Delhi District Court
Omar Farooq vs Mohammed Kalwa on 20 April, 2023
IN THE COURT OF SH. AKASH JAIN
ADDITIONAL DISTRICT JUDGE-01
SOUTH-EAST DISTRICT, SAKET COURTS: NEW DELHI
MCA DJ No:- 16/22
Omar Farooq @ Umar Farrukh v. Mohammed Kalwa
Omar Farooq
S/o Late Sh. Rafi Ahmad
R/o 82, Gali Kikar Wali
Chatta Lal Mian, Daryaganj
New Delhi-110002
Also At:-
Shop No. 14, New Subzi Mandi
Okhla, New Delhi
...... Appellant
versus
Mohammed Kalwa
S/o Sh. Shahbuddin
R/o F-56, Abul Fazal Enclave
Okhla, New Delhi-110025
Also at:-
Shop No. 160, New Subzi Mandi
Okhla, New Delhi
...... Respondent
Date of Institution : 30.05.2022
Date of Reserving Judgment : 03.03.2023
Date of Decision : 20.04.2023
Final Decision : Dismissed
JUDGMENT
1. The present appeal is filed by appellant/defendant Omar Farooq against plaintiff/respondent Mohammed Kalwa under Order XLIII Rule 1(r) r/w Section 104 of The Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC') while impugning order dated 25.04.2022 passed by Ld. Civil Judge-02, MCA DJ No:- 16/22 Omar Farooq @ Umar Farrukh v. Mohammed Kalwa Page No. 1 of 14 South-East District, Saket Court, New Delhi. For the sake of convenience, I would be referring to the parties as per their original nomenclature before Ld. Trial Court.
2. By way of aforesaid order, Ld. Trial Court had been pleased to dismiss an application under Order XXXIX Rule 4 CPC filed by the defendant and partly allowed the application of plaintiff filed under Order XXXIX Rule 1 and 2 CPC.
Brief Facts
3. Succinctly stated, as per the Trial Court record, plaintiff had filed a suit for permanent injunction against the defendant to restrain him from illegally entering or trespassing into Shop bearing no. 14, New Subzi Mandi, Okhla, New Delhi (hereinafter referred to as 'suit property'), from dispossessing the plaintiff from the suit property and from threatening and disrupting the business of the plaintiff in the suit property. It is averred by the plaintiff that he had been the tenant in the suit property since year 2003 at a monthly rent of Rs.1,500/- per month wherefrom he conducts his business of selling fruits/vegetables. The original owner of the suit property was father of defendant Late Sh. Rafi Ahmad, who used to issue rent receipts of and on. It is averred that after the demise of his late father, defendant had been taking rent from plaintiff in cash and had been asking him to vacate the suit property since September, 2021. It is alleged that defendant had been entering the suit property forcibly to disrupt the business of plaintiff since November, 2021 and had also threatened the plaintiff that if the suit property is not vacated, he would throw away the articles of MCA DJ No:- 16/22 Omar Farooq @ Umar Farrukh v. Mohammed Kalwa Page No. 2 of 14 plaintiff and forcibly dispossess him. Hence, the suit for permanent injunction was filed by the plaintiff.
4. In response to the same, defendant filed his written statement and vehemently denied the averments made in the plaint. The defendant denied that the suit property was ever given to the plaintiff on rent and averred that father was allotted the suit property by DDA and he obtained the licence from APMC, Delhi and started the business of fruits and vegetables in the name of 'Zum Zum Traders'. The suit property was purchased from DDA on 26.05.2006 and cannot be a subject matter of lease as it is barred by the APMC Act and bye laws. It is averred that only defendant has been running his business from the suit property and plaintiff forged and fabricated the rent receipts filed in the Court.
5. Vide application under Order XXXIX Rule 4 CPC, defendant averred that he is regularly doing business from the suit property and had also filed a writ petition bearing W.P.(C) no. 563/21 for removal of unauthorized occupants sitting in front of the suit property. Hon'ble Delhi High Court vide order dated 15.01.2021 directed the police and the APMC to remove the unauthorized occupants in front of the shop, which clearly shows that the defendant is in possession of the suit property. It is averred that all the electricity bills, house tax, water tax qua suit property are paid by the defendant and in fact during the covid-19 pandemic on 23.04.2020 an FIR was registered against the defendant for violating the lock-down restrictions as he was sitting in the suit property and selling vegetables. With these MCA DJ No:- 16/22 Omar Farooq @ Umar Farrukh v. Mohammed Kalwa Page No. 3 of 14 submissions, the defendant prayed that the ex-parte stay granted by Ld. Trial Court be vacated in terms of order XXXIX Rule 4 CPC.
6. In reply to the application under Order XXXIX Rule 4 CPC, plaintiff asserted that the defendant concealed material facts including an incident which took place on 22.01.2022, pursuant to which defendant and his associates were detained by the police. As per the kalandara made by the police, it was recorded that the ASI from Police Station Amar Colony found defendant and his associates abusing the plaintiff in loud voice while claiming himself as owner of Shop no. 14, which was given to plaintiff on rent, who refuses to vacate and defendant would get the same vacated on same day. It is averred that the aforesaid kalandara affirms that plaintiff is under constant threat of illegal dispossession from defendant. It is averred that since the suit shop was allotted to father of defendant by DDA and the licence to conduct business there was issued by APMC, all the activities are required to be done in the name of original licencee as APMC does not record the name of tenants in its records. It is averred that though the business activities at suit property were carried out by the plaintiff since 2003, the market fees used to be deposited in the name of M/s Zum Zum Traders F & V and the corresponding charges were paid by the plaintiff in cash to defendant.
Reasoning of Ld. Trial Court
7. After scrutinizing the record and analyzing the rival submissions made at the bar vide order dated 25.04.2022, Ld. Trial Court was pleased to dismiss the application under Order MCA DJ No:- 16/22 Omar Farooq @ Umar Farrukh v. Mohammed Kalwa Page No. 4 of 14 XXXIX Rule 4 CPC filed by the defendant and partly allowed application under Order XXXIX Rule 1 and 2 CPC, moved by the plaintiff, while interalia observing that there is no denial or challenge to the ownership of defendant qua suit property, however, the plaintiff had prima-facie established his possession in the suit property in terms of documents viz. copy of rent receipts, ITR receipts and Kalandara filed on 22.01.2022.
Relevant Grounds of Appeal
8. Vide present appeal, the defendant has expressed discontent with the observations and findings of Ld. Trial Court and interalia urged that the findings of Ld. Trial Court are perverse, vague and not in accordance with the law. The defendant has challenged the impugned order dated 25.04.2022 primarily on the following grounds as under:-
(a) That the impugned order is untenable, arbitrary, irrational and contrary to law;
(b) That Ld. Trial Court failed to appreciate that the copy of rent receipts filed on record on behalf of plaintiff are manifestly forged and fabricated;
(c) That Ld. Trial Court failed to appreciate that the suit property was allotted by DDA to the father of defendant and he got licence from APMC, Delhi and started the business of fruits and vegetables in the name of Zum Zum Traders.
Thereafter, the suit property was purchased from DDA on 26.05.2006 by the father of defendant and after his sudden demise, the defendant and his mother became the owner of the suit property and defendant continued to do business in the same;
(d) That Ld. Trial Court failed to appreciate that vide W.P.(C) No. 563/2021, defendant approached Hon'ble Delhi High Court seeking removal of illegal encroachment in front of the suit property and relief was duly granted vide order dated 15.01.2021 and 23.03.2021. It is stated that the record of MCA DJ No:- 16/22 Omar Farooq @ Umar Farrukh v. Mohammed Kalwa Page No. 5 of 14 aforesaid writ petition clearly shows that defendant has been doing business in the suit property;
(e) That Ld. Trial Court failed to consider FIR no. 174/20 under Section 188, 269, 270 IPC and Section 3 of Epidemic Diseases Act, 1977, which was registered against the defendant as he was found working in the suit property during pandemic. It is stated that this FIR also shows that it is defendant who has been working in the suit property;
(f) That Ld. Trial Court failed to appreciate that as per APMC Act and Bye laws, the suit property cannot be a subject matter of lease as averred by the plaintiff;
(g) That Ld. Trial Court ignored the fact that all the electricity bills, house tax, water tax etc. qua suit property were paid by defendant which clearly shows that the defendant is in the possession of the suit property;
(h) That Ld. Trial Court failed to appreciate that plaintiff created a false challan for violation of covid protocols to establish his possession in the suit property;
(i) That Ld. Trial Court ignored the fact that plaintiff is already carrying out business of fruits and vegetables at shop no. 160, Okhala Mandi under the name of M/s Faisal Fruits and Vegetables and has no connection whatsoever with the suit property.
9. In reply to the present appeal, while denying the averments so made by the defendant, plaintiff stated that Ld. Trial Court had passed a well-reasoned and balanced order after carefully examining the rival submissions at the bar and documents adduced on record. It is averred that question of genuineness of documents filed on behalf of both the parties could only be decided after leading of evidence during trial. It is further averred that factum of suit property being owned by father of defendant is not in dispute, however, the suit property was let out to the plaintiff by father of defendant in the year 2003 at a monthly rent of Rs.1,500/- per month. Since, APMC Rules, MCA DJ No:- 16/22 Omar Farooq @ Umar Farrukh v. Mohammed Kalwa Page No. 6 of 14 require that the dues could only be deposited in the name of licencee i.e. business concern of defendant namely, Zum Zum Traders, thus, the charges of APMC were paid in the name of Zum Zum Traders, while the suit property remained in possession of plaintiff all along. It is averred that the receipts of market fee deposits, as placed on record by the defendant are forged and irrelevant for ascertaining physical possession of the suit property or tenancy of the plaintiff. It is further submitted that the rent receipts and income tax returns filed on record on behalf of plaintiff clearly shows that he had been in possession of the suit property since year 2003 and had been conducting business there from. The plaintiff further relied upon copies of sale receipts of various dates depicting sale of fruits and vegetables by him from the suit property. The plaintiff further placed on record copies of truck invoices "biltis" of various dates showing transportation of fruits and vegetables by Vyapari Transport Company, Jwala Pur, Uttarakhand, wherein the name of recipient is mentioned as that of plaintiff and which goods were received at suit property. With these submissions, the plaintiff prayed that the possession over suit property in capacity of tenant has been prima-facie established by him, balance of convenience also lies in his favour and irreparable loss would be caused to him if order dated 25.04.2022 is not sustained.
Analysis and Finding of this Court
10. I have heard the rival submissions made on behalf of both the parties and carefully perused the material adduced on record.
MCA DJ No:- 16/22 Omar Farooq @ Umar Farrukh v. Mohammed Kalwa Page No. 7 of 14
11. It is well settled that the power conferred under Order XXXIX Rule 1 and 2 CPC in granting or refusing temporary injunction essentially lies in the realm of discretion of the Court. The power, therefore, has to be exercised with the greatest care, caution and in accordance with reasons and sound judicial principles. A person who seeks a temporary injunction must satisfy the Court, firstly that there is a serious question to be tried in suit to dispel cloud of doubt relating to his entitlement and there is probability of plaintiff being entitled to the relief sought by him. Secondly, the court's interference is necessary to protect him from threatened species of injuries enumerated under Order XXXIX Rule 1 and 2 CPC which the Court considers irreparable before his legal right, can be established on trial. Lastly, the comparative inconvenience which is likely to ensue from withholding temporary injunction would be greater than that which is likely to arise from granting it.
12. Suffice it to say, the factum of suit property being owned by father of defendant and after his demise by the defendant is not in dispute. It is primarily contented on behalf of defendant that the plaintiff has never been in possession of the suit property and pursuant to ex-parte stay obtained from Ld. Trial Court vide order dated 20.01.2022, the plaintiff forcibly took possession of the suit property on 22.01.2022 from the defendant. It is further contended on behalf of defendant that he had been conducting his business of fruits and vegetables in the name of Zum Zum Traders from the suit property and in support of his contentions, defendant relied upon following documents:-
MCA DJ No:- 16/22 Omar Farooq @ Umar Farrukh v. Mohammed Kalwa Page No. 8 of 14
(i) Copy of order dated 27.09.2021 passed by APMC, Delhi substituting the name of defendant as proprietor of M/s Zum Zum Traders;
(ii) Photographs showing defendant in the possession of suit property;
(iii) Payment receipt dated 31.05.2021 of electricity bill;
(iv) Copy of challan for payment of market fees in the name of Zum Zum Traders;
(v) Copy of property tax receipt of suit property deposited before MCD by the defendant;
(vi) Copy of receipt of water bill in the name of M/s Zum Zum Traders;
(vii) Copy of payment receipts of miscellaneous fees paid to APMC, Delhi;
(viii) True copy of order of Hon'ble High Court of Delhi for removal of encroachments in front of suit property;
(ix) True copy of charge-sheet in FIR No. 174/20 registered against defendant under Section 188, 269, 270 IPC and Section 3 Epidemic Diseases Act;
(x) True copy of reply of RTI dated 21.03.2022.
13. With respect to documents mentioned at sr. no. 1, 3, 4, 5, 6 and 7, it is argued on behalf of plaintiff that these documents only reflect that the requisite bills, challans, market fees and dues qua suit shop were being paid to APMC and other departments in the name of M/s Zum Zum Traders. It is argued that the licence to conduct business by APMC at suit shop was issued to M/s Zum Zum Traders, as such, all the activities were to be carried out and dues were to be paid in the name of original licencee and plaintiff used to pay cash to the defendant in lieu of such deposits. It is further argued that APMC Rules bar any sub-
MCA DJ No:- 16/22 Omar Farooq @ Umar Farrukh v. Mohammed Kalwa Page No. 9 of 14 licence, as such, both the parties in order to escape from the rigors and consequences of APMC Rules were carrying out such arrangement since year 2003.
14. In response to the arguments of Ld. Counsel for plaintiff, Ld. Counsel for defendant argued that nothing substantial is brought on record by the plaintiff to show that he had been occupying the suit shop since year 2003 in the capacity of tenant except copies of some rent receipts which are per se forged and fabricated and an expert report is also filed on behalf of defendant to support the same.
15. Ld. Trial Court has rightly held that the question as to whether the rent receipts filed on record by the plaintiff are forged and fabricated can only be determined by leading evidence during trial. Moreover, the genuineness of private expert report cannot be ascertained and verified at this nascent stage of proceedings. Ld. Trial Court has further rightly observed that the ITRs filed by plaintiff on record showing his address as that of suit shop run from the assessment year 2004-05 to 2021-22 and it would be too far fetched that the plaintiff was filing in wrong details of his property since year 2004 so as to assert his rightful claim over the suit property in the year 2021.
16. It is not out of place to mention here that the plaintiff has also relied upon copies of truck invoices i.e. "biltis" of various dates showing transportation of fruits/vegetables through trucks from Jwalapur, Uttrakhand, which were received by plaintiff at suit shop. Furthermore, plaintiff has placed on record copies of MCA DJ No:- 16/22 Omar Farooq @ Umar Farrukh v. Mohammed Kalwa Page No. 10 of 14 few sale receipts of different dates vide which fruits and vegetables were sold by him at the suit shop. The aforesaid documents also prima-facie show that plaintiff is not a stranger to the suit shop, as alleged by the defendant. Ld. Counsel for defendant has asserted that since suit shop could not have been sub-let as per APMC Rules, thus, the alleged tenancy of plaintiff could not be recognized by the Court. However, this contention of defendant is not tenable. Ld. Trial Court has rightly observed that the said contention could not be accepted in as much as no one can be allowed to take advantage of his own wrong. Mere fact that suit shop could not have been sub-let by the original licensee does not mean that it had not been sub-let.
17. With respect to copy of charge-sheet relied upon by plaintiff, I am in agreement with the findings of Ld. Trial Court that it only reflects that defendant was in shop on 23.04.2020, when the country was under lockdown and no business activities were being carried out across the nation. This document in itself does not establish the claim of defendant that the plaintiff had not been carrying out business activities at the suit shop. Similarly, orders of Hon'ble Delhi High Court in W.P.(C) No. 563/2021, dated 15.01.2021 and 23.03.2021 only reflect that defendant being owner of the suit shop had prayed for removal of encroachment in front of the shop. These orders do not in any manner show that the said shop was in possession of the defendant during the relevant period or that he had been carrying out his business activities from the suit shop.
18. The defendant has relied upon certain photographs to MCA DJ No:- 16/22 Omar Farooq @ Umar Farrukh v. Mohammed Kalwa Page No. 11 of 14 establish his possession over the suit shop. However, the said photographs cannot conclusively determine the fact that defendant had been carrying out his business activities from the suit property in as much as the shop being a commercial property is accessible to everyone and it is already averred on behalf of plaintiff that defendant used to frequently visit the suit shop for collection of the rent and other charges. As such, mere presence of defendant at the suit shop does not in any manner establish his possession over the same.
19. It is not out of place to mention here that a Kalandara was also registered on 22.01.2022 wherein the ASI had recorded the happenings of the day and it was specifically recorded that one Umar Farukh S/o Rafiq Ahmad stated that he is the owner of Shop 14, Okhla Sabzi Mandi and had given his shop to Mohd. Kalwa S/o Mohd. Sahabuddin, R/o F-56, Abdul Fazal Enclave, Jamia Nagar, New Delhi who is not vacating the shop and he will get the same vacated today. While the defendant has disputed the findings and recordings made in the Kalandara and alleged that concerned police officials were hand in gloves with the plaintiff, there is no reason at this stage to suspect the role of police officials to support the claim of the plaintiff.
20. In the case of Gujarat Bottling Co. Ltd. & Others v.. Coca Cola Company & Others, 1995 SCC (5) 545, Hon'ble Supreme Court of India reiterated the principles for grant of temporary injunction and held as under:-
".... The grant of an interlocutory injunction during the pendency of legal proceedings is a matter requiring the exercise of discretion of the Court. While exercising the MCA DJ No:- 16/22 Omar Farooq @ Umar Farrukh v. Mohammed Kalwa Page No. 12 of 14 discretion the Court applies the following tests (1) whether the plaintiff has prima facie case; (2) whether the balance of convenience is in favor of the plaintiff; and (3) whether the plaintiff would suffer an irreparable injury if his prayer for interlocutory injunction is disallowed. The decision whether or not to grant an interlocutory injunction has to be taken at a time when the existence of the legal right asserted by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. Relief by way of interlocutory injunction is granted to mitigate the risk of injustice to the plaintiff during the period before that uncertainty could be resolved. The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favor at the trial. The need for such protection has, however, to be weighed against the correspondent need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The Court must weigh one need against another and determine where the balance of convenience lies...."
21. In the present case, both the plaintiff and defendant have produced various documents in support of their respective claims qua possession over the suit shop. While ownership of suit shop by defendant is not in dispute, the aspect of possession is indeed contentious and could only be decided at the trial on evidence. In terms of law laid down in the case of Gujarat Bottling Co. Ltd. & Others (supra), the object of interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favor at the trial. The copy of rent receipts, ITR for the assessment year 2004-05 to 2021-22, truck invoices, sale invoices and Kalandara, prima-facie show that plaintiff is not a stranger to the suit property as alleged by the defendant and has been carrying MCA DJ No:- 16/22 Omar Farooq @ Umar Farrukh v. Mohammed Kalwa Page No. 13 of 14 out his business activities at the suit shop. Balance of convenience also lies in favour of plaintiff and against the defendant. Moreover, irreparable injury is likely to ensue upon the plaintiff which would not be adequately compensated in damages if the possession of the plaintiff is not protected.
22. In these circumstances, I hold that Ld. Trial Court rightfully dismissed the application moved on behalf of defendant under Order XXXIX Rule 4 CPC and partly allowed the application of plaintiff filed under Order XXXIX Rule 1 and 2 CPC. No infirmity is found in the impugned order dated 25.04.2022 which warrants any interference by this Court. Accordingly, the appeal in question is dismissed.
23. Trial Court Record be sent back to the Ld. Trial Court along with copy of this judgment.
24. File be consigned to record room after due compliance.
ANNOUNCED IN OPEN (AKASH JAIN)
COURT ON 20.04.2023 ADJ-01, SOUTH-EAST
SAKET, NEW DELHI
This judgment contains 14 pages and each paper is signed by me.
(AKASH JAIN) ADJ-01, SOUTH-EAST SAKET, NEW DELHI MCA DJ No:- 16/22 Omar Farooq @ Umar Farrukh v. Mohammed Kalwa Page No. 14 of 14