Delhi District Court
Smt. Veena Devi vs Sh. Praveen Kumar Gupta on 6 May, 2019
IN THE COURT OF SHRI MANOJ KUMAR: ADDITIONAL
DISTRICT JUDGE8 (CENTRAL), TIS HAZARI, DELHI
Civil Appeal No.182/2018
Unique ID No.: DLCT010154972018
In the matter of:
1. Smt. Veena Devi,
W/o Late Shankar Lal,
R/o 255, Ghee Mandi, Pahar Ganj,
New Delhi.
2. Smt. Sunita,
W/o Sh. Rajesh,
R/o 255, Ghee Mandi, Pahar Ganj,
New Delhi. ..........Appellants
VERSUS
1. Sh. Praveen Kumar Gupta,
Prop. of Varliety Caterers,
S/o Late Shankar Lal,
R/o D29, Dayanand Block,
Shakarpur, Delhi110092.
Behind Reliance Fresh.
2. Sh. Jitender Kumar Gupta,
(Since Deceased)
RCA No. 182/2018 Page no. 1 of 15
Now Representated Through
His LRs
A. Smt. Mamta Gupta,
W/o Sh. Jitender Kumar Gupta.
B. Ms. Anmol Gupta,
D/o Sh. Jitender Kumar Gupta.
C. Sh. Aditya Gupta,
S/o Sh. Jitender Kumar Gupta.
D. Ms. Sandali Gupta,
Through her mother/natural guardian,
D/o Sh. Jitender Kumar Gupta.
All R/o D27, Dayanand Block,
2nd Floor, Delhi110092.
3. Sh. Harish Gupta,
S/o Late Shankar Lal,
R/o G207, Gazipur Village,
Delhi110096. ...........Respondents
Date of institution : 17.11.2018.
Date of reserving judgment : 30.4.2019.
Date of pronouncement : 06.5.2019.
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For Appellants : Mr. Aditya Kala, Advocate.
For Respondents no.1 and 2 : Mr. Bharat Deepak, Advocate.
For Respondent no.3 : Mr. Deepak Jain, Advocate.
JUDGMENT :
This appeal under section 96 of the Code of Civil Procedure, 1908 (CPC) is directed against the judgment and decree dated 24.9.2018 passed by the Court of Civil Judge03, West, Tis Hazari Courts, Delhi in suit no. 607578/2016, whereby the suit for permanent injunction instituted by respondents Praveen Kumar Gupta, Jitender Kumar Gupta (since deceased) and Harish Gupta against Shankar Lal and Veena Devi was dismissed..
2. Lower court record has been called.
3. Brief facts for the decision in the appeal, as per the record of suit no. 607578/2016 are that respondents Praveen Kumar Gupta, Jitender Kumar Gupta (since deceased) and Harish Gupta (hereinafter referred to as "the plaintiff") instituted a suit for permanent injunction against their parents against Shankar Lal and Veena Devi (hereinafter referred to as "the defendants") stating that plaintiff no. 1 Praveen Kumar Gupta, at the time of the institution of the suit, was carrying on his business of catering under the name and style of M/s. Variety Caterers from shop no. 5308, Shora Kothi, Pahar Ganj, New Delhi (hereinafter referred to as "the suit property") for last about twelve RCA No. 182/2018 Page no. 3 of 15 years and his goods, articles and other catering material including gas cylinders etc. were lying in the suit property, which was connected with the adjoining shop no. 5307; that the plaintiff no. 1 was having one kitchen at mezzanine floor, where the food was prepared and supplied or taken to the site, where the catering was provided by him; that plaintiff no. 2 Jitender Kumar Gupta, at the time of the institution of the suit, was carrying on his business of tent/decorators and furniture under the name and style of M/s. J.K. Tent & Furnitures from the suit property for about twelve years and his goods, articles and other tent materials, bedding, utensils etc. were lying in the suit property, which was connected with the adjoining shop no. 5307; that plaintiff no. 3 Harish Gupa, at the time of the institution of the suit, was carrying on his business of sweet meat and other articles under the name and style of M/s. Shankar Sweets from the suit property for last about five years and his goods, articles and other materials, utensils etc. were lying in the suit property, which was connected with the adjoining shop no. 5307; that in fact, the plaintiffs no. 1 and 3 used to carry on the business of sweet meat from the suit property for last about fifteen years, but since the year 2000 the plaintiff no. 3 was carrying on the said business individually; that in the year 2000, the plaintiff no. 3 got renovated the suit property with his own funds and money, and in the month of May, 2004 he had got replaced the compressor of the sweet counter with his own funds and money; that RCA No. 182/2018 Page no. 4 of 15 for last fifteen years, prior to the institution of the suit, the defendant no.1, the father of the plaintiffs, was mentally disturbed and had been suffering from mental infirmity and was under regular treatment from various hospitals; that because of his ailments, the defendant no.1 was unable to look after himself and as such he was to be served through the defendant no. 2, who was the legally wedded wife of the defendant no. 1; that the plaintiffs are in settled possession of the suit property and carrying on their respective business without any obstruction or disturbance of any kind, whatsoever; that the plaintiffs had been looking after and taking care of their parents, who had no source of income; that the defendant no. 2 was the owner of the suit property, but the defendant no. 1, being the husband of the defendant no. 2 and the father of the plaintiffs, many times visited the suit property; that on 21.8.2005, and again on 22.8.2005, the defendant no. 1 came to the suit property and started shouting and threatening the plaintiffs no. 1 and 3 to get out of the suit property; that the defendant no. 1 also started complaining about non payment of house expenses by the plaintiffs; that the plaintiffs had been maintaining the defendants and were making regular payments to them towards household expenses; that besides regular cash payment by the plaintiffs to the defendants, in the month of September, 2004, the plaintiff no. 3 paid a sum of Rs.1,00,000/ by cheque in favour of the defendant no. 1 and also also made payment for treatment of the defendant no. 1; that the plaintiffs RCA No. 182/2018 Page no. 5 of 15 had been taking care of the defendant no. 1 by taking him to various hospitals for his ailments; that for his mental disturbance, the defendant no. 1 was taken to Dr. Ram Manohar Lohia Hospital, New Delhi and also to VIMHANS; that for last about twothree years, the defendant no. 1 was suffering from heart ailments and for that the plaintiff had taken him to the Ganga Ram Hospital, Ram Manohar Lohia Hospiutal and Lok Nayak Jai Prakash Hospital. It is further averred in the plaint that since the defendants were threatening the plaintiffs to dispossess from the suit property, therefore, a cause of action arose in their favour leading upto the institution of the suit claiming a decree of permanent injunction to restrain the defendants, their attorneys etc. from dispossessing the plaintiffs from the suit in any manner whatsoever, or in any way creating any nuisance or hindrance in the peaceful use occupation and possession of the suit property, namely, shop no. 5308, Shora Kothi, Pahar Ganj, New Delhi.
4. The suit is contested by the defendants by way of a written statement of defence, wherein preliminary objections are taken to the effect that the suit is gross abuse of the process of law; that the plaintiffs have concealed material facts from the court and are not entitled to any relief; that neither of the plaintiffs were in possession of the suit property; that the suit is false, malicious and vexatious; that the allegations against the defendant no. 1 that he was mentally RCA No. 182/2018 Page no. 6 of 15 disturbed and suffering from mental infirmity are false, defamatory and derogatory; that the defendant no.1 had severed his relationship with all his three sons (the plaintiffs) and had disowned them by giving notice way back in January, 1994; that the suit is not maintainable in view of the fact that none of the plaintiffs were in possession of the property in question; that in fact on 15.8.2005 the suit property was leased to one Radhey Shyam, son of Nathi Lal and on coming to know of this fact all the three plaintiffs came to the house of the defendants on 21.8.2005 and fought with the defendants and the plaintiff's sister; that the plaintiffs also abused and threatened to eliminate the defendants and entered into fight with them and consequently PCR was called by dialing 100 and a complaint was made to the police authority; that a complaint under sections 107 and 150 of Cr.PC had been registered against the plaintiffs and the said facts have been concealed by the plaintiffs. In the reply on merits the allegations made by the plaintiffs against the defendants are disputed and denied and it is stated that the suit may be dismissed with costs.
5. The plaintiffs filed a replication to the written statement of the defendants whereby the defence taken by them is traversed and the averments made in the plaint are reiterated.
6. On 06.2.2006, on the pleadings of the parties following issues were framed, namely:
1. Whether the plaintiff is entitled for relief of permanent RCA No. 182/2018 Page no. 7 of 15 injunction, as prayed for? OPP.
2. Relief.
7. In support of their claim the plaintiffs got examined themselves as PW1, PW2 and PW3 respectively and during their respective examination in chief tendered their affidavits Ex.P1, Ex.PW2/A and Ex.PW3/A respectively. The plaintiffs also got examined PW4 Sikandar Singh, PW5 Ranveer Singh, Assistant Manager, Federal Bank, Connaught Circus, New Delhi and PW6 Rajeev Mohan, ScaleI Officer, Bank of Baroda, RML Hospital Branch, New Delhi. During the examination of the plaintiff's witnesses, documents Ex.PW1/1 to Ex.PW1/4, Ex.PW1/6, Ex.PW1/7, Ex.PW1/10 to Ex.PW1/17, Ex.PW2/1 to Ex. PW2/5, Ex.PW3/1 to Ex.PW3/10, Ex.PW4/A, Ex.PW5/1, Ex.PW5/2, Ex.PW6/1 and Ex.PW6/2 were also tendered in evidence. The witnesses produced on behalf of the plaintiffs were cross examined by counsel for the defendants.
8. In their defence, the defendants got examined DW1 Veena Devi, who during her examination in chief tendered her affidavit Ex.DW1/A. She did not subject herself to crossexamination by the plaintiffs.
9. During the pendency of the suit, the plaintiff no.2 and the defendant no.1 died, and their legal representatives (LRs) were brought on the record.
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10. After receiving evidence and hearing counsel for the parties, the learned Civil Judge by impugned judgment dated 24.9.2018, followed by the decree, dismissed the suit and the parties were left to bear their own costs. While dismissing the suit the learned Civil Judge found that from the admission of the plaintiff no. 2 it was proved that at the time of filing of the suit the plaintiffs were not in possession of the suit property. The learned Civil Judge also held that the plaintiffs being sons of the defendants and permissive users could not seek permanent injunction against the true owner of the suit property. The learned Civil Judge further held that the plaintiffs were using the suit property under the permission of the defendants and once the permission to use and occupy the suit property was revoked, they were bound to surrender the suit property to the defendants and they could not seek permanent injunction. Aggrieved by the said judgment the appellants have preferred the appeal.
11. I have heard counsel for the parties and have gone through the record of the lower court carefully.
12. Having drawn the attention of the court on the record of the lower court and the law laid down in Tanusree Basu v. Ishani Prasad Basu, (2008) 4 SCC 791 and Sushil Kumar Dey Biswas and another v. Anil Kumar Dey Biswas, 2015 (1) CLJ 882 SC it is submitted by counsel for the appellants that during the pendency of the suit the plaintiffs dispossessed the appellants from the suit RCA No. 182/2018 Page no. 9 of 15 property, therefore, they are entitled to possession of the suit property. It is further submitted by counsel for the appellants that from the very institution of the suit the plaintiffs were not in possession of the suit property, still they filed vexatious suit against the defendants, but the learned Civil Judge, while dismissing the suit neither order payment of costs under section 35A of CPC nor initiated proceedings under section 340 of the Code of Criminal Procedure, 1973 (Cr.P.C.) against them. It is further submitted by counsel for the appellants that since the learned Civil Judge has committed error, therefore, the decree be modified and it be directed that the appellants be put in possession of the suit property and compensatory costs be also ordered in favour of the appellants.
13. Per contra, it is submitted by counsel for respondents Praveen Kumar Gupta, Mamta Gupta, Anmol Gupta, Aditya Gupta and Sandali Gupta that the appeal is bad for non joinder of Sangeeta, one of the LRs of defendant no.1 Shankar Lal. It is further submitted by counsel for respondents Praveen Kumar Gupta, Mamta Gupta, Anmol Gupta, Aditya Gupta and Sandali Gupta that from the report of the local Commissioner, appointed after institution of the suit and duly considered while deciding the application for temporary injunction it has been established that at the time of the institution of the suit the plaintiffs were in actual possession of the suit property. It is further submitted by counsel for respondents Praveen Kumar Gupta, Mamta RCA No. 182/2018 Page no. 10 of 15 Gupta, Anmol Gupta, Aditya Gupta and Sandali Gupta that through out the pendency of the suit the plaintiffs have been in possession of the suit property, but the learned Civil Judge did not find them entitled for a decree of permanent injunction only on the basis of admission of the plaintiff no. 2, which is not binding on other plaintiffs. It is further submitted by counsel for respondents Praveen Kumar Gupta, Mamta Gupta, Anmol Gupta, Aditya Gupta and Sandali Gupta that the relief of possession cannot be granted in favour of the appellants as they never filed any counter claim and even otherwise the possession has not been obtained in violation of any injunction order etc.. It is further submitted by counsel for respondents Praveen Kumar Gupta, Mamta Gupta, Anmol Gupta, Aditya Gupta and Sandali Gupta that the appeal is misconceived and the same may be dismissed.
14. It is submitted by counsel for respondent Harish Gupta that the appellants have no right to seek possession by way of the present appeal and if they had any grievance they ought to have instituted a fresh suit as they have done in respect of the other property. It is further submitted by counsel for respondent Harish Gupta that the appeal may be dismissed.
15. I have given my thoughtful consideration to the submissions made on behalf of the parties.
16. In so far as preliminary objection taken on behalf of respondents Praveen Kumar Gupta, Mamta Gupta, Anmol Gupta, RCA No. 182/2018 Page no. 11 of 15 Aditya Gupta and Sandali Gupta is concerned, in view of the provisions of rule 4 of Order XLI of CPC, the appeal is maintainable even in the absence of Sangeeta, who was impleaded as one of the LRs of defendant Shankar in the suit and thus, the appeal is not bad for non joinder of necessary party.
17. First contention of counsel for the appellants is that the suit of the plaintiffs being frivolous and vexatious, the lower court, while dismissing the suit ought to have awarded compensatory costs under section 35A of CPC in favour of the appellants. It is further submitted by counsel for the appellants that this court should award compensatory costs in favour of the appellants. In the considered opinion of this court, in the face of the provisions of Order XLI rule 33 of CPC this argument cannot be accepted. Order XLI rule 33 of CPC, which defines powers of court of appeal, reads as follows:
33. Power of Court of Appeal ―The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in crosssuits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees:
Provided that the Appellate Court shall not make any order under section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.
18. In the light of the provisions of sections 35A and 104 of CPC, an order for compensation under section 35A of CPC is RCA No. 182/2018 Page no. 12 of 15 appealable under section 104 of CPC, but where the lower court has refused or omitted to award compensatory costs, the appellate court cannot, in view of the provisions of Order XLI rule 33 of CPC, award such costs.
19. Second contention of counsel for the appellants is that the lower court ought to have proceeded against the defendants under section 340 of Cr.P.C. This point was never raised before the lower court and therefore, cannot be raised before this court. Even otherwise, in the light of the provisions of section 341 of Cr.P.C. this objection cannot be taken in the present appeal under section 96 of CPC.
20. Third contention of counsel for the appellants is that the lower court erred in not passing directions against the plaintiffs to restore the possession of the suit property to the appellants, and in this regard reliance has placed on the above said two judgments of the Hon'ble Supreme Court. In Tanusree Basu's case (supra) in a partition suit the respondents, who were coowners and were admittedly in possession of the property in question, were dispossessed by the appellants in violation of injunction order. To maintain the status quo ante, on an application under section 151 of CPC made on behalf of the respondents, they were put into possession of the property in question by the court. On challenge of the order in appeal, the Hon'ble Supreme Court did not find any ground to interfere and dismissed the appeal.
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21. In Sushil Kumar Dey Biswas's case (supra) the respondentplaintiff instituted a suit for ejectment against the appellantdefendant, who was admittedly in possession of the property at the time of the institution of the suit but dispossessed during the pendency of the same. The Hon'ble Supreme Court in appeal found merit in the contention of the appellantdefendant and possession was restored.
22. In the present case the plaintiffs claim that they have been in possession of the suit property and have been carrying on their separate businesses from there. On the other hand the defence of the defendants is that at the time of the institution of the suit, and subsequently, the plaintiffs were not in possession of the suit property. As per the record of lower court, after institution of the suit, on 30.8.2005, to ascertain the factum of possession qua the suit property, a local Commission was appointed, who gave his report on 03.9.2005, and the said report was not objected to by the defendants. As per the said report, on enquiry by the Commissioner, it was found that the suit property was in possession of the defendant no.1, but due to his sickness the plaintiffs were looking after the business.
23. While arriving the conclusion that the plaintiffs were not in possession of the suit property, the learned Civil Judge, ignoring the testimonies of PW1 Praveen Kumar Gupta and PW3 Harish Gupta only considered the admission of the plaintiff no.2, without taking into RCA No. 182/2018 Page no. 14 of 15 account the fact as to what extent the said admission was binding on other plaintiffs, especially when the business of the plaintiffs was not joint. In the present case, unlike the facts of the two above mentioned cases decided by the Apex Court, the plaintiffs, in their pleadings, never admitted that the defendants were in possession of the suit property, and this contention of the plaintiffs is supported by the report of the local Commissioner. No order of temporary injunction or status quo has been proved to have been violated by them. The defendants did not lead any evidence to show that they being in possession of the suit property were forcefully dispossessed during the pendency of the suit. In fact the defendants did not lead any evidence, and DW1 Veena Devi did not appear in the witness box for her cross examination. Therefore, the law cited on behalf of the appellants is not applicable in the facts of the present case. In these circumstances the contention of counsel for the appellants that the appellants are entitled to possession is without force and rejected.
24. In view of above discussion, the appeal is without merit and the same is dismissed with costs. Decree sheet be prepared accordingly and file be sent to records. Lower court record be sent back along with a copy of this judgment.
Pronounced in the open court (Manoj Kumar) on 06th of May, 2019. Additional District Judge8 Central:Tis Hazari Courts: Delhi.Digitally signed by MANOJ
MANOJ KUMAR KUMAR Date: 2019.05.06 16:56:53 +0530 RCA No. 182/2018 Page no. 15 of 15