Delhi District Court
Smt. Rita Gupta vs Sh.Satish Aggarwal on 23 February, 2022
IN THE COURT OF SENIOR CIVIL JUDGE CUM RENT
CONTROLLER (WEST), TIS HAZARI COURTS, DELHI
Presided by : Ms. Susheel Bala Dagar
RCA SCJ No. 1/2022
CNR Number: DLWT030035402022
Smt. Rita Gupta
Proprietor of Monash
Unisex Saloon, At
A5/11, Paschim Vihar,
Opp. Sagar Ratna Restaurant,
New Delhi110063 ......Appellant
Versus
Sh.Satish Aggarwal,,
S/o Late Sh. Naurang Lal
R/o A5/11, Second Floor,
Paschim Vihar,Delhi63. ......Respondent
Date of Institution : 03.01.2022 Date on which judgment was reserved : 23.02.2022 Date of pronouncing judgment : 23.02.2022
An appeal under Section 96 read with Order 41 rule 1 CPC on behalf of the plaintiff/appellant against the order dated 16.11.2021 passed by Ld. Civil Judge, West, Tis Hazari Courts, Delhi in Suit No. 998/2020 titled as Rita Gupta v. Satish Aggarwal Judgment
1. The present appeal is being filed against the impugned order dated 16.11.2021 passed by the Ld. Civil Judge, West District, Tis Hazari Courts, Delhi in Suit No. 998/2020 titled as Rita Gupta v. Satish Aggarwal. As per the impugned order the suit of the appellant/plaintiff has been rejected under Order 7 Rule 11 (a) and (d) CPC. The plaintiff RCA SCJ 1/2022 Rita Gupta v.Satish Aggarwal Page No. 1 of 11 had filed her civil suit for permanent injunction on the basis of tenancy between the appellant/plaintiff and respondent/defendant. The respondent/defendant filed application under Order 7 Rule 11 CPC and thereafter plaintiff filed an application under Order VIII Rule 10 CPC for striking off the defence of the defendant/respondent. The respondent had filed his written statement along with application for condonation of delay under Section 5 of Limitation Act.
Brief facts of the case:
2. It is alleged by the plaintiff/appellant that she had been running a successful salon in the name of "Monash" at 67, 1st Floor, Harsh Vihar, New Delhi110034. The defendant was the friend of late fatherinlaw of the plaintiff/appellant as well as having cordial relations with her family.
In the year 2014, defendant/respondent approached the plaintiff/appellant and suggested her to open another branch of her salon at the ground floor of A5/11, Paschim Vihar, Delhi110063 for a minimum period of 10 years.
3. The above said proposal of the defendant/respondent appealed to the plaintiff/appellant and accordingly the plaintiff/appellant was inducted as tenant in the above said suit property in the month of December 2014 for ten years at the rent of Rs. 50,000/ per month which would be payable by the plaintiff/appellant on or before the 10 th of each calendar month with 10% enhancement after every three years excluding water and electricity charges. It was further decided between the parties that the plaintiff/appellant would pay a sum of Rs. 5,00,000/to the defendant/respondent at the time of vacating the suit property. RCA SCJ 1/2022 Rita Gupta v.Satish Aggarwal Page No. 2 of 11
4. It is further submitted that since 2014, plaintiff/appellant is in peaceful possession of the suit property and was paying rent regularly to the defendant/respondent without any default. The plaintiff/appellant on several occasions requested the defendant/respondent to execute a written rent agreement but the defendant/respondent always avoided the same on one pretext or the other. The defendant/respondent always took the rent in cash and never issued any receipts against the said cash payments and plaintiff/appellant also never objected the same having familiar relations with the defendant/respondent. On 07.10.2020 when the plaintiff/appellant went to pay the rent for the month of October to the defendant/respondent, he clearly refused to accept the same. The defendant/respondent further asked the plaintiff/appellant to evict the suit property by the end of October month as he wanted to let out the suit property to someone else.
5. On 09.10.2020 when the plaintiff/appellant was in her salon with her staff and daughters, defendant/respondent entered the salon and extended threats to the plaintiff/appellant for vacating the suit property or to face dire consequences. The defendant/respondent further warned the plaintiff/appellant that if she will not hand over the possession of the suit property peacefully, he will get the property evicted by forcible and illegal means. Being aggrieved by the conduct of the defendant/respondent, plaintiff/appellant filed this suit for injunction. During the pendency of the injunction suit, plaintiff/appellant got the knowledge about pendency of an execution proceeding bearing Ex No. 183/2020 titled as "Satish Aggarwal & Anr. Vs. Manoj Kumar & Anr". RCA SCJ 1/2022 Rita Gupta v.Satish Aggarwal Page No. 3 of 11 initiated by the defendant/respondent to get the possession of the suit property. She was not made party to the said suit.
6. Plaintiff/appellant filed objection to the said execution proceeding to protect her possession in the suit property on 26.11.2020. Being aggrieved by the order dated 16.11.2021, the present appeal is being filed.
Grounds of the Appeal:
7. Ld. Civil Judge has failed to appreciate the facts and circumstances of the present case, while holding that the cause of action of the plaintiff/appellant is vague and is not clear as to the relationship of the appellant/plaintiff and respondent/defendant. The appellant/plaintiff is in continuous possession of the suit property since 2014 and the supporting documents are already on record.
8. Ld. Civil Judge has not considered the written arguments filed by the plaintiff in support of her case. The two grounds on the basis of which the suit of the plaintiff for injunction was dismissed by the Ld. Trial Court are: firstly the execution proceedings with respect to the suit property is already pending in the Court of Ms. Harleen Singh wherein plaintiff/appellant has filed her objection to protect her possession over the suit property. Secondly, the cause of action of the plaintiff/appellant does not disclose clearly any relationship between the appellant and respondent. It is submitted that Ld. Civil Judge has erred in observing that there is no relationship between the appellant/plaintiff and respondent/defendant, while they share a relation of landlord and tenant RCA SCJ 1/2022 Rita Gupta v.Satish Aggarwal Page No. 4 of 11 and moreover, she is in a continuous possession of the suit property since the year 2014.
9. It is submitted that apart from the site plan which was issued to the appellant/plaintiff on 15.09.2014, there are plethora of documents which prove the tenancy of the appellant/plaintiff with the respondent/defendant since 2014. If there is no relationship of tenancy between the parties, then in what capacity the appellant/plaintiff is in possession of the suit property since 2014 and defendant has been taking continuous rent from her and the same is reflected in a video which is on the Ld. Trial Court record. The Ld. Civil Judge has failed to appreciate the fact that in the year 2014 an inauguration function was organized by the appellant/plaintiff in the suit property of the respondent/defendant wherein respondent/defendant was also one of the guests. Photographs of the inauguration function are already on record. The Ld. Judge has further erred in ignoring the video wherein the respondent/defendant was extending threats to the appellant/plaintiff and her daughters to vacate the suit property with illegal means.
10. It is submitted that till date there is no stay in the execution proceedings filed by the respondent/defendant to take the possession of the suit property. Moreover, it is the only suit which has been filed by the plaintiff to get a relief, as in the execution petition filed by the respondent/defendant she is just an objector. The objections which were filed by the appellant/plaintiff were part of pleadings in the case of the respondent/defendant. The suit which was dismissed by the Ld. Trial RCA SCJ 1/2022 Rita Gupta v.Satish Aggarwal Page No. 5 of 11 Court was the only independent suit of the appellant/plaintiff which is not barred by any law.
11. It is submitted that apart from the suit for injunction, there is no other remedy available to the appellant/plaintiff because appellant/plaintiff was never a party in the execution proceedings and the appellant/plaintiff has filed her objections only in the capacity of the objector. The decree in respect of which the execution proceedings were initiated by the defendant/respondent, is passed against the husband of the appellant/plaintiff who is having estranged relations with plaintiff/appellant and has been living separately at some other address but the plaintiff/appellant is in actual physical possession of the suit property since 2014. The issue of relationship of tenancy between appellant/plaintiff and respondent/defendant can be decided only by leading evidence.
Arguments by the Appellant/plaintiff :
12. Ld. Counsel for the appellant has argued that the appellant is the tenant as she is the proprietor of one Monash at the suit property and she is making payments of rent of Rs. 50,000/ per month to the respondent. Ld. Counsel for the appellants are relying upon the video clip which has shown in the Court on their laptop to submit that the payments are being accepted by the respondent. He submits that the lady who is making payments is the appellant in this case. Further, Ld. Counsel for the appellant submits that there is site plan of suit property which was provided by the respondent/defendant to the appellant/plaintiff which bears the date 15.09.2014. It is submitted that the said site plan was RCA SCJ 1/2022 Rita Gupta v.Satish Aggarwal Page No. 6 of 11 handed over for getting the interior done by the appellant/plaintiff. It is submitted that there are numerous documents which are in the name of Monash. It is submitted that appellant/plaintiff is in possession of the premises.
Arguments by the Respondent/defendant
13. Ld. Counsel for the respondent submits that the appellant/plaintiff is the wife of Sh. Manoj Kumar and premises was let out by way of registered lease deed to Sh. Manoj Kumar who has stated himself as the proprietor of M/s. Monash Men and Women Salon. It is submitted that the summons in the suit bearing no. 687/2016 filed by the respondent/defendant against the husband of the appellant namely Sh. Manoj Kumar were served by way of affixation on the suit property and the report of the same is already on record in the CS No 687/2016. The said address of the suit property is mentioned in all the suits. The home address of the appellant is also mentioned in CS No. 687/2016 where the service was also affected.
14. It is submitted that the lease deed with husband of appellant/plaintiff is registered as per Section 17(1)(b) of the Registration Act. The claim of payment of Rs. 50,000/ per month by the appellant is not maintainable without any proof of the name. As per Section 17(1) of the Registration Act, it is mandatory to get registered a document having a lease deed value of Rs. 100/ and more than 11 months. Thus, it is argued that oral claim of the appellant is not maintainable as per Section 49 of the Registration Act. There is no cause of action mentioned in the plaint. It is submitted that as per Section 41(h) of the Specific Relief Act, RCA SCJ 1/2022 Rita Gupta v.Satish Aggarwal Page No. 7 of 11 the appellant has already availed the equally efficacious remedy by filing objections in the execution petition pending before the Ld. ADJ Court. It is submitted that by way of clever drafting appellant is trying to create a cause of action where none exists. Ld. Counsel for the respondent has referred Section 91 and 92 of Indian Evidence Act to submit that when there is written document, it prevails over any other oral submissions. Rebuttal arguments by appellant/plaintiff
15. In rebuttal, Ld. Counsel for the appellant submits that the appellant has placed on record the copy of income tax returns for the assessment year 20142015 as well as ITR's for assessment year 201617 which shows that the appellant has filed ITR's as the proprietor of Monash Men and Women Salon and the address of the suit premises is mentioned on the same. Appellant has also placed on record the copy of the letter issued by Yes Bank and from Axis Bank to show that debit cards are being issued to the appellant/plaintiff on the said address. Court findings and observations Record perused.
16. Perusal of the record shows that the appellant/plaintiff is claiming herself to be the tenant whereas the respondent/defendant is claiming the husband of the appellant/plaintiff to be the tenant against whom he has filed a suit for possession and arrears of rent which has been decreed in favor of the respondent/defendant therein. It is also admitted case of both the parties that the appellant has already filed the objections in the execution petition filed by the respondent against the husband of the appellant which are pending adjudication before the Ld. ADJ Court. RCA SCJ 1/2022 Rita Gupta v.Satish Aggarwal Page No. 8 of 11 Hence, it is clear that the appellant has already availed the equally efficacious remedy by filing the objections which are pending adjudication before the Ld. ADJ Court. Thus I do not find any infirmity in the order of the Ld. Trial Court whereby the Ld. Trial Court has mentioned that equally efficacious remedy is available and has already been availed by the appellant/plaintif and so the suit is not maintainable being barred as per Section 41(h) of the Specific Relief Act. 17 Further, as regards the claim of the appellant that she is a tenant of the premises for a sum of Rs. 50,000/ per month, the same is not substantiated by any documentary proof. The appellant further submitted to have taken suit premises for a period of 10 years. However, any such tenancy, if any created though denied by respondent/defendant, would require compulsory regsitration under Section 17 r/w 49 Registration Act. The appellant has herself placed on record her ITR's for the year 201415 and 201617 however in the said ITR's also the appellant has nowhere shown herself to be making payments of any rent for the tenanted premises. Further, the question whether the husband of the appellant or the appellant herself is the tenant cannot be decided by way of filing a suit for permanent injunction for which the appellant should have sought declaration of tenancy rights in her favor which is not the case in the present matter. Hence, the Ld. Trial Court is correct in holding that it is not clear whether the plaintiff/appellant has any kind of relation with the defendant/respondent. Being in possession does not mean that the possession is as that of a tenant or that as wife of the tenant.
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18. Further, in the prayer clause the appellant/plaintiff has claimed as follows "the Hon'ble Court kindly be pleased to pass a decree for permanent injunction in favor of the plaintiff and against the defendant, thereby restraining the defendant, his agents servants, associates, legal heirs, family members and attorney etc. from dispossessing the plaintiff without due process of law from the suit property i.e. forming part of property No. A/511, Ground Floor, Opp. Sagar Ratna Restaurant, Paschim Vihar, Delhi." Thus from the above prayer it is clear that the appellant/plaintiff is claiming relief for herself as well as for her family members. Already a suit for possession filed by respondent/defendant has been decreed against the husband of the appellant/plaintiff. Hence, it seems that by way of the present suit, the appellant/plaintiff is trying to seek injunction against the decree already passed against the husband of the appellant/plaintiff.
19. Moreover, relief of injunction is an equitable and discretionary remedy. Proceedings for grant of injunction are always discretionary and a Court of law shall not grant perpetual injunction in favour of the plaintiff against the rightful owner. Further it has been held in the case of T. Arivandandam v. T. V. Satyapal & Another, 1977 AIR 2421 that if on a meaningful normal reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, the Court should exercise his power under Order VII Rule 11 CPC. And, if clever drafting has created the illusion of a cause of action, it should be nipped in the bud at the first hearing.
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20. In view of the above discussions and observations I do not find any infirmity in the order of the Ld. Trial Court. The order of Ld. Trial Court is upheld.
21. The appeal of the appellant/plaintiff stands dismissed. No order as to costs. Decree sheet be prepared accordingly. Copy of this order be sent to the Ld. Trial Court for information.
File be consigned to record room.
Announced in open Court (Susheel Bala Dagar)
on 23rd Day of February 2022 SCJ cum RC(West)
Tis Hazari Courts, Delhi.
(This judgment contains 11 pages.)
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