Delhi District Court
Sh. Gulsher vs Mohd. Yusuf on 23 March, 2017
IN THE COURT CIVIL JUDGE06 (CENTRAL), TIS HAZARI COURTS, DELHI
SUIT NO. 594633/16
PRESIDED BY HARSHITA VATSAYAN(CIVIL JUDGE)
Unique ID No. 02401C1130762007
MEMO OF PARTIES
1.Sh. Gulsher
2. Mohd. Sher (Deceased Through LRs) i. Smt. Aasma Begum ii. Sh. Mustakh Mohd.
iii. Smt. Shahnaz iv. Smt. Mehnaz v. Ms. Vinaj vi. Ms. Rosheen vii. Ms. Kashish (All of shop no. 114, Chhata Lal Mian, Darya Ganj, New Delhi) .......Plaintiffs VERSUS
1. Mohd. Yusuf
2. Abdul Gaffar (Deceased Through LRs) i. Ms. Mubina Begum ii. Mohd. Asif iii. Mohd. Arish iv. Nidha Bano
3. Mohd. Saleem
4. Mohd. Mukeem
5. Mohd. Nasim
6. Nasreen Begum
7. Nazreen Bano (All R/o. 113, Chhata Lal Mian, Darya Ganj, New Delhi) ..........Defendants Suit No. 594633/16 Gulsher Vs. Mohd. Yusuf 1/17 Date of institution of the Suit: 12.11.2007 Date on which Judgment was reserved: 07.03.2017 Date of pronouncement of Judgment: 23.03.2017 SUIT FOR PERMANENT INJUNCTION JUDGMENT
1. Vide this judgment, I shall dispose off the suit filed by the plaintiffs against the defendants, seeking the relief of permanent injunction, thereby permanently restraining the defendants and their agents from interfering in the repair and installation of the bhatti (furnace) and other repair work in the suit property.
PLEADINGS OF THE PARTIES
2. Succinctly put, the factual matrix of the case is as under: "The plaintiffs are stated to be in possession of Shop No. 114, Chatta Lal Mian, Darya Ganj, New Delhi as tenants since a very long time and they had initially been paying the monthly rental for the suit property @ Rs. 80/ per month, which was subsequently revised to Rs. 100/ per month. The plaintiffs had originally been inducted as tenants of Late Shri Mohd. Rahim and the defendants herein were the Legal heirs of Late Shri Mohd. Rahim. The plaintiffs are stated to be running the business of bakery and confectionary from the suit property and they are Suit No. 594633/16 Gulsher Vs. Mohd. Yusuf 2/17 carrying on the business under the name and style of "Gulsher Khan Bakery". The plaintiffs had been baking items for sale in the suit property and they also had a license issued in their name from the Municipal Corporation of Delhi (hereinafter referred to as "MCD") as per Section 421 of the Municipal Corporation of Delhi Act. The shop of the plaintiffs was also registered with the Shops and Establishment Office and the plaintiffs are also stated to have procured the necessary permission from the police authorities to carry out the business in baking and confectioneries from the suit premises. Plaintiffs further aver that for the purpose of running the bakery, they had installed a chimney and a bhatti (furnace) in the suit property. These two structures/ appliances/ installations have been existing the suit property from the very inception of tenancy. When the plaintiffs first entered into the suit property as tenants, there was no construction on the first floor. The chimney of the plaintiffs' bakery was installed right above their shop. However, after a lapse of 45 years, construction work was carried out on the first floor of the suit property. The route and location of the chimney was accordingly modified and it was shifted to a space adjoining the neighbour's place. The defendants had been continuously asking the plaintiffs to increase the rent substantially and when the plaintiffs raised a demur against the said demand and didn't acquiesce to the request of upward rent revision, the defendants are stated to have extended threats of forcible dispossession to the plaintiffs. Allegedly, the defendants had threatened the plaintiffs that in case they didn't relent and agreed to the increase in Suit No. 594633/16 Gulsher Vs. Mohd. Yusuf 3/17 rent, then the defendants shall ensure that the plaintiffs are unable to carry on the bakery business from the suit property. In the year 1993, the chimney of the plaintiffs' bakery was dismantled and the plaintiffs wanted to install a new one. However the same was opposed by the defendants, who adopted an obstructionist attitude towards the said installation. Aggrieved by the said obstructionist attitude of the defendants, the plaintiff was compelled to institute a suit against the defendants (suit no. 294/93 before the Court of Shri Virender Kumar Bansal). In this suit filed before the Court Of Shri V.K. Bansal, the plaintiffs are stated to have moved an interim application under Order XXXIX Rules 1 and 2 CPC, which was allowed by the Ld. Presiding Officer on 21.09.1993. As a counter blast to this suit, the defendants are also stated to have filed another suit against the plaintiffs for relief of permanent injunction, thereby restraining the plaintiffs from installing the chimney. The defendants had also moved an interim application under Order XXXIX Rules 1 and 2 CPC for the above mentioned relief. However, the same was rejected by the Court of Shri Mahavir Singhal vide order dated 27.04.1993. The defendants were aggrieved by the said order and they preferred an appeal against this impugned order. Even the Appeal was dismissed by the Court of Shri S.M. Chopra, the Senior Civil Judge, Delhi. When the plaintiffs wanted to install a chimney in the suit premises, the defendants by distorting the facts obtained a stay order against the said installation from the Court of Shri VK Maheshwari. Thereafter, the plaintiffs had to move an appropriate application seeking Suit No. 594633/16 Gulsher Vs. Mohd. Yusuf 4/17 a vacation of the stay order. As the defendants were unrelenting and persisted with their unrelenting obstructionist approach, the plaintiffs were constrained to file a contempt petition before the Hon'ble High Court of Delhi. The Hon'ble High Court of Delhi convicted the defendants for deliberate flouting of judicial orders and also imposed a fine of Rs. 10,000/ on some of the defendants for flagrant violation of the judicial order. The case was finally decided by the Court of Shri Sanjeev Jain. The suit was decreed based on the statement of the defendants that they would not obstruct to the installation of the chimney as was pleaded by the plaintiffs. The chimney was installed by the plaintiffs after taking police aid (after moving an application under Order XXI Rule 32 CPC read with Section 151 CPC). The plaintiffs submit that due to passage of time and continued usage, the bhatti (furnace) had suffered substantial wear and tear and was in a dilapidated, ramshackle condition. Repairs were therefore imperative. Apart from the wear and tear of the said bhatti, refurbishments need to be made in the wooden flooring and machan as well. The plaintiffs submit that when they tried to undertake the repair and renovation of the said bhatti, machan and wooden flooring, the defendants again reverted to their old obstructionist attitude. The plaintiffs submit that bhatti was of fundamental import for running a bakery business and the defendants had absolutely no right to interfere in the renovation and repair of the same as it had been in existence since the very inception of tenancy. The plaintiffs were not making any structural change in the suit property and were only repairing an already Suit No. 594633/16 Gulsher Vs. Mohd. Yusuf 5/17 existing structure. Therefore, the defendants' interference and objections were totally uncalled for.
3. Summons for settlement of issues was sent to the defendants arrayed herein.
4. A joint written statement was filed on their behalf on 02. 02. 2008. In the written statement filed by the defendants, several preliminary objections have been taken against the present suit of the plaintiffs. It is stated that the present suit was not maintainable in light of the judgment passed by Hon'ble Supreme Court of India in the matter captioned "M.C. Mehta v. Union of India", whereby all polluting trades and hazardous workshops were to be removed from the city and relocated on the outskirts of the city. It is also contended on behalf of the defendants herein that the present suit was barred under Section 41 (h) of the Specific Relief Act. It is stated that since the monthly rental was only Rs. 100/, the Delhi Rent Control Act (hereinafter referred to as "DRC Act") would be applicable and the jurisdiction of civil courts was ousted. The proper forum for adjudication was the Court of the Additional Rent Controller. On merits too, the suit of the plaintiff has been lambasted. It is stated by the defendants that the license for running bakery and confectionary business was renewed by the MCD in the beginning of 2007. However, subsequent to the said renewal, the Hon'ble Supreme Court of India passed the judgment in the case "M.C. Mehta v. Union of India" in August, 2007. The defendants further submit that the plaintiffs be put to strict proof to prove the license for running the baking business from the suit property. The defendants further deny that the bhatti had undergone substantial wear and tear and that it needed repair. The defendants allege that in the guise of repairing and refurbishing the bhatti, Suit No. 594633/16 Gulsher Vs. Mohd. Yusuf 6/17 the plaintiffs were trying to make structural changes in the suit property and that the same was impermissible. The defendants further deny that the wooden flooring of the suit property also needed repair and renovation. It is stated by the defendants that the present suit had been filed by the plaintiffs without any legally sustainable and pressing cause of action.
4. The replication filed by the plaintiffs is the old story in the plaint retold. The averments in the plaint have been reiterated and reaffirmed by the plaintiffs and therefore, the same are not being reproduced here for the sake of brevity. The plaintiffs have refuted the allegation of the defendants that the suit was barred under Section 41 (h) of the Specific Relief Act (hereinafter referred to as "SRA") and that the subject matter in dispute was governed by the Delhi Rent Control Act. It is further denied that the Ld. ARC had the jurisdiction to entertain the present suit and not the civil court. The plaintiffs have further assailed the contention of the defendants that bakery business could not be run by the plaintiffs in the suit property as the same was contrary to the judicial pronouncement made by the Apex Court in the landmark case of "M.C. Mehta v. Union of India". The plaintiffs further deny that baking business fell within the category of hazardous industries which were to be relocated to the outskirts of the city and the periphery. The plaintiffs have categorically and specifically refuted the charge leveled against them that in the guise of refurbishing and renovating the bhatti, they were actually trying to make structural alterations in the suit property.
ISSUES FRAMED
Suit No. 594633/16 Gulsher Vs. Mohd. Yusuf 7/17
5. Once the pleading were complete, the following issues were framed vide order dated 30.01.2012:
a) Whether the suit of the plaintiff is barred under the provision of Section 41 (h) of the Specific Relief Act? (OPD)
b) Whether the plaintiff is entitled to the decree for permanent injunction as prayed for in the plaint? (OPP)
c) Relief EVIDENCE LED BY THE PARTIES
6. Once the issues were framed, the matter was posted for plaintiff evidence (PE). The plaintiff no.1 has himself stepped into the witness box as the sole plaintiff witness to substantiate the case put forth by him. His affidavit of evidence is marked Exhibit PW1/A. The contents of the affidavit are not being reproduced here as the same were in conformity and on totally similar lines as the plaint. The plaintiff has relied upon the following documents to substantiate and corroborate the version stated in the affidavit of evidence as well as in the plaint:
a) Photocopy of interim and final orders passed the previous suits between the plaintiffs and the defendants along with the copy of orders passed by the Hon'ble High Court of Delhi in the Contempt Petition filed against the present defendants marked as Exhibit PW1/1 (colly) (after the certified copies of the said orders were produced in court and duly compared with the copies filed in the court);
b) Copy of MCD License marked Exhibit PW1/2 (OSR) Suit No. 594633/16 Gulsher Vs. Mohd. Yusuf 8/17
c) Copy of license issued by the police authorities marked as Exhibit PW1/3 (OSR)
7. In the cross examination, the plaintiff denied the suggestion put to him by the defendants' counsel that in the area where the suit property was situated, the operation of a bhatti for carrying out bakery business was prohibited. He further denied the suggestion put to him that the license issued by the MCD marked Exhibit PW1/2 pertains only to the trade of bakery items and didn't permit the manufacturing of baked products. He conceded that he didn't possess any license from the Delhi Pollution Control Board. He further conceded that wood and charcoal were being used to operate the bhatti. Basically, the plaintiff witness stuck to the version given originally in the plaint. Thereafter, the PE was closed at the instance of the plaintiff no.1 on 29.08.2016.
8. The matter was thereafter posted for Defendants' evidence (DE). The defendant no.1 similarly stepped into the witness box to depose and substantiate the case mentioned in the written statement filed on his behalf. The affidavit of evidence is marked Exhibit DW1/A. The contents of the affidavit are not being reproduced here as the same were in conformity and on totally similar lines as the written statement.
9. In his cross examination, the DW1 conceded that the plaintiffs have been tenants in the suit property since long and he further conceded that they had been carrying on baking business since the inception of the tenancy. He conceded that there was a bhatti and chimney in the suit property and that when repair of the chimney was needed the same was undertaken with the aid Suit No. 594633/16 Gulsher Vs. Mohd. Yusuf 9/17 of judicial orders to this effect. He conceded that he had no written document from the municipal authorities which could have substantiated the allegation leveled by him against the plaintiffs' bakery that no manufacturing of bakery items was permissible under the License issued. He had no document in support of his contention that manufacturing of bakery items was not permissible in the tenanted portion of the suit property. He denied the suggestion put forth to him by the plaintiffs' counsel that the defendants were deliberately obstructing and hindering the repair and refurbishment of the bhatti, so as to subtly coerce the plaintiffs to vacate the sut property, as the dilapidated bhatti if not repaired on time would make it impossible for the plaintiffs to carry on the baking business.
10. The DE was closed vide separate statement of the defendant witness on 21.01.2017 and the matter was thereafter posted for final arguments.
11. I have heard the rival oral submissions made by the counsel for the litigating parties at length and perused the case record in entirety. I shall now delve into the merits of the case and give my issue wise findings after appraising the evidence adduced by the respective parties.
APPRAISAL OF EVIDENCE ADDUCED AND ISSUE WISE FINDINGS
1. Findings on the issue "Whether the suit of the plaintiff is barred under the provision of Section 41 (h) of the Specific Relief Act? (OPD)"
1.1. The burden of proving the said issue was on the defendants.
Section 41(h) SRA prohibits the grant of the relief of permanent injunction Suit No. 594633/16 Gulsher Vs. Mohd. Yusuf 10/17 in case the plaintiff has an equally efficacious remedy available in his repository of remedies. The purpose of this bar/ proscription is to avoid multiplicity of proceedings. The section refers to equally efficacious remedy. Therefore, the plaintiff cannot seek a relief of permanent injunction in a civil court if the same relief can be granted by the special court or tribunal meant to adjudicate a certain category or class of disputes. If the special court or tribunal can be shown to be duly empowered to grant the relief as claimed by the plaintiff, then the relief of permanent injunction cannot be granted by the civil court. 1.2. In the instant case, the defendants have placed reliance on the bar of Section 50 DRC Act and stated that only the Court of ARC could have entertained and adjudicated upon the dispute which is the subject matter of controvery in the present suit. They submit that the permanent injunction as sought by the defendants could only have been granted by the Ld. ARC and not the civil court. Plaintiffs have refuted the said submission stating that the matter in dispute here was beyond the ken of matters covered by the DRC Act and it was the civil court which could rightfully adjudicate upon the present matter. I find merit in the contention of the plaintiffs. It is settled law that a court of ARC cannot pass a decree for permanent injunction of the nature as sought in the present dispute. Further, the defendants had themselves instituted a suit for permanent injunction in the year 1993 against the present plaintiffs (suit in the court of Shri Mahavir SInghal, Civil Judge, Delhi). Even then the monthly rental was Rs.100/. At that time the defendants had chosen to institute a suit in the civil court. Therefore, they are stopped from raising this objection as Suit No. 594633/16 Gulsher Vs. Mohd. Yusuf 11/17 to bar of jurisdiction of the Civil Courts at this belated stage. This appears to be a sham defence taken by the defendants to obfuscate the matter in dispute and deviously oust the jurisdiction of the civil courts. The defendants have also failed to cite any case law in support of their contention that the civil court's jurisdiction was barred in cases of like nature as is being adjudicated by this court. Till the time cogent evidence was led by the defendants substantiating their claim that the civil court had no inherent jurisdiction to try the present suit, this court shall be presumed to have the necessary jurisdiction to adjudicate upon the matter in controversy.
1.3. As the said burden has not been discharged by the defendants and because they have abysmally failed to prove their defence of ouster of civil court's jurisdiction, this issue is decided against the defendants and in favour of the plaintiffs. The suit is not hit by the bar of Section 41 (h) SRA.
2. Findings on the Issue "Whether the plaintiff is entitled to the decree for permanent injunction as prayed for in the plaint? (OPP)"
2.1. The burden of proving the said issue was on the plaintiffs. In order to prove the said issue to the satisfaction of this court, the plaintiffs ought to have made out a prima facie case in their favour coupled with the proof that balance of convenience was tilted in their favour and irremediable loss shall ensue to them if the relief as sought is not granted to them. The relief of permanent injunction can be granted when there is an invasion of the plaintiff's right to property or its enjoyment. Where a plaintiff establishes his right which has been Suit No. 594633/16 Gulsher Vs. Mohd. Yusuf 12/17 infringed and that further infringement is threatened to a material extent, he is entitled to an injunction to restrain the threatened infringement. An injunction may be granted to restrain the commission of an apprehended or threatened act, on the ground that if the act is done it will violate the plaintiff's legal rights, if he can show a strong probability that the apprehended mischief will in fact arise. He must aver and prove that what is going on is calculated to infringe his right. Injunctions may be granted where the value of the property itself or the very existence of the person entitled to it or having its possession, is threatened. In the instant case, it is submitted by the plaintiffs that they had been carrying on the business of baking and confectionary since the very inception of tenancy and this fact has been admitted by the defendants also. The plaintiffs aver that they had the necessary sanction and permission from the Municipal and Police Authorities to carry on business/ trade of baking in the suit premises. Defendants submit that the license only permitted the plaintiffs to sell/ peddle in baked products and didn't authorize the plaintiffs to bake and manufacture baked products in the suit property. Counsel for the defendants submits that the MCD License and the license of the police authorities only permitted trade of bakery items and not its manufacture. It appears that the bone of contention between the litigating parties arises from the variegated and divergent manner in which the litigating parties are construing the licenses in question. Defendants' have construed the permission in the license in a very strict and pedantic manner, according to which the plaintiffs couldn't have baked the items at the suit premises. The plaintiffs however construe the permit issued by the MCD as well as the police authorities as permitting them to bake Suit No. 594633/16 Gulsher Vs. Mohd. Yusuf 13/17 products in the suit property and thereafter sell the same from the suit premises. I find considerable substance in the interpretation given and relied upon by the plaintiffs. Courts while interpreting any statute or contract or license etc has to read the document in entirety and give a purposive interpretation to it. In the instant case, if we were to rely upon the narrow interpretation given by the defendants, then the very business of the plaintiffs would come to a grinding halt. Even the meaning of the term "bakery" as found in different law lexicons shows that bakery is a place/ establishment that produces and sells flour based food baked in an oven, such as breads, cookies, cakes, pastries and pies. Thus, it is very apparent that bakery necessarily involves the process of manufacturing/ making/ baking flour based products. Once a license for trade in bakery items and confectionary is granted to the plaintiffs, then by necessary implication, the plaintiffs become entitled to manufacture items in the suit property. Further, the defendants have long acquiesced to the manufacture and processing of baked items as since the very inception of tenancy the plaintiffs had been carrying out baking business. Thus, the defendants couldn't take up this objection at such a belated stage.
2.2 Having once arrived at the conclusion that plaintiffs were well within their legally conferred right to manufacture baking items in the suit property, it can be reasonably deduced that if the plaintiffs are not given liberty to refurbish and renovate and repair the ramshackle bhatti which is an indispensable apparatus/ installation for any baker, the business of the plaintiffs shall suffer greatly and the said losses shall be irremediable monetarily as the very source of sustenance for the plaintiffs would come to a grinding halt. If the bhatti and Suit No. 594633/16 Gulsher Vs. Mohd. Yusuf 14/17 machan are not renovated and repaired, the business of the plaintiffs shall suffer snd they shall not be able to enjoy the suit property effectively and to their full satisfaction and contentment. Even otherwise, I am of the considered opinion that renovation and repair of the bhatti shall only secure further the suit property and make it safe and immune from incidents of fire break out etc. Infact, the renovation of the bhatti shall have long standing beneficial effects for the defendants too, who are indisputably the owners of the suit property. 2.3 Now coming to the apprehension of the plaintiffs that till the time permanent injunction order is not passed against the defendants, they shall continue to obstruct the renovation and repair of the bhatti and macha, I am again of the considered view that the apprehension of the plaintiffs is well founded. I say so because of the chequered litigative history between the plaintiffs and the defendants and the past conduct of the defendants in obstructing in the installation of chimney in the suit property despite specific judicial order to this effect. Considering the past contumacious and recalcitrant attitude of the defendants, it can be presumed safely that the plaintiffs had a lingering apprehension about the defendants conduct and intent. Their apprehensions appear to be legitimate considering the past conduct of the defendants. In order to avoid any further obstruction by the defendants, I deem it fit to pass an order of permanent injunction thereby restraining the defendants and their agents from interfering in the repair and installation of the bhatti (furnace) and other repair works in the suit property.
2.4 Accordingly, this issue is decided in favour of the plaintiffs and against the defendants.
Suit No. 594633/16 Gulsher Vs. Mohd. Yusuf 15/17
12. Before concluding I would also like to state that the defendants have failed to adduce any evidence to substantiate their claim that the bakery business fell within the ambit of hazardous industries which were to be relocated to the peripheral areas of Delhi pursuant to the order of the Hon' ble Supreme Court of India in the case titled "MC Mehta v. Union of India". A bald averment to this effect would not suffice to establish that baking industry was also a hazardous one calling for the relocation of all bakeries outside the city of Delhi. Also, I find no substance in the allegation leveled by the defendants that in the guise of undertaking repair work in the suit property, the plaintiffs had an oblique intent of carrying out substantial structural changes in the suit property. The said aspersion cast on the plaintiffs is bereft of any substance and credibility in the absence of cogent proof to this effect.
13. As a logical sequel to the discussion herein above, I am of the considered view that the plaintiffs are entitled to the relief as claimed in the suit. The suit of the plaintiff is hereby decreed. Costs of the suit are also being awarded to the plaintiffs as the defendants ought not to have obstructed the renovation of the bhatti and machan in the very first place considering the verdicts given in the earlier suit where the right of the plaintiffs to install chimneys had been recognized and secured by successive court i.e. both trial court as well as Appellate court.
14. Decrees sheet be prepared according to the amended memo of parties filed (as a defendant and a plaintiff had also died during the pendency of the present litigation and their respective LRs had been arrayed as a party herein.
Suit No. 594633/16 Gulsher Vs. Mohd. Yusuf 16/17
15. All interim/ miscellaneous applications if not already adjudicated upon by this Court, shall be deemed to be dismissed as non pressed/ non prosecuted.
16. File be consigned to the record room after due compliance with the necessary formalities.
Announced in the open court HARSHITA VATSAYAN
On 23.03.2017 Civil Judge-06 (Central)
This Judgment comprises of 17 pages and each page has been signed.
Suit No. 594633/16 Gulsher Vs. Mohd. Yusuf 17/17