Delhi District Court
Suit No. 402/12 vs Raj Kumar on 26 February, 2013
CS No. 402/12
IN THE COURT OF SH. SUSHANT CHANGOTRA, CIVIL
JUDGE 6,
WEST DISTRICT, TIS HAZARI COURTS, DELHI.
Suit No. 402/12
Naresh Kumar
S/o Shri Tara Chand
Tenant of Shop No. 134/1,
Taimoor Nagar,
New Friends Colony,
New Delhi11001.
Resident of H. No. 3, Jungpura Road,
Bhogal, New Delhi110014.
.................. Plaintiff.
Versus
1. Raj Kumar
S/o Sh. Bhukkar (Late)
2. Sunil Kumar
S/o Sh. Raj Kumar
Both residents of H. No. 134/1,
Taimoor Nagar,
Near New Friends Colony,
New Delhi.
.......... Defendants
1
CS No. 402/12
Date of filing of Suit : 23.03.2007
Date of decision : 26.02.2013.
Suit for possession, permanent and mandatory injunction
JUDGMENT
1. The case of plaintiff in brief is that he is the lawful tenant of defendant. He was in physical possession of ground floor of one shop bearing no. 134/1, Taimoor Nagar, New Friends Colony, New Delhi. The plaintiff took the said shop on rent from defendant no.1 at a monthly rent of Rs.600/ per month vide rent agreement dated 26.06.1992. The plaintiff also paid a sum of Rs.22,500/ as "Pagree". The plaintiff has been paying rent regularly and he has paid the rent up to 24.09.2006 but defendant did not issue any rent receipt for the same. Thereafter, the defendant did not accept the rent inspite of repeated offers and requests of plaintiff.
2. The plaintiff has been running the business of sale of pork in the said shop. He was challaned by the weights and measurements department of Delhi firstly on 23.11.1998 and then on 06.02.2006. The defendants had been pressurizing the plaintiff to vacate the shop 2 CS No. 402/12 for last one year. They also stated that they will get the same re constructed through a builder. The plaintiff refused for the same.
3. On 24.09.2006 at about 7.00 am, the plaintiff along with his servant Raju reached the shop. He found that his lock on the door of the aforesaid shop had been broken. He also found that his weights, scale, cash box Rs.1,000/ lying in it had been stolen. At that time son of defendant no.1 namely Sunil and his wife were present there. The plaintiff enquired from them as to why they had broken the locks of the shop and they replied that they have taken the possession and will get the property demolished and reconstructed through a builder.
4. The plaintiff informed the police and dialed 100 number. The PCR van came to the spot. SI Heera Lal from PS New Friends Colony, New Delhi enquired into the matter and defendant no.1 begged pardon for his offenses. He assured that he will handover the possession of said shop to the plaintiff and will return the said stolen articles to the plaintiff. He sought two days time but till 26.09.2006 the defendant did not handover or restore the possession of said shop and also did not return the stolen articles and cash to the plaintiff. 3 CS No. 402/12 Then FIR bearing no. 573 dated 26.09.2006 U/ 448/380/34 IPC was registered against the defendants in PS New Friends Colony. The son of defendant no.1 namely Sunil Kumar was arrested but after two days he was released on bail from the Sessions Court, Patiala House, New Delhi. The defendant no.1 got anticipatory bail from the Hon'ble High Court.
5. Thereafter, the plaintiff requested the defendants to handover the physical possession of the said shop to the plaintiff but they went on avoiding it on one pretext or the other. On 19.03.2007, the plaintiff again approached the defendant for restoring the possession of the said shop to the plaintiff but the defendants refused and threatened to demolish the shop and also threatened that they will handover the possession of the said shop to third party. During the pendency of the suit, the defendants willfully and with ulterior motive demolished the roof, back wall and marble slab measuring about 3'.5"x 8'. It is now being used as a sham kitchen by the defendants and their family members.
6. Thus, the plaintiff prayed for decree of possession directing the defendants to restore/handover the vacant and peaceful 4 CS No. 402/12 possession of said shop bearing no. 134/1, Taimoor Nagar, New Friends Colony, New Delhi. He also prayed for permanent injunction restraining defendants from demolishing the said shop and from handing over the physical possession of the shop to third party. The plaintiff further prayed for decree of mandatory injunction directing defendants to restore the tenanted shop to its original condition by reconstructing the roof, back wall and marble slab measuring 3 feet 5 inches x 8 feet.
7. The defendants filed written statement and took several preliminary objections. They pleaded that there is no cause of action to file the present suit and as on date there is no shop in the premises in question. The present suit is bad as proper court fees has not been paid. The plaintiff has not come to the court with clean hands and has suppressed material facts from the court. The plaintiff has approached this court with unclean hands. The present suit is hit by delays and latches.
8. On merits, the defendants denied that plaintiff is lawful tenant and was in physical possession of a shop. They pleaded that plaintiff had vacated shop in premises and handover the peaceful 5 CS No. 402/12 possession to defendant. The plaintiff was apprehending that the property would be sealed and so decided to handover the possession of the premises to the defendants on the condition that he should be exempted from paying the arrears of rent. The handingover of the premises was carried out in the presence of large number of people of the locality. The defendants denied that defendant no.1 entered into an agreement dated 26.06.1992. They also denied having received "Pagree" money.
9. They pleaded that plaintiff was a chronic defaulter and had not paid the rent on regular basis. Rent of for more than 38 months was due to be paid when plaintiff vacated the premises of his own accord. They also pleaded that since the plaintiff vacated the tenanted premises, the question of acceptance of rent thereafter does not arise. They pleaded that plaintiff was running a slaughter house and was selling pork. Due to the directions of the Hon'ble Supreme Court action was initiated against illegal, unlicensed meet shops and the plaintiff was apprehending sealing and closure of the property. Then he decided to handover the property with a view to save the payment of arrears of rent.
6 CS No. 402/12
10. Thereafter the plaintiff had a change of heart and he tried to forcibly reenter in the shop. He could not succeed as son of defendant was present at the shop. The plaintiff in connivance with local police got a false case registered against the defendant and his son. The rent agreement was left blank by the plaintiff. The said shop is not in existence and is a part of residential premises of defendant's son. The defendant is using the premises for his own occupation. Thus, the defendant prayed that suit be dismissed.
11. The plaintiff had filed the replication to the original written statement filed by defendants. In the replication, the plaintiff denied the facts of written statement which were in contradiction to the contents of plaint. The facts as mentioned in the plaint were reiterated. From the pleadings following issues were framed:
(i) whether the suit is filed without any cause of action?OPD.
(ii) whether plaintiff has not come to the court with clean hands and has suppressed material facts?OPD.
(iii) whether plaintiff is entitled to decree of possession against the defendants as prayed for?OPP.
(iv) Whether the plaintiff is entitled to decree of permanent 7 CS No. 402/12 injunction against the defendants as prayed for?OPP.
(v) Whether the plaintiff is entitled to relief of mandatory injunction as prayed for?OPP.
(vi) relief.
12. The plaintiff appeared as PW1. He tendered his affidavit Ex. P1. He also tendered documents Ex. PW1/A to Ex. PW1/C and Ex. PW1/E to Ex. PW1/J. Then plaintiff closed PE in affirmative on 31.01.2012.
13. The defendants on the other hand examined seven witnesses. Defendant no1 appeared as DW1 and tendered his affidavit Ex. DW1/1. Then defendant no. 1 examined his son DW2 Sh. Sunil Kumar who tendered his affidavit Ex. DW2/A. Then defendant examined DW3 Sh. Raj Kumar, DW4 Sh. Vijay Kumar S/o Late Sh. Chander, DW5 Sh. Hari Chand, DW6 Sh. Kali Ram and DW7 Sh. Vijay Kumar S/o Sh. Bhule Ram. All the five witnesses tendered their affidavits and they also deposed the date written as 13.02.2006 in their affidavits is incorrect and actual date is 13.09.2009. Then defendants closed their DE on 19.12.2012.
14. I have heard the arguments of counsels for both the parties. 8 CS No. 402/12 The counsel for plaintiff argued that plaintiff has proved his case. He has proved the rent agreement Ex. PW1/B. The plaintiff filed the amended plaint and stated that defendant has broken the roof, back wall and a marble slab, but the defendant did not file any written statement to it, therefore, there is no rebuttal and the said fact is deemed to have been admitted. She further argued that the plaintiff has pleaded that he was dispossessed on 24.09.2006 but the defendants have not mentioned the date on which he allegedly left the possession. The plaintiff has not been crossexamined with respect to all the facts as stated in his affidavit. According to Section 138 of the Indian Evidence Act all these facts are deemed to be correct.
15. She argued that in his examination in chief DW1 stated that plaintiff was tenant till 13.09.2006 but in his crossexamination he stated that he remained tenant since 24.09.2006. He also admitted that Ex. PW1/5 were taken by the local commissioner. The site plan is not disputed.
16. The counsel for plaintiff argued that DW2 in his cross examination admitted the photographs Ex. PW1/J. He admitted that 9 CS No. 402/12 roof was broken by them. DW3 cannot be relied as he does not know whether the plaintiff was forcibly dispossessed on 24.09.2006. DW4 in his crossexamination stated that he came to know about the case from other persons. The property was vacated in their presence. He failed to disclose the means of transportation by which the plaintiff took away his goods. The relationship between the parties is not disputed. The document Ex. PW1/C, PW1/E, Ex. PW1/D, Ex. PW1/H shows the possession of plaintiff. The report of local commissioner Ex. PW1/A has not been objected to. According to local commissioner the defendants have set up a sham kitchen in the premises.
17. The counsel for defendants argued that the documents marked as Ex. PW1/D1 and other document placed on record pertaining to the same receipt shows that the plaintiff committed forgery. He had come to the court with unclean hands and as such he is not entitled to relief. According to Section 14 of the MCD Act, a license is required for running a butchery shop and the plaintiff did not have sale licence. Perusal of Ex. PW1/F shows that address mentioned in it is of Prem Nagar and it does not pertain to suit 10 CS No. 402/12 property.
18. He further argued that conduct of the plaintiff is against the normal course of conduct to be followed by persons who would have been dispossessed. No witness has been called to prove that a call was made at 100 number. The plaintiff did not examine SI Heera Lal and Raju. The suit has not been filed promptly. He further argued that plaintiff in his crossexamination admitted that shop was sealed for one day. There was no rebuttal of DW6. No witness from MCD has been examined to establish that the property was not sealed.
19. The counsel for defendants vehemently argued that DW4 in his crossexamination stated that he was on visiting terms with plaintiff. The local commissioner visited the spot on 09.07.2008 i.e. after filing of the suit, therefore he could not have deposed anything about the alleged dispossession. The defendant in his written statement filed before the visit of local commissioner had stated that the shop does not exist. The local commissioner exceeded his limits and stated that there was a sham kitchen. The defendants are hand to mouth people and they cannot be expected to have a better kitchen. Thus, plaintiff has failed to prove that he was forcible dispossessed. 11 CS No. 402/12 Hence, argued that suit be dismissed.
20. The counsel for plaintiff in rebuttal argued that no objection was raised for the exhibition of FIR. The plaintiff has also not been crossexamined to that extent. The defendant witnesses admitted that FIR was registered. It is proved that FIR was registered against the defendants. She further argued that evidence of plaintiff is sufficient to prove that he was forcibly dispossessed. There was no necessity for examining any other witness. She also argued that defendant stated that plaintiff was tenant till 24.09.2006, whereas, no other DW stated that plaintiff was tenant till 24.09.2006. The complaint was given from promptly on 24.09.2006 and FIR was registered on 26.09.2006. The date of complaint is written on the FIR itself. Therefore, the suit has been filed within limitation period and the plaintiff took all the possible steps whichever were required to be taken by any person in similar situation. Hence, counsel for plaintiff argued that suit may be decreed.
21. I have considered arguments of counsels for both the parties and gone through the evidence on record. My issuewise findings are given as below:
12 CS No. 402/12
ISSUE No.1
22. Onus to prove this issue was placed on the defendants. However, the burden to prove his case always rests on the plaintiff. In Addagada Raghavamma and Anr vs Addagada Chenchamma and Anr 1964 AIR 136, 1964 SCR (2) 933, the Hon'ble Apex Court has held that, "There is an essential distinction between burden of Proof and onus of proof, burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts." The burden to prove the case involves the burden to prove the cause of action for filing the suit.
23. The term cause of action has been defined in Rajasthan High Court Advocates Association Vs Union of India, AIR 2001 SC 416, The Hon'ble Apex Court held that, "the expression cause of action has acquired a judicially settled meaning. In the restricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense it means the necessary condition for the maintenance of the suit, including not only the infraction of right, but the 13 CS No. 402/12 infraction coupled with right itself. Every fact which is necessary to be proved, as distinguish for every peace of evidence which is necessary to prove each fact, comprises in cause of action". The plaintiff has filed the present suit alleging that he was dispossessed from the suit property without his consent. Admittedly the plaintiff was in possession of suit property as a tenant. Therefore, the plaintiff has prima facie shown the existence of cause of action as he alleged that his rights were infringed. Accordingly, this issue is decided against the defendant and in favour of plaintiff. ISSUE No.2
24. Onus to prove this issue was on the defendants. The counsel for defendants has argued that the plaintiff has forged the document Ex. PW1/D1. He has highlighted that in the receipt the property no. 134/1 has been added subsequently. He also pointed out to a copy of another receipt on record which has not been exhibited. It is a settled proposition of law that documents which have been proved and exhibited can be relied in evidence. The defendant has not proved the receipt with which Ex. PW1/D1 is sought to be 14 CS No. 402/12 compared. There is no testimony of any of the witnesses qua forgery of receipt Ex. PW1/D1. Therefore, the defendant has failed to establish forgery.
25. Even otherwise it is necessary to note that the aforesaid bill Ex. PW1/D1 pertains to 23.11.1998 during the period in which the plaintiff was admittedly in possession of suit property as a tenant. There was no necessity for the plaintiff to interpolate the documents to prove a fact regarding which there is no dispute. The defendants have also not examined any expert to prove that forgery has been committed by the plaintiff himself.
26. The allegation of the defendants qua coming to the court with unclean hands and suppression of material facts as mentioned in the written statement is on the basis that plaintiff himself vacated the premises. Hence, the arguments of the counsel for defendants qua this issue are beyond pleadings. Therefore, the defendants have failed to prove this issue. Accordingly, this issue is decided against the defendants and in favour of plaintiff.
ISSUE No. 3.
15 CS No. 402/12
27. Onus to prove this issue was on the plaintiff. The plaintiff is seeking the decree for possession u/s 6 of the Specific Relief Act. Section 6 of Specific Relief Act is reproduced below: Suit by person dispossessed of immovable property: (1) If any person is dispossessed without his consent of immovable property otherwise than in due court of law, he or any person claiming through him may, by suit, recover possession thereof notwithstanding any other title that may be set up in such suit.
1. No suit under this section shall be brought:
(a) after the expiry of six months from the date of dispossession; or
(b) against the Government;
28. The facts required to be determined for deciding this issue are whether the plaintiff was dispossessed from the suit property without his consent; otherwise than in due course of law and whether the plaintiff has filed the present suit within six months from the date of dispossession.
16 CS No. 402/12
29. It is an admitted fact that the plaintiff was inducted as a tenant in the suit property. In M.R.S. Ramakrishnan Vs. The Asstistant Director of ExServicemen Welfare (District Soldiers, Sailors and Airmen Board), Tiruchirapali & Ors. AIR 1984, Madras 1931, the Hon'ble High Court held that, "tenant in possession after termination of tenancy cannot be dispossessed without due authority of law and he cannot be dispossessed by force". Hence, the suit by a tenant U/s 6 of the act alleging to have been dispossessed is maintainable. Therefore, first of all the question that is required to be decided is whether the plaintiff was dispossessed without his consent and otherwise than in due course of law.
30. The plaintiff has alleged that on the morning of 24.09.2006 he went to the shop and found that his locks were broken. The plaintiff has deposed in examination in chief about entire incident in detail. He gave a detailed account of what happened on the morning of 24.09.2006 and the fact that he called the police. He also deposed that the defendants had been threatening him to vacate the shop for 17 CS No. 402/12 last one year. He further deposed that son of defendant admitted before the police that he will handover the possession within couple of days. He also deposed about registration of FIR. However, in his crossexamination neither any question was put to him nor any suggestion was given to him qua the incident as narrated by him which occurred on the morning 24.09.2006 or about registration of FIR or about admission of son of defendant as well as about threats of dispossession. In Traders Syndicate Vs. Union of India AIR 1983 Calcutta 337 it has been held that, " when no cross examination is preferred to the witness on the point of dispute as stated in examination in chief, then the court can hold that defendant accepted plaintiffs case on the point of entirety. No dispute can be raised in the arguments." The aforesaid proposition has been reiterated in M/S. Chunni Lal Dwarka Nath vs Hartford Fire Insurance Co Ltd AIR 1958 Punjab 440 wherein it has been held that, " a party should put to each of his opponents witnesses so much of his case as concerning that particular witness. If no such questions are put the courts presume 18 CS No. 402/12 that witnesses account has been accepted". Therefore, since the plaintiff has not been crossexamined qua the aforementioned facts, therefore they are are deemed to have been admitted. A sole suggestion to the plaintiff that he had vacated the premises by himself voluntarily does not overcome the lapse in putting of specific suggestion to the witness qua the aforesaid facts.
31. The case of parties stands only on the oral evidence. The testimony of plaintiff has not been impeached in crossexamination. It has been proved on record that FIR was registered on the basis of complaint. Defendants no.1 and 2 admitted that FIR was registered. The perusal of FIR Ex. PW1/G shows that complaint was made on 24.09.2006 itself. Therefore, the plaintiff discharged the said onus to the preponderance of probability. The onus shifted on the defendants to rebut the case of plaintiff.
32. The case of plaintiff is that the defendants dispossessed him on 24.09.2006. The defendant have put up a defence that plaintiff vacated the premises under the threat of sealing at his own instance without executing any document. However, the defendants in their written statement have neither mentioned any date, month or 19 CS No. 402/12 year nor stated the time at which the plaintiff voluntarily vacated the premises. As per order 6 rule 2 of CPC, every pleading shall contain material facts. The date on which the plaintiff allegedly vacated the premises was an extremely important fact.
33. In his crossexamination defendant no.1 i.e. DW1 earlier stated that plaintiff left the premises on 13.09.2006. Subsequently he stated that plaintiff remained tenant till 24.09.2006. This witness once again during crossexamination reaffirmed the suggestion that plaintiff was running the shop in suit premises prior to 24.09.2006. Thus, the version of plaintiff that he remained in possession of shop till 24.09.2006 stands proved.
34. The defendants have chalked out a defence that plaintiff left the premises but no document was executed. They have also raised a defence that they waived of rent of 38 months which was due to be paid by the plaintiff. It is highly unlikely that a landlord will not prepare any document of relinquishment of tenancy rights and even agree to forfeit /waive the rent of 38 months without executing any document.
20 CS No. 402/12
35. Moreover, the defendants in the para no. 5 of their written statement have taken a defence that the plaintiff on account of change of heart with a view of reentering the premises tried to get back the possession of the shop forcibly but his attempt was foiled by defendant's son. It has already been mentioned above that defendant no.1 categorically admitted that plaintiff was in possession of shop till 24.09.2006. Since the plaintiff was in possession of suit premises till 24.09.2006, there was no necessity for him to reenter in the premises on the same day. The plaintiff moved a complaint to a police on 24.09.2009 itself. The aforesaid fact clearly shows that the defendants have concocted a version for creating a defence.
36. The defendant also examined five independent witnesses to establish that the plaintiff had left the shop voluntarily. The first independent witness examined by the defendant's was DW3 Sh. Raj Kumar. In his crossexamination he admitted that defendant no.1 is his uncle. In his examination in chief he stated that plaintiff vacated the premises as there was threat of premises being sealed as he did not have the license. However, in his crossexamination he 21 CS No. 402/12 showed the ignorance of the aforesaid fact. Further in his cross examination he stated that does not know whether the plaintiff was forcibly dispossessed from the suit property on 24.09.2006 or not. He further stated that he knew defendant no.1 since his childhood and he had good relations with him. He also failed to tell whether the plaintiff had executed any other document while leaving the suit property. He also stated that he does not know whether any shop was sealed in the area or not. Finally, he suggested that he had heard from people that plaintiff was not having any license from any authority. The aforesaid statement of witness is clearly hearsay evidence. The over all reading of the crossexamination of DW3 shows that his testimony is not reliable and he had appeared as a witness at the instance of defendant.
37. DW4 in his crossexamination stated that he is not a summoned witness and he had come to the court to depose by himself. He came to know about the suit while interacting with other villagers. He got the affidavit filed by himself. The typist prepared the affidavit at his instructions and got the affidavit attested by himself. This witness tried to portray that he was independent 22 CS No. 402/12 witness and he was not deposing at the instance of defendants. However, the perusal of evidence of the other witnesses examined by defendants shows that affidavit of DW3 Sh. Rajiv Kumar, DW5 Sh. Vijay Kumar, DW5 Sh. Hari Chand, DW6 Sh. Kali Ram had a same typographical mistake regarding the date. All of them appeared in the court and deposed that the date has been wrongly typed as 13.09.2009, whereas, the correct date is 13.09.2006. It is difficult to believe that if the witness had himself dictated the affidavit to typist, the same typographical error would have occurred in the affidavit of the remaining witnesses as well. The portrayal of this witness showing himself as a independent witness is an attempt to mislead the court.
38. It is a settled proposition of law that principal of "falsusin uno falsus in omnibus" does not apply to the Indian legal system. However, this court has to weigh the evidence of the witnesses and scrutinize them carefully in order to deduce whether his testimony is trustworthy or not. It is duty of the court to separate grain from chaff. The witness who has deposed falsely about fact that he himself is appearing and is trying to portray as completely 23 CS No. 402/12 independent can easily depose falsely at the instance of the party who has called him to depose.
39. DW4 in his crossexamination further stated that he does not know whether the plaintiff took away his belongings in rickshaw or in auto. If the witness was present at the spot as alleged, he could have easily stated the mode of transportation. This witness along with other independent witness deposed that the plaintiff left the premises on 13.09.2006, whereas defendant no.1 himself in his crossexamination admitted that plaintiff remained as tenant in the suit property till 24.09.2006.
40. This witness further deposed that he had personal knowledge that plaintiff was not having license because he was on visiting terms with the plaintiff. To the very next question he replied that he does not know whether plaintiff had applied for such license or not. If the witness was on such visiting terms then that he was so aware that the plaintiff did not have a license, then he should have also known whether the plaintiff had applied for such a license. All these facts when seen in totality show that the testimony of this witness is doubtful and as such is not reliable.
24 CS No. 402/12
41. The defendants also examined DW5 Hari Chand. This witness in his crossexamination also stated that he got the affidavit prepared and attested by himself. However, he also stated that he does not know the contents of his affidavit. If the witness had got the affidavit typed and attested by himself, he should have been aware of its contents. This witness also tried to portray that he had come to the court alone and he was not called by the defendant. Once again it is necessary to note that his affidavit is identical to the affidavit of the remaining independent witnesses. The same error in date is present in his affidavit which is present in the affidavit of remaining witnesses. Thus, this witness also deposed falsely about the aforementioned facts in order to show independent nature of his deposition.
42. The said DW5 in his examination in chief stated that the plaintiff left the premises and he had no license for running the pork shop. However, in his crossexamination he stated that he does not know whether the plaintiff had any such license. He further stated that he does not know whether any document was executed when plaintiff left the premises. If this witness had seen such things, then 25 CS No. 402/12 should have been aware about the non execution of document as alleged. The testimony of this witness is also highly doubtful and it appears that he has deposed at the instance of defendants.
43. Defendants have examined DW6 Sh. Kali Ram. His affidavit by way of examination in chief is identical to the affidavit of remaining independent witness. He deposed that the plaintiff vacated the shop on 13.09.2006. It has already been mentioned above that as per defendants, the plaintiff remained tenant till 24.09.2006. He further stated that he does not know whether the jeweller's shop is adjacent to the suit property, whereas the other witness including defendant admitted that a jeweller's shop is adjacent to the suit property. The aforesaid fact also shows that witness is not believable.
44. The defendant finally examined DW7 Sh. Vijay Kumar S/o Sh. Bhule Ram. This witness in his crossexamination stated that he does not know whether the other two witnesses also accompanied the counsel for defendant and also stated that he has not been called by the Raj Kumar to depose but stated that he is deposing at the asking of counsel for defendant. As per provisions of The Advocates 26 CS No. 402/12 Act, the counsels are deemed to be unconnected with the factual controversy. It cannot be believed that a counsel will call on a witness to depose especially when there is no averment in the entire evidence that witness was closely known to the counsel. Once again it has been proved on record that this witness has falsely portrayed that he has not been called by the defendant and is an independent witness.
45. It is very necessary to note that in the present case all the said five witnesses i.e. from DW3 to DW7 deposed that plaintiff left the shop on 13.09.2006, whereas the defendant no.1 has stated that plaintiff remained tenant till 24.09.2006 These witnesses have obviously lied to this extent. The fact that witnesses have uniformly deposed about the date wrongly casts serious aspersions on the trustworthiness of their oral testimony.
46. Moreover, all these witnesses have treaded on common line to portray in the court that they are not connected with the defendants and they have come to depose of their own. As observed earlier there was a common mistake in all the affidavits of the witnesses regarding the date being 13.09.2009 and not 13.09.2006. 27 CS No. 402/12 Further the affidavits of Dws3, 4, 5, and 7 have been attested on the same date i.e. 02.06.2012 before oath commissioner Ms. Gudiya Sharma. The serial numbers of their affidavit are in continuation starting from number 9 to 13. The stamp of the local commissioner also shows that all these witnesses were introduced by one advocate. All these witness could not have appeared in the court of their own interest to depose. All these facts clearly prove on record that these witnesses have deposed falsely regarding the fact that they have not been called by the defendants to depose. It cannot be believed that these witnesses have not been called by defendants and they have deposed independently. Surprisingly all the witnesses have deposed falsely to this extent in unison. These witnesses appear to be tutored. Their testimonies do not appear to be worthy of credibility to any extent.
47. The counsel for defendants had rightly argued that the conduct of the litigants before or after the incident, is very essential for the court to arrive at any conclusion. Plaintiff has pleaded that defendants demolished the roof, back wall and slab during the pendency of the suit. The defendants did not specifically deny the 28 CS No. 402/12 aforesaid fact in their written statement, as they opted to go by their previously filed written statement, even after the plaintiff had incorporated amendments qua the said allegations that the defendants have had demolished the roof, back wall and slab. Therefore, there is no rebuttal to the said pleadings. Order 8 rule 3 to 5 of CPC deals with denial of facts in written statement. In Mehnga Singh vs. Gurdial Singh, AIR 2004 Punjab and Haryana 93 it has been held that, "If the denial of a fact is not specific but evasive, the said fact shall be taken to be admitted. In such an event, the admission itself being proof, no other proof is necessary. It is further held that under the proviso to Rule 5 of Order 8, CPC, the court may, in its discretion, require any fact so admitted to be proved otherwise than by such admission." Also in Sushil Kumar vs. Rakesh Kumar AIR 2004 SC 230 it has been held that, " In terms of Order VIII, Rule 3, a defendant is required to deny or dispute the statements made in the plaint categorically, as an evasive denial would amount to an admission of the allegation made in the plaint in terms of Order VIII, Rule 5 of Civil Procedure." Hence, it proves that the defendants broke the roof after 24.09.2006 and the aforesaid fact is very relevant to show the conduct of 29 CS No. 402/12 defendants.
48. Further, defendant no.2 while appearing as DW2, in his crossexamination admitted that roof of the shop was broken by the beldars at their instructions. The defendants also do not dispute the report of local commissioner which has been proved on record as Ex. PW1/H. The defendants while appearing as DW1 and 2 respectively in their crossexamination admitted that local commissioner took the photograph Ex. PW1/J on the spot. Since the aforesaid photographs are admitted, as per Section 58 of the Indian Evidence Act these were not required to be proved.
49. In his report Ex. PW1/H, the local commissioner has reported that the defendant has set up a temporary kitchen in the disputed property. He also reported that there was no wall on the backside and there was no roof in the kitchen. The local commissioner also reported that aforesaid kitchen looked like a "sham kitchen" which is not used normally. In this regard, I do not find strength in the argument of the counsel for defendants that the local commissioner exceeded his limit in mentioning that the kitchen 30 CS No. 402/12 was sham. The local commissioner was directed to report about existing structure in the suit premises, so he was justified in reporting what he saw on the premises.
50. I also do not agree with the arguments of counsel for the defendants that defendants are merely hand to mouth people and they are not supposed to have a lavish kitchen, therefore, the defendants were using suit premises as kitchen. The perusal of photographs Ex. PW1/J and the report of local commissioner clearly shows that there is no roof above the said kitchen. Although all persons will not necessarily have good amenities in their kitchen but, still the existence of roof is a very basic necessity for use of a kitchen. The perusal of photographs also show that there is no drainage from the aforesaid premises. It is also difficult to believe that the premises without roof and without drainage can be used for a kitchen. Hence, it is clearly proved on record that the defendants were using the premises as a kitchen merely to show at the time of inspection of local commissioner that they were using the suit premises for their personal usage. The said conduct of the defendants is clearly not in the normal course of conduct. If the 31 CS No. 402/12 tenant had left the premises voluntarily there would have been no necessity for breaking the roof of the premises, if it was to be utilized for their personal use.
51. The arguments of counsel for defendants that the conduct of the plaintiff was not natural is also without force. Any person after being dispossessed will move a complaint before police. The plaintiff is admitted to be a tenant till 24.09.2006 and it has been proved that he moved the compliant on 24.09.2006 itself. The plaintiff could not have done anything else other than making the complaint to police. The delay in part of police in registering the FIR cannot be termed as a fault or lapse of the plaintiff. Hence, there is nothing unnatural in the conduct of the plaintiff.
52. It has also been argued by the counsel for defendant that suit is barred by delay and laches. It is necessary to note that the provision of Section 6 of the Specific Relief Act confers a statutory right on the plaintiff to regain possession if he has been dispossessed without his consent. The law provides a limitation of six months. Therefore, the grant of relief envisaged U/s 6 of Specific Relief Act is not a discretionary relief and cannot be refused on the ground of 32 CS No. 402/12 delay. The plaintiff was dispossessed on 24.09.2006 and he filed the suit on 23.03.2007 i.e. within period of six months. Hence, it is within limitation.
53. The plaintiff has properly explained the reason for not filing the suit earlier as the plaintiff contemplated that the defendant will handover the possession. The plaintiff has not been cross examined to that extent by defendant, therefore, the aforesaid contention is deemed to have been admitted. Therefore, there was no delay in filing the suit.
54. Thus, from the the evidence on record it stands proved that the plaintiff was in possession of the suit premises till 24.09.2006. He never attempted to reenter in the premises forcibly. The act of defendant in breaking the roof and back wall clearly shows their malafide intention in preventing the plaintiff from seeking possession of the shop. There is absolutely no explanation on record to show the reason for which the roof of the shop was broken by the defendants. The lack of explanation also points out to the fact that defendants had malafide intention and it was only done for the purpose of taking up a defence that there is no shop left in the suit 33 CS No. 402/12 premises. The aforesaid fact also falsifies the defence that the plaintiff left the shop under the fear of sealing and then had change of heart and tried to repossess the premises.
55. Thus, in view of the aforesaid discussion it has to be concluded that defendants have failed to discharge the onus which shifted upon him. The plaintiff has proved to the preponderance of probability that he was dispossessed of the suit property otherwise than in due course of law and without his consent. He has also proved that he has filed the suit within six months from being dispossessed without his consent. Hence, plaintiff has established that he is entitled to relief of possession. Accordingly, the plaintiff has proved this issue. Accordingly, this issue is decided in favour of plaintiff and against the defendants.
ISSUE No.4
56. Onus to prove this issue was on the plaintiff. The plaintiff has filed the present suit u/s 6 of Specific Relief Act. The parameters for adjudication of claim u/s 6 of Specific Relief Act and for perpetual injunction U/s 38 of Specific Relief Act are completely 34 CS No. 402/12 different. The proceedings u/s 6 of Specific Relief Act are almost summary in nature. The suit for injunction is an appealable relief. However, no appeal is provided against judgment passed u/s 6 of the Specific Relief Act.
57. In Adapa Tatarao Vs. Chamantula Mahalakshmi AIR 2007 Andhra Pradesh 44, the Hon'ble Andhra Pradesh High Court held that, " Another serious infirmity in the proceeding is, that the respondent incorporated the relief of perpetual injunction in respect of another item, filed under Section 6 of the Act. This is totally impermissible. The parameters for adjudication of claim under Section 6, on the one hand, and the one, for perpetual injunction. Under Section 38 of the Act, on the other hand are totally different. In the case of the former, the trial is summary in nature. The decree passed in such proceedings is not appeallable. In contrast, a detailed trial has to be conducted in a suit for perpetual injunction. An appeal under Section 96 of CPC and second appeal under Section 100 of CPC is provided against the decree passed in such suits. It is impossible and impermissible to mix up such 35 CS No. 402/12 divergent types of adjudication. Therefore, the judgment and decree passed by the trial court need to be set aside, and the matter needs to be adjudicated on the proper line, afresh". Thus, as per law, the suit for permanent injunction is not maintainable along with suit U/s 6 of the Specific Relief Act.
58. It is necessary to note that the main relief claimed is for possession u/s 6 of the Specific Relief Act and the relief claimed for perpetual injunction is an ancillary relief. Prayers of both the reliefs are separable. Merely because perpetual injunction cannot be granted will not lead to a consequence that suit u/s 6 of the Specific Relief Act will also fall. In Adapa Tatarao Vs. Chamantula Mahalakshmi AIR 2007 Andhra Pradesh 44, it has been further held that, " for the foregoing reasons, the C.R.P. is allowed, and the judgment and decree passed by the trial Court is set aside. The matter is remanded to the trial court for fresh disposal. The relief of perpetual injunction, in respect of the item II of the suit schedule, shall stand rejected. As regards item I, the trial court shall proceed to decide the matter on the basis of the following 36 CS No. 402/12 issues, viz.
"Whether the plaintiff was dispossessed from item I, of the plaint schedule, otherwise than in accordance with the procedure prescribed by law, withing six months, precedign the date of the filing of suit". Hence, the Hon'ble Andhra Pradesh High Court also dismissed the claim for permanent injunction and directed the trial court to decide the suit as per Section 6 of the Specific Relief Act.
59. Thus, the plaintiff cannot claim perpetual injunction in a suit filed u/s 6 of the Specific Relief Act. Accordingly, this issue is decided against the plaintiff and in favour of defendants. ISSUE No. 5
60. Onus to prove this issue was on the plaintiff. The case of plaintiff is that after being forcibly dispossessed, the defendants broke the roof, back wall and slab measuring 3'.5" x 8' and is now using the same a sham kitchen. The plaintiff has therefore, alleged that defendants have changed the structure of the premises after plaintiff was dispossessed.
37 CS No. 402/12
61. It has already been discussed above that defendant did not file any written statement qua these allegations and the aforesaid facts are deemed to have been admitted. Moreover, the plaintiff has not been crossexamined qua the aforesaid averments as stated in his affidavit. Hence, even in this regard the averments are deemed to have been admitted. Further DW2 i.e. defendant no.2 admitted that the roof of the shop was broken as per their instructions.
62. In issue no.3 it has already been held that, defendants dispossessed the plaintiff without his consent and otherwise than in due course of law. In issue no.3 it has also been held that defendants had changed the structure of the premises by breaking roof, back wall and slab with malafide intention. The aforesaid fact clearly shows that change of the structure of the suit premises was for creating obstruction in the execution of rights of the plaintiff of being repossessed. In Krishna Prasad Sinha and Anr. Vs. Vikash Singh & Ors. AIR 2007 Patna 112, the Hon'ble Patna High Court held that, " no doubt in a suit under Section 6 of the Act, the only decree that can be passed is that of restoration of possession. 38 CS No. 402/12 Restoration of possession must necessarily mean removal of obstruction on the enjoyment of possession by the plaintiff, removal of obstruction to the possession by the defendants and restoring the full enjoyment of possession to the plaintiffs. If the defendants have obstructed the passage to the land by constructing a boundary wall then a decree of restoration of possession must necessarily direct removal of that boundary wall as without removal thereof possession cannot be restored. In the present case in view of the findings recorded, it is found that the defendants (petitioners herein) had created obstacles and prevented the plaintiffs from enjoying and exercising their possession thereby ousting them. This could only be restored by ordering removal of obstacles which was rightly done". It has been further held, " to my mind, the defendants cannot be heard to say that they had illegally or unlawfully occupied the land and having constructed thereon, other cannot be asked to vacate the land because if a decree for vacating the land and handing over possession has to be granted 39 CS No. 402/12 and has to be meaningful, it goes without saying that they have to vacate and hand over any construction made by them as well subject to their getting back possession by virtue of the title suit which they have filed for declaring their title over the said land".
63. Thus, in view of the law laid down above, the court can pass a decree of injunction in order to remove the obstruction for the full effective implementation of the decree for possession passed u/s 6 of the Specific Relief Act. It has already been held that the defendants intentionally carried out alterations in the suit premises for creating obstruction for preventing the plaintiff from regaining possession. There is no doubt that the aforesaid obstruction has to be removed for the proper implementation of the decree. The courts cannot become helpless witnesses when one of the parties indulge in activities meant to prevent or obstruct the grant of actual relief available to a party who is so entitled. The decree has to be passed which is capable of being implemented, so that justice is imparted in totality.
64. Even otherwise the averments in the plaint and affidavit of 40 CS No. 402/12 PW1 are that the defendants intentionally changed the structure of the property during the pendency of the suit. There is no denial of the aforesaid averments. Hence, it is also proved on record that the aforesaid alterations were made during the pendency of the suit. In such circumstances, the court can order the status quo ante to be maintained. Rather it becomes the obligation of the court to enforce status quo ante.
65. It is not disputed that earlier the shop had a roof on the top, a wall on the backside and a slab measuring 3'.5" x 8'. The plaintiff has proved site plan of the suit premises showing that it measured 8 feet x 9 feet. The defendants have not refuted that the dimensions of the shop are wrong. The defendant no.1 in his crossexamination has also failed to deny that the shop was measuring 8 x 9 feet. No other version has been put forth regarding the measurements of shop. Hence, it is established that suit premises consisted of a shop measuring 8 feet x 9 feet having a roof, back wall and slab as mentioned above. Since, the defendants have brought the aforementioned changes wrongfully, they are under obligation to bring the shop in its original position.
41 CS No. 402/12
66. Therefore, the plaintiff has proved that he is entitled to relief of mandatory injunction. Accordingly, this issue is decided in favour of plaintiff and against the defendants.
RELIEF
67. In view of the findings given on the aforesaid issues, suit of the plaintiff is partly decreed with costs. The suit of plaintiff for possession and mandatory injunction is decreed and defendants are directed to restore the tenanted shop bearing no. 134/1, Taimoor Nagar, New Friends Colony, New Delhi to its original condition by re constructing the roof, back wall and marble slab measuring 3'.5" x 8' and thereafter handover the physical and vacant possession thereof to plaintiff. The suit of plaintiff qua relief of permanent injunction restraining defendants from creating any third party interest in the suit property is dismissed. Decree sheet be prepared. File be consigned to record room after due compliance.
Announced in the open court (SUSHANT CHANGOTRA)
On 26.02.2013 CIVIL JUDGE06 (WEST)
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