811. On the amended pleadings of the parties, following issues were framed by the then Ld. Predecessor of this Court on 08/04/2015 for consideration :
1. Whether the counter claimant has concealed the material facts from the Court ? If so, effect thereof. OPD.
2. Whether the defendant is a tenant in the suit property ? OPD.
3. Whether the suit has been valued correctly for the purpose of Court fees and jurisdiction ? OPP.
4. Whether the counter claim is barred by limitation ? OPD.
5. Whether the counter claimant is entitled to the decree of mandatory injunction as prayed for ? OPP.
6. Whether the counter claimant is entitled to the recovery of mesne profits ? If so, at what rate and for what period. OPP.
7. Whether the counter claimant is entitled to any interest on the mesne profits so claimed ? If so, at what rate and for what period. OPP.
8. Relief.
12. The counter claimant / plaintiff examined herself as CW1 and tendered her evidence by way of affidavit Ex. PA wherein she has Suit No. 570/16 Tara Devi Vs. Prahlad Rai. Page 9 of 28 reiterated the averments of the plaint. She relied upon the site plan filed along with the counter claim as Ex. P1. The counter claimant has also examined Mohd. Ismail as CW2.
13. The plaintiff / counter claimant did not examine any other witness and PE was closed vide order dated 10/12/2015. The defendant / respondent examined himself as DW1. DW1 has tendered his evidence by way of affidavit Ex. DW1/A, wherein he has reiterated the averments in the written statement. DW1 has also tendered additional affidavit in his evidence which is Ex. DW1/B. DW1 has relied upon the following documents :
i. Site plan as Ex. RW1/1.
ii. Photographs of almirah typed shops and displayed plastic goods as Ex. RW1/2 to Ex. RW1/6.
iii. Negatives of photographs as Ex. RW1/7 to Ex. RW1/11. iv. Two post cards / letters containing the name of the respondent or his trade name and address as 5329, Gali Peti Wali, Sadar Bazar as Ex. RW1/12 to Ex. RW1/13. v. True copy of letters, communications and deposit receipts of DDA as Ex. RW1/14 to Ex. RW1/19 (Ex. RW1/16 and Ex. PW1/18 are photocopies and marked as Mark A and Mark B and Ex. RW1/19 is not on record, hence not exhibited).
vi. A copy of FIR bearing no. 159/87 U/s 379 IPC as Ex.
RW1/20.
vii. Passbook of account of Janta Deposit in State Bank of Suit No. 570/16 Tara Devi Vs. Prahlad Rai. Page 10 of 28 India, Sadar Bazar Branch, Delhi as Ex. RW1/21. viii. A true copy of the complaint dated 13/08/1992 as Ex.
RW1/22 and its postal receipts and AD cards are Ex. RW1/23 (colly).
ix. True copy of statement of Smt. Tara Devi recorded by ASI Ram Khilari as Ex. RW1/24.
x. Copy of statement of Smt. Tara Devi recorded by ASI Vijay Kumar, PS Sadar Bazar on 17/09/1992 as Ex. RW1/25.
xi. Complaint lodged by respondent with the SHO PS Sadar Bazar on 04/02/1993 as Ex. RW1/26.
xii. Another complaint lodged by the respondent along with other occupants to the SHO, PS Sadar Bazar and received on 23/04/1993 as Ex. RW1/27.
xiii. Another complaint dated 23/07/1993 lodged by the brother of the respondent with the said SHO as Ex. RW1/28.
xiv. Other complaints dated 24/07/1993 and 26/07/1993 lodged by the respondent as Ex. RW1/29 and Ex. RW1/30.
xv. Copy of driving license as Ex. RW1/31 (OSR).
14. All the witnesses were cross examined by the respective counsels. Parties were then called upon to advance their final arguments in the matter.
15. I have heard the Ld. Counsels for the parties and have perused the Suit No. 570/16 Tara Devi Vs. Prahlad Rai. Page 11 of 28 case file. My issuewise findings are as follows :
16. ISSUE NO. 1 : Whether the counter claimant has concealed the material facts from the Court ? If so, effect thereof. OPD.
17. The onus to prove this issue was placed upon the defendant / respondent.
18. The defendant / respondent has taken preliminary objection that the plaintiff / counter claimant has not approached the Court with clean hands and has suppressed the material facts. However, it is not specifically stated as to what material fact has been concealed by the plaintiff / counter claimant. In the absence of any material produced by the defendant / respondent, this Court is of the opinion that no material fact has been suppressed or concealed by the counter claimant / plaintiff. Accordingly, this issue is decided in favour of the counter claimant / plaintiff and against the defendant / respondent.
19. ISSUE NO. 2 : Whether the defendant is a tenant in the suit property ? OPD.
20. The onus of proof of this issue has been placed upon the defendant / respondent. The defendant / respondent has contended that he is tenant in the boxes in the shop and he used to pay monthly rent to Sh. Jhangi Ram, husband of the counterclaimant / plaintiff. After his death, the counterclaimant / plaintiff changed lock on the property and threatened him to dispossess him. Ld. Counsel for the defendant / respondent has argued that from the material on record, it has been proved that the defendant / respondent was a tenant in six wooden boxes and not Suit No. 570/16 Tara Devi Vs. Prahlad Rai. Page 12 of 28 licensee.
21. Ld. Counsel for the plaintiff / counter claimant has argued that the defendant / respondent was a licensee in six boxes in the shop and he was not tenant as the husband of the counter claimant / plaintiff himself was a tenant in the shop. It is also argued that the defendant / respondent was given the boxes on leave and license by the husband of the counter claimant and after his death, the counterclaimant / plaintiff asked the defendant / respondent to vacate the boxes, but he had put his lock on the boxes and refused to vacate.
22. Ld. Counsel for the plaintiff / counter claimant has also argued that the issue of license was decided by the then Ld. Civil Judge vide judgment dated 23/12/1999 and the judgment would act as resjudicata.
23. On the other hand, Ld. Counsel for the respondent has argued that the Judgment passed by the then Ld. Civil Judge, Sh. Gurvinder Pal Singh cannot be act as resjudicata as the issue of tenancy was not directly and substantially in issue before the said Court.
24. I have considered the submissions and perused the material on record. I have also gone through the Judgment passed by the then Ld. Civil Judge, Sh. G.P. Singh, the copy of Judgment is exhibited as Ex. P
8.The then Ld. Civil Judge Sh. Gurvinder Pal Singh has determined the user and occupation charges for the period 01/07/1992 to 30/06/1993 in the suit between the parties herein. There was no issue of tenancy or license before the Ld. Civil Judge. The then Ld. Judge, though has observed that in the absence of evidence, the boxes can not be said to be premises as described under section 2 (ii) of DRC Act liable to be let out Suit No. 570/16 Tara Devi Vs. Prahlad Rai. Page 13 of 28 as neither they in themselves can be construed any building or part of the building, which can be let separately. Ld. Judge had also observed, "Of the record, there is nothing to suggest if at all the said wooden structure are either affixed to the wall or to the floor nor it is otherwise."
25. The issue of tenancy and licensee was not directly and substantially in issue before the then Ld. Civil Judge. The observation made by the then Ld. Civil Judge in the Judgment dated 23.12.1999 cannot act as resjudicata in the present case. Therefore, this Court proceeds to dispose off the present issue in view of the material on record.
26. In the present case, it is not in dispute that the defendant / respondent is in possession of six boxes (three sets of two boxes each) in the property bearing no. 5329, Gali Peti Wali, Ghas Mandi, Sadar Bazar, Delhi. It is also not in dispute that there is only one shutter on the gate of the shop and the lock has been put on the said shutter by the counter claimant and she opens the shutter everyday and locks the shutter everyday. Now, on the basis of material on record, the Court shall decide whether the defendant / respondent is tenant in the six boxes or licensee.
27. CW1 Tara Devi has deposed that she is the tenant in the property in question. The counter claimant has examined CW2 Mohd. Ismail to prove that she is a tenant in the property. CW2 produced authority letter Ex. CW2/B dated 01.01.1980 to show that he has been authorized by the owner of the property to receive rent from the counter claimant and her husband. However, CW2 during crossexamination has stated Suit No. 570/16 Tara Devi Vs. Prahlad Rai. Page 14 of 28 that in deposition in other case titled as 'Tara Devi vs. Kewal Krishan', he stated that he did not had any appointment letter regarding his appointment as rent collector. He has also stated that he issued receipt in the joint name of Jhangi Ram and Tara Devi upon being directed to do so by Mrs . Akbar Sultana. He has stated that he can not say whether the plaintiff / counter claimant has ever met Akbar sultana. The evidence of witness shows that he does not have knowledge about the case and he had come to depose at the instance of the counterclaimant. The testimony of CW2 does not inspire confidence.
28. DW1 Prahlad Rai has stated that he does not know that the owner of the shop is / ever was a Mohamedan. DW1 has also stated that he was not aware that in the remaining boxes, the plaintiff / counter claimant used to give on leave and license basis on daily charges to the traders who come for making purchases of goods in the market from outside. He has also stated that the municipal no. of his shop is 5330/3, Gali Peti Wali, First Floor, Sadar Bazar, Delhi and he is conducting business from the said shop since 1993.
29. It is interesting to note that suggestion has been given to CW1 Tara Devi that her husband himself was a tenant in the property and for this, he has not issued any rent receipt as directed by him. The suggestion given to the counterclaimant is an admission on the part of the defendant / respondent that the husband of the counter claimant was tenant in the shop.
30. The respondent has placed on record various communications and letters to show that he is in possession of the said boxes since 1977. The Suit No. 570/16 Tara Devi Vs. Prahlad Rai. Page 15 of 28 documents placed by respondent Prahlad Rai are postcards received at the address of the shop no. 5329, Gandhi Market, Sadar Bazar, copy of complaints lodged with various authorities against Tara Devi.
31. Ld. Counsel has argued that the statement made by the counter claimant / plaintiff to the police on 11/09/1992 and 17/09/1992 proves that the defendant / respondent was tenant in the property.
32. I have considered the contentions. The statement of the counter claimants are Ex.RW1/24 and Ex. RW1/25. Both statements are photocopy and the statements have been admittedly not recorded by the defendant / respondent. The document being photocopy has not been proved as per law of evidence and therefore the documents/statements are not reliable. However even if it is assumed for the sake of arguments that she made such a statement, it shows that she is a tenant in the property. The term 'tenant' used by the counterclaimant / plaintiff in the said statement does not make the relation between the parties as that of landlord and tenant and the relation between the parties is to be decided on the basis of terms of agreement and the right enjoyed by the tenant/licensee. The intention of the parties as regards the relation of tenant or licensee is to be gathered from the circumstances of the case and not from the terminology used by the parties.
33. Ld. counsel for the defendant / respondent has relied upon the judgment of Hon'ble Apex Court in the matter of A. Satyanarayn vs. M. Yadgiri 2002 X AD(SC) 126 and has contended that the boxes being affixed in the wall are premises and can be leased out.
34. I have considered the contentions of Ld. Counsel. The CW1 has Suit No. 570/16 Tara Devi Vs. Prahlad Rai. Page 16 of 28 stated that the boxes are fixed in the wall. The boxes fixed in the wall are partitioned in the centre (half) with wooden planks at some places and with cement slabs in some place (in some boxes).
35. The judgments A. Satyanarayn vs. M. Yadgiri 2002 X AD(SC) 126 can be distinguished from the facts of the case. In the said case, the wooden structure was in the nature of permanent structure standing on the land which had walls and roof made of wood. However, in the present case, the subject matter are six wooden boxes .i.e three wooden almirah partitioned in two boxes each.
36. Ld. Counsel for the defendant / respondent has argued that the shop has been let out and run for commercial purpose. Ld. Counsel has also argued that in the report of Local Commissioner, it has come that the plastic goods were kept in the boxes for sale. Ld. Counsel has taken example of shopping mall where there is only one main gate / shutter however, there are many shops let out to various traders for commercial purposes.
37. I have considered the contentions and gone through the report of Local Commissioner. The shopping Mall is an example which is frivolous and has no legal basis. Even in shopping malls, the shop are given on leave and license basis. It depends on facts of each and every case whether the shop has been given on rent or license. This argument has no legal basis. There is no straight jacket formula to presume that shop has been taken on rent only in shopping mall.
38. The Local Commissioner, in his report, has stated that the defendant Smt. Tara Devi along with her Advocate Sh. S.K. Bhalla was Suit No. 570/16 Tara Devi Vs. Prahlad Rai. Page 17 of 28 present. Sh. Neru Mal, the father of the plaintiff and Sh. Kailash, brother of the plaintiff were present but neither the plaintiff nor his counsel had appeared. It is stated in the report that in the front portion of the shop in question, some wooden almirahs / boxes were installed on both sides of walls of the shop. The brother of the plaintiff claimed wooden almirah no. 32, 33, 34, 35, 40 and 41. Certain plastic items have been shown in those boxes which the brother of the plaintiff claimed to be of plaintiff and also said that those items have been displayed for the purpose of sale. Just below the almirah no. 32, 33, 34 and 35, there was a little store which the brother of the plaintiff claimed to be that of the plaintiff. The brother of the plaintiff was sitting on the counter and the counter situates just outside the shop in question at the left hand side. The brother of the plaintiff also claimed the counter to be that of the plaintiff.
39. It is also stated in the report of the Local Commissioner that this counter has shortened the entry to the shop. The report of the Local Commissioner makes it clear that Prahlad Rai had put a counter outside the shop bearing no. 5329 and the counter shortened the entry to the shop. The counter has not been put inside the shop infront of the almirahs / boxes in possession of the defendant / respondent. Merely putting of the counter outside the shop at the entry of the shop does not prove that the boxes / almirahs were used by the defendant / respondent as separate shops. Had it been the case that the almirahs / boxes were used for trading purpose, the respondent must have put his counter inside the shop just outside the almirahs in his possession. Therefore, this Court is of the view that the material on record is not sufficient to Suit No. 570/16 Tara Devi Vs. Prahlad Rai. Page 18 of 28 prove on the balance of probability that the almirahs were used for trading purpose/ as distinct shop as alleged by the defendant / respondent.
40. Hon'ble Supreme Court in the matter of Qudrat Ullah v. Municipal Board, Bareilly, [1974] 2 S.C.R. 530 has observed that there is no simple litmus test to distinguish a lease as defined in Section 105, of Transfer of Property Act, from licence as defined in Section 52 of the Easements Act, but the character of the transaction turns on the operative intent of the parties. To put precisely if an interest in immovable property entitling the transferee to enjoyment was created, it was a lease; if permission to use land without exclusive possession was alone granted, a license was the legal result.
41. It is settled that whether a person is a tenant or licensee depends on the intention of the parties and not on the terminology used by the parties. Hon'ble Supreme Court of India in Associated Hotels Of India Ltd vs R. N. Kapoor 1959 AIR 1959 SC 1262 has discussed the difference between lease and license. It has been observed:
"There is a marked distinction between a lease and a licence. Section 105 of the Transfer of Property Act defines a lease of immovable property as a transfer of a right to enjoy such property made for a certain time in consideration for a price paid or promised. Under s. 108 of the said Act, the lessee is entitled to be put in possession of the property. A lease is there' fore a transfer of an interest in land. The interest, transferred is called the leasehold interest. The lessor parts Suit No. 570/16 Tara Devi Vs. Prahlad Rai. Page 19 of 28 with his right to enjoy the property during the term of the lease, and it follows from it that the lessee gets that right to the exclusion of the lessor. Whereas s. 52 of the Indian Easements Act defines a licence thus :
"Where one person grants to another, or to a definite number of other persons, a right to do or continue to do in or upon the immoveable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a licence."
"Under the aforesaid section, if a document gives only a right to use the property in a particular way or under certain terms while it remains in possession and control of the owner thereof, it will be a licence. The legal possession, therefore, continues to be with the owner of the property, but the licensee is permitted to make use of the premises for a particular purpose'. But for the permission, his occupation would be unlawful. It does not create in his favour any estate or interest in the property. There is, therefore, clear distinction between the two concepts. The dividing line is clear though sometimes it becomes very thin or even blurred. At one time it was thought that the test of exclusive possession was infalliable and if a person was given exclusive possession of a premises, it would conclusively establish that he was a lessee. But there was a change and the recent trend of judicial opinion is reflected in Errington v. Errington (1), wherein Lord Denning reviewing the case law on the subject summarizes the result of his discussion thus at p. 155:
"The result of all these cases is that, although a person who is let into Suit No. 570/16 Tara Devi Vs. Prahlad Rai. Page 20 of 28 exclusive possession is prima facie, to be considered to be tenant, nevertheless he will not be held to be so if the circumstances negative any intention to create a tenancy."
"The Court of Appeal again in Cobb v. Lane (2) considered the legal position and laid down that the intention of the parties was the real test for ascertaining the character of a document. At p. 1201, Somervell.. L. J., stated :
"................ the solution that would seem to have been found is, as one would expect, that it must depend on the intention of the parties."
Denning, L. J., said much to the same effect at p. 1202:
"The question in all these cases is one of intention: Did the circumstances and the conduct of the parties show that all that was intended was that the occupier should have a personal privilege with no interest in the land ?"
The following propositions may, therefore, be taken as well established: (1) To ascertain whether a document creates a licence or lease, the substance of the document must be preferred to the form ; (2) the real test is the intention of the partieswhether they intended to create a lease or a licence; (3) if the document creates an interest in the property, it is a lease; but, if it only permits another to make use of the property, of which the legal possession continues with the owner, it is a licence; and (4) if under the document a party gets exclusive possession of the property, prima facie, he is considered to be a tenant; but circumstances may be established which negative the intention to Suit No. 570/16 Tara Devi Vs. Prahlad Rai. Page 21 of 28 create a lease. (emphasis supplied)
42. In the present case, the counterclaimant is herself a tenant of the shop. She has the keys of the shutter and she opens and closes it. The defendant / respondent is permitted to use the boxes only for the limited period till the shop is kept open by the counterclaimant. If the counter claimant does not open the shutter of the shop on any particular day for any reason, the boxes can not be used by the defendant / respondent. Therefore, in the facts and circumstances of the case, this Court holds that the defendant was a mere licensee on the boxes and not tenant. Accordingly, this issue is decided against the defendant / respondent and in favour of the plaintiff / counter claimant.
43. ISSUE NO. 3 : Whether the suit has been valued correctly for the purpose of Court fees and jurisdiction ? OPP.
44. The onus to prove this issue was placed upon the plaintiff / counter claimant. Ld. Counsel for the plaintiff / counter claimant has argued that the suit has been properly valued for the purpose of court fees and jurisdiction. On the other hand, Ld. Counsel for the defendant / respondent has argued that plaintiff / counter claimant has not paid proper court fees and has not valued the suit properly.
45. I have considered the submissions and perused the record.
46. The Hon'ble High Court of Delhi vide order dated 24.07.2012 has allowed the application of counterclaimant for amendment of counter claim. Hon'ble Court has observed as under:
"Though in my opinion, petitioner is well advised of not asking specifically for the relief of possession and seek only the relief which is Suit No. 570/16 Tara Devi Vs. Prahlad Rai. Page 22 of 28 claimed as mandatory injunction in view of the judgment of the Supreme Court in the case of Sant Lal Jain Vs. Avtar Singh (1985) 2 SCC 332, however, this aspect is to be looked into by the petitioner. At this stage, on the request of the counsel for the petitioner, in the amendment application the word 'possession' is deleted and substituted by the word 'mandatory injunction' and which prayer for mandatory injunction already exists in the present suit. As already stated vide Judgment of the Supreme court in the case of Sant Lal (supra) that a suit for mandatory injunction lies against a leave and license and hence the oral prayer of petitioner is accepted and petitioner will make and is entitled to make all requisite and consequential amendments to the counter claim."
47. Hon'ble Court has also observed that, "In view of the aforesaid and considering the peculiar facts of this case, the impugned order dated 11/09/2013 dismissing the amendment application filed by the petitioner / counter claimant is set aside and the application for amendment is allowed with observation that the word 'possession' used in the application for amendment will be treated as the expression 'mandatory injunction' and the mesne profits which would be claimed will now be claimed for three years prior to the filing of the application of amendment. The petitioner can made all necessary amendments to the counter claim for such purpose."
48. The plaintiff / counter claimant has claimed for relief of mandatory injunction initially in the counter claim and after amendment, she has also prayed for relief of damages which has been permitted for a period of three years prior to the filing of application for amendment by the order of Hon'ble High Court. The counter claimant / plaintiff has affixed court fees of Rs. 13/ on the relief of mandatory injunction. The counter claimant has also prayed for Rs. 1,00,500/ as damages w.e.f.
Suit No. 570/16 Tara Devi Vs. Prahlad Rai. Page 23 of 2823/01/2009 to 23/07/2014. The counter claimant has also paid Court fees of Rs. 3320/ on the damages claimed. The counter claimant is liable to pay court fees on the future damages / mesne profits as per the judgment and decree.
49. The counter claimant has paid advalorem court fees on the relief of mandatory injunction and has paid proper Court fees on the amount of damages claimed as per rules. Therefore, this Court holds that the suit has been properly valued for the purpose of Court fees and jurisdiction. This issue is accordingly decided in favour of the plaintiff / counter claimant and against the defendant / respondent.
50. ISSUE NO. 4 : Whether the counter claim is barred by limitation ? OPD.
51. The onus to prove this issue was placed upon the defendant / respondent. The Hon'ble High Court vide order dated 24.07.2012 has allowed the plaintiff/counterclaimant to claim damages for a period of three years prior to filing of application seeking amendment of the counter claim and not prior to that, being barred by limitation.
52. The relief of mandatory injunction was already prayed in the initial counterclaim and by way of amendment, the counterclaimant has sought for mesne profits and future damages along with interest. In these circumstances, this Court holds that the counter claim is within the limitation and not barred by limitation. Accordingly, this issue is decided in favour of the counter claimant and against the respondent / defendant.
Suit No. 570/16 Tara Devi Vs. Prahlad Rai. Page 24 of 2853. ISSUE NO. 5 : Whether the counter claimant is entitled to the decree of mandatory injunction as prayed for ? OPP.
54. The onus to prove this issue was placed upon the plaintiff / counter claimant. It is settled that the suit for mandatory injunction lies against the licensee. This Court has already observed that the defendant / respondent was a licensee in the boxes. The counterclaimant has revoked the license and had asked the respondent / defendant to vacate the boxes. The respondent has failed to vacate the boxes despite demand by the counter claimant. The respondent / defendant has no right to occupy the boxes after the counter claimant had revoked the license. In these circumstances, this Court is of the opinion that the plaintiff / counter claimant is entitled to a decree of mandatory injunction thereby directing the defendant / respondent to vacate the boxes and thada and he shall not come to the boxes and thada. The issue is accordingly decided in favour of the plaintiff / counter claimant and against the defendant / respondent.
55. ISSUE NO. 6 : Whether the counter claim is entitled to the recovery of mesne profits ? If so, at what rate and for what period. OPP.
56. The onus to prove this issue was placed upon the plaintiff / counter claimant. The counter claimant has been permitted to claim mesne profits for three year prior to the filing of application for amendment. The application for amendment of the counter claim has been filed by the counter claimant on 24/01/2012. The counter claimant Suit No. 570/16 Tara Devi Vs. Prahlad Rai. Page 25 of 28 is entitled to claim mesne profits for the period starting from 24/01/2009 till the boxes are vacated by the defendant / respondent.
57. The counter claimant has produced the register of Jangi ki Sarai in which entries has been made of the customers who had taken the boxes on leave and license basis and the charges paid are also mentioned. The counter claimant / CW1, in her evidence by way of affidavit, has stated that the boxes were given on daily charges of Rs. 10/. This rate of charges continued till the end of year 1994. The rate of charges was increased to Rs. 15/ per day w.e.f. 05/01/1995 and at the rate of Rs. 20/ per day w.e.f. 01/01/2000. The counter claimant has not stated in the affidavit as to what is the present charges for each box in the shop. However, the counter claimant has claimed mesne profits @ Rs. 2000/ per month from 23/07/2014 till the possession.
58. The counter claimant, neither in her affidavit nor in the counter claim, has stated that as to what was the charges in the year 2009. However, it is stated in para no. 7 of the amended counter claim that at present, the license fee for each set of wooden box is Rs. 20/ per day per set of wooden boxes w.e.f. 01/01/2000. The defendant / respondent is admittedly in possession of three sets of boxes (total six box). The counter claimant accordingly is liable to pay a sum of Rs. 60/ per day for three sets of boxes.
59. In these circumstances, the counter claimant is entitled to mesne profits/damages of Rs. 60/ per day w.e.f. 24/01/2009 till the boxes and thada are vacated. The present issue is accordingly decided in favour of the plaintiff / counter claimant and against the defendant / respondent.
Suit No. 570/16 Tara Devi Vs. Prahlad Rai. Page 26 of 2860. ISSUE NO. 7 : Whether the counter claimant is entitled to any interest on the mesne profits so claimed ? If so, at what rate and for what period. OPP.
61. The onus to prove this issue was placed upon the plaintiff / counter claimant. The counter claimant has prayed for interest @ 18% per annum on the amount due. Admittedly, there was no agreed rate of interest between the parties to be payable on the amount due. The interest claimed by the counter claimant is exorbitant. The counter claimant is entitled to reasonable rate of interest. Accordingly, this Court holds that the counter claimant is entitled to the interest @ 6% per annum on the amount of mesne profits / damages for the period 24/01/2009 till 24/07/2014. This issue is accordingly decided in favour of the counter claimant / plaintiff and against the defendant / respondent.
62. RELIEF.
63. In view of my findings on issue no. 2 to 7, the counter claimant / plaintiff is held entitled to a decree of mandatory injunction against the defendant / respondent and the defendant / respondent is directed to leave the six boxes (three sets) and Thada of shop bearing no. 5329, Ghas Mandi, Gali Petiwali, Gandhi Market, Sadar Bazar, Delhi. The counter claimant / plaintiff is also held entitled to mesne profits / damages @ Rs. 60/ per day for all three sets of boxes and thada w.e.f. 24/01/2009 till the boxes are vacated. The counter claimant / plaintiff is also held entitled to the interest @ 6% per annum on the mesne profits/damages for the period 24/01/2009 till 24/07/2014. The plaintiff / Suit No. 570/16 Tara Devi Vs. Prahlad Rai. Page 27 of 28 counter claimant is also held entitled to the costs of the suit. Decree sheet be prepared after payment of deficient Court fees. The counter claimant is directed to deposit the deficient Court fees on the amount of mesne profits decreed within 3 weeks. File be consigned to record room after necessary compliance.
Pronounced in the open court (NEHA)
on 2nd May, 2016 Civil Judge09, Central
Tis Hazari Courts, Delhi
Suit No. 570/16 Tara Devi Vs. Prahlad Rai. Page 28 of 28