Delhi District Court
Smt. Savitri Devi vs Sh. Harish Kumar on 2 April, 2011
IN THE COURT OF SH. ANIL KUMAR SISODIA, SENIOR CIVIL
JUDGECUMRENT CONTROLLER (NORTH EAST DISTRICT) :
KARKARDOOMA COURTS: DELHI.
CIVIL SUIT NO. 714 OF 2006
(UNIQUE CASE I.D. NO.02402C0143182005)
SMT. SAVITRI DEVI
W/o Sh. A.C. Goyal
R/o 145, J & K Block,
Laxmi Nagar, Delhi110092. ............ PLAINTIFF
Versus
SH. HARISH KUMAR
S/o Sh. Durjan Singh
R/o Shop No.NU53A/2, Upadhyay Block,
Highway Road, Shakarpur, Delhi110092. ........... DEFENDANT
Date of institution : 02.09.1999
Order reserved on : 21.03.2011
Date of Decision : 02.04.2011
SUIT FOR PERMANENT INJUNCTION
J U D G M E N T :
1. The plaintiff has filed the present suit for permanent injunction Suit No.714/06 Page 1/13 against the defendant and for restraining the defendant from breaking the roof of the shop and then raising the wall of the shop and further from installing the shutter in front of the open verandah in shop no.2 of the premises or from making any additions, alterations or structural changes in the said shop.
2. The facts of the case are that the plaintiff is the owner/landlord of H.No.U53A, Upadhyay Block, Highway Road, Shakarpur, Delhi92 and the defendant is the tenant in respect of one shop bearing no.2 (8'6" x 10" and height of 9 feet) as shown in red colour in the site plan at a monthly rent of Rs.300/ excluding electricity charges w.e.f. 1.5.1980. The defendant is habitual defaulter in paying the rent and he is in arrears of rent w.e.f. 01.11.1998 till date. The defendant has also not paid the electricity charges since last more than 10 years. The defendant is using the electricity connection from the meter installed in the suit property but has failed to pay the electricity bills. Officers of the DVB disconnected the electricity connection about one year back for non payment of electricity bills. On 1.9.1999, the plaintiff went to the shop of the defendant and requested him to pay the arrears of rent and electricity bills but Suit No.714/06 Page 2/13 he refused to pay the same threatening the plaintiff that he will remove the roof of his shop under his tenancy and will also affix a separate shutter covering the open verandah and also raise the wall upto the height of 11.5 feet which is upto the fresh lental laid down by the plaintiff for construction of first floor. Finding no other alternative, the plaintiff has filed the present suit.
3. Summons of the suit were served on the defendant. The defendant has contested the suit by filing the written statement raising preliminary objections that the suit of the plaintiff is false, bogus and without any basis. The plaintiff has not come to the court with clean hands and has suppressed the real facts; plaintiff wants declaration in the garb of injunction for the illegal acts committed by her since she has raised unauthorised construction in the property.
On merits, defendant admitted that he is a tenant in the suit shop bearing no.2 @ Rs.300/ p.m. inclusive of electricity charges and stated that the rent has been paid upto 30.9.1999 and rent for the month of September 1999 has been sent through money order. It has also been denied that the rent is Suit No.714/06 Page 3/13 due from 1.11.1998 or that electricity charges are exclusive of the rent. It has been admitted that the electricity connection is lying disconnected. It was stated that the tenanted premises is shop no.2 in the property alongwith the roof rights but the plaintiff has raised unauthorised construction on the first floor by putting a lental 3 feet above the roof of the tenanted shop in order to grab the roof rights of the tenanted shop of the defendant. It has also been stated that the verandah in front of shop is also part of tenanted premises and the plaintiff has no right in the said verandah. Other contents of the plaint have been denied and a prayer has been made for dismissal of the suit with costs.
4. The plaintiff filed replication denying the contents of the WS in so far as they were contrary to the plaint. The contents of plaint were reiterated and reaffirmed.
5. The plaintiff also filed an application for interim injunction U/o 39 Rule 1 & 2 CPC and the said application was allowed vide order dated 26.8.2002 and the defendant was restrained from making any structural changes in the suit shop pending the disposal of the suit.
Suit No.714/06 Page 4/13
6. On 28.02.2003, Ld. Predecessor of this court framed the following issues :
1) Whether the suit of the plaintiff is not maintainable in the eyes of law? OPD
2) Whether the plaintiff is entitled to a decree of permanent injunction against the defendant as prayed for? OPP
3) Relief.
7. Thereafter the parties were directed to lead their evidence. In support of his case, the plaintiff has examined her husband Sh. A.C. Goyal as PW1 who filed his examination in chief by way of affidavit and proved on record the GPA in his favour as Ex.PW1/1; site plan of the suit shop as Ex.PW1/2; rent agreement as Ex.PW1/3; certified copy of the order of Ld. ARC as Ex.PW1/4; certified copy dated 13.1.1988 as Ex.PW 1/5; certified copy of judgment dated 13.1.1988 as Ex.PW1/6 and original counter foil of the rent receipt duly signed by the defendant dated 27.03.1996; 12.9.1996, 1.2.1997 and 31.8.1997 as Ex.PW1/7 to Ex.PW1/10. PW1 also reiterated the facts stated in the plaint. In his cross examination, PW1 admitted that initially the rent was Rs.200/ p.m. and thereafter, it was Suit No.714/06 Page 5/13 increased to Rs.300/ p.m. and further stated that present rate of rent was Rs.330/ p.m. excluding electricity charges. He denied the suggestion that there was no electricity in the premises in question or that electricity was installed in the year 198283. he also denied the suggestion that rent of Rs.330/ p.m. is inclusive of electricity charges. He also denied the suggestion that site plan was not correct as per site and admitted that adjoining shops to the tenanted shop have no verandah. He denied that Sh. Deen Dayal is not his tenant and also Indian Surgical were not his tenant. He also denied the suggestion that Deen Dayal, Kailash Chand and defendant were using the electric meter jointly and volunteered that only defendant was using the electricity meter. PW1 also denied the suggestion that he deliberately did not accept the rent to make them arrears so that defendant may leave the shop. He also denied the suggestion that he had not given notices from time to time for increase of rent; he also denied the suggestion that he had visited the shop of the defendant and threatened him and pressurized him to vacate the shop.
8. The plaintiff also examined PW2 Sh. Kailash Chand who has Suit No.714/06 Page 6/13 filed his examination in chief by way of affidavit Ex.D1. PW2 testified that he knew parties to the suit and defendant has taken the premises on rent @ Rs.200/ p.m. and electricity and other charges were payable separately w.e.f. 1.4.1980. Defendant executed a rent agreement in his presence and he has signed the same as marginal witness and he proved the rent agreement as Ex.PW1/3. He also testified that defendant is also using the electricity exclusively from the meter installed in the premises. In his cross examination, PW2 admitted that agreement Ex.PW1/3 was signed only by the defendant and it does not bear the signatures of the plaintiff. He also admitted that at the time of execution of agreement, the rate of rent was Rs.200/ p.m. but denied the suggestion that electricity was installed in the year 198283 and volunteered that it was installed in the year 1980. He also denied other suggestions that there was no electricity in the year 1980 or that he was also using the power from the same meter upto the year 198889. Thereafter, PE was closed.
9. Perusal of record shows that PE was closed by the plaintiff on 14.7.2004 and thereafter the matter was fixed for defendant's Suit No.714/06 Page 7/13 evidence but no evidence has been led by the defendant despite repeated opportunities being given to him and ultimately, DE was closed vide order dated 20.3.2008. defendant filed a review application against the said order which was also dismisssed vide order dated 12.8.2008. Thereafter, the defendant challenged the aforesaid orders in the appeal which was dismissed by the appellate court vide its order dated 10.11.2010. The defendant also filed a review application against the said order dated 10.11.2010 and the said review application was also dismissed by Ld. Appellate Court.
10.The defendant was also given opportunities for addressing the final arguments on 11.1.2011, 7.2.2011, 9.2.2011, 23.2.2011, 26.2.2011, 10.3.2011, 14.3.2011, 15.3.2011 and ultimately 21.3.2011 but instead of addressing the arguments, defendant kept on filing frivolous and vexatious applications one after the other which were dismissed. On 21.3.2011, defendant was again asked to address the arguments but he straightaway declined to address the arguments, and hence, in these circumstances, opportunity for addressing the arguments was closed. Perusal of record also shows that defendant has left no Suit No.714/06 Page 8/13 opportunity and used all the dilatory tactics to prolong the disposal of the suit.
11. Today again, when the case was reserved for orders, defendant filed application for stay of the proceedings and a counter claim which have been dismissed vide separate order.
12.I have heard Ld. Counsel for the plaintiff and have perused the record carefully. My findings on the issues are as under : ISSUE NO.1 :
13.The onus of proving this issue was on the defendant. In the WS, defendant has taken the stand that the suit is not maintainable and the plaintiff is trying to seek the relief of declaration in the garb of injunction but defendant has nowhere explained as to how and what declaration plaintiff is seeking under the garb of the present suit. The plaintiff has approached the court for restraining the defendant from breaking the roof of the suit shop and extending the shutters covering the verandahs. Hence, the suit for injunction filed by the plaintiff is maintainable in the eyes of law as there is no other efficacious remedy available with the plaintiff for preventing the mischief of the defendant. Accordingly, the suit filed by the plaintiff is Suit No.714/06 Page 9/13 maintainable. The issue is decided in favour of the plaintiff and against the defendant.
ISSUE NO.2 :
14.The onus of proving this issue was on the plaintiff. The plaintiff has examined her husband and attorney PW1 A.C. Goyal who has filed his examination in chief by way of affidavit and has categorically stated in his affidavit that plaintiff has constructed the first floor over the entire property including the shop of the defendant and laid down lental at a height of 11'5" from the ground without touching the tenanted shop and there is a gap of 2'5" between the roof of suit shop and the first floor. The defendant is now adamant to break the roof of the suit shop and thus increase the height of the suit shop. PW1 has also categorically deposed that defendant is also threatening the plaintiff to affix fresh shutter covering the open verandah in front of the suit shop. This testimony of PW 1 has not been challenged by the defendant in the cross examination. No suggestion has also been given to the witness that defendant did not give any such threat or did not intend to break the roof or affix fresh shutter covering the open verandah Suit No.714/06 Page 10/13 in front of the suit shop. Thus, the testimony of PW1 on this aspect has remained unrebutted and unchallenged and I have no reason to disbelieve the plaintiff. In Traders Syndicate Vs. Union of India AIR 1983 Calcutta 337, it was held that where no crossexamination is preferred by the defendant on the point deposed in examination in chief, Court can hold that defendant accepts plaintiff's case on the point in entirety and no dispute on the point can be raised in the arguments.
15.It is an admitted fact that the defendant is a tenant in the suit shop and he cannot be permitted to cause any structural changes in the suit shop or to encroach upon the open verandah which does not form part of the suit shop. The defence taken by the defendant, that the tenancy of the shop included the roof rights or that verandah forms part of the tenanted premises, has not been proved by the defendant as he failed to lead any evidence in support of his averments. The plaintiff has also proved the agreement Ex.PW1/3 and the defendant has not disputed his signatures on this agreement. Only suggestion given to PW2 is that it does not bear the signatures of the plaintiff. Perusal of this agreement also shows that the Suit No.714/06 Page 11/13 defendant is only a tenant in respect of the shop. The agreement does not state that verandah in front of the shop is a part of the tenanted premises or that the shop was given with roof rights. Hence, the defendant cannot be permitted to encroach upon the portion beyond his tenanted premises.
16.Thus, in view of the aforesaid discussion, I am of the considered opinion that the plaintiff has discharged the onus cast on him. The issue is accordingly decided in favour of the plaintiff and against the defendant.
ISSUE NO.3 (RELIEF) :
17. In view of my findings on the aforesaid issues, I am of the considered opinion that the plaintiff has proved her case by preponderance of probabilities. Accordingly, a decree of permanent injunction is passed in favour of the plaintiff and against the defendant and the defendant is perpetually restrained from breaking the roof of the shop and then raising the wall of the shop from the height of 9' and upto to height of 11'5". Defendant is further restrained from installing the shutter in front of the open verandah in shop no.2 of the premises and from making any additions, alterations or Suit No.714/06 Page 12/13 structural changes in the suit shop as shown in red colour in the site plan Ex.PW1/2. No orders as to cost. Decree sheet be prepared accordingly.
File be consigned to record room.
Announced in the open Court Dated : 2nd April, 2011 (ANIL KUMAR SISODIA)
Senior Civil JudgeCumRent Controller (NE) Karkardooma Courts, Delhi.
Suit No.714/06 Page 13/13 Suit No.714/06 02.15 P.M. Present: Defendant in person.
Two applications have been filed by the defendant one for stay of the proceedings and the second in the form of counter claim.
The application for stay of the proceedings has been filed on the ground that his application for transfer is pending in the Hon'ble High Court and his appeal against the order passed on the application u/O 7 Rule 11 CPC is pending in the Court of Ld. District JudgeVII. On enquiry, he has admitted that neither the Hon'ble High Court nor the court of Ld. District JudgeVII has stayed the proceedings of this Court. It is well settled principle of law that mere filing of appeal or revision is no ground for stay of the proceedings by the trial court. Order 41 Rule 5 CPC provides that an appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order in this regard. I also do not deem it appropriate to stay the proceedings in view of the fact that neither appellate court nor Hon'ble High Court of Delhi has deemed it appropriate to stay the proceedings. Accordingly, the Suit No.714/06 Page 14/13 application stands dismissed.
The second application is in the form of counter claim filed by the defendant. The suit is reserved for judgement today and no proceedings are pending before this Court. Hence, the counter claim at this highly belated stage is not maintainable and it only appears to be a ploy on the part of the defendant to delay the proceedings. Accordingly, the counter claim stands dismissed.
Be put up for orders at 04.00 P.M. SCJcumRC (NE) KKD Courts/Delhi/02.04.2011 4.00 PM :
Present : Husband of the plaintiff.
Vide separate judgment announced in open court today, the suit of the plaintiff is decreed. No orders as to cost. Decree sheet be prepared accordingly.
File be consigned to record room.
SCJCUMRC (NE) KKD. COURTS/DELHI/2.4.2011.
Suit No.714/06 Page 15/13