Delhi District Court
Jagroshni Devi vs Krishan Kumar on 27 May, 2024
THE COURT OF MS NEHA PALIWAL SHARMA
DISTRICT JUDGE-03, CENTRAL DISTRICT,
TIS HAZARI COURTS, NEW DELHI
CNR No. DLCT01-013970-2018
CS DJ No. 6472/2018
In the matter of :-
Smt. Jagroshni Devi
W/o Late Sh. Rajmal Sharma
R/o 24, Mohan Park, Naveen Shahdara,
Delhi-110032
.....Plaintiffs
VERSUS
Krishan Kumar
S/o Sh. Dhara Singh
Shop no.8, Property no. 4/12,
Gurwalan Ki Dharamshala,
Angoori Bagh Market,
Behind Red Fort, Jama Masjid,
Delhi-110006
.....Defendant
Date of institution : 23.10.2018
Reserved for Judgment : 20.05.2024
Date of decision : 27.05.2024
SUIT FOR MANDATORY INJUNCTION AND RECOVERY OF
ARREARS FOR USE AND OCCUPATION CHARGES
JUDGMENT
(1) This is a suit for mandatory injunction and recovery of arrears for use and occupation charges, filed by the plaintiff Smt. Jagroshni Devi against the CS DJ 6472/2018 Page No. 1/ 36 defendant Sh. Krishan Kumar.
(2) Succinctly put, the case of the plaintiff, as per the plaint, is that her husband late Sh. Rajmal Sharma was the tenant of shop no. 8, property no. 4/12, Gurwalon Ki Dharamshala, Angoori Bagh Market, behind Red Fort, Jamuna Bazar, Delhi-110006 (hereinafter referred to as the suit property). He, in partnership with the defendant, started a chemist shop in the suit property post executing a partnership deed dated 14.01.2003. In that partnership deed, mother of the defendant namely Smt. Ramwati was also a party/ partner. The said partnership was for a period of two years, that is, from 14.01.2003 to 14.01.2005. Thereafter another partnership deed was executed between late Sh. Rajmal Sharma and the defendant for a period of two years and again on 01.05.2007 another partnership deed was executed between late husband of the plaintiff and the defendant for a limited period of two years, effective from 01.05.2007 to 30.04.2009.
(3) It is further the case of the plaintiff that on 31.12.2007 her husband expired and the suit property devolved upon her being his wife, after which a partnership deed dated 11.05.2009 was executed between the plaintiff and the defendant for a period of two years, effective from 11.05.2009 to 30.04.2011. The said partnership expired on 30.04.2011 after which the defendant was required to leave the suit property and remove himself from the same as he was left with no right, title or interest in the suit property. However, the defendant instead of doing so, failed to remove himself from the suit property and is in illegal occupation of the same since then and is running business from the suit property illegally, unauthorizedly, malafidely and without any capacity or locus. The plaintiff is suffering from financial loss as if the suit CS DJ 6472/2018 Page No. 2/ 36 property is let-out it will fetch Rs.20,000/- per month as user and occupation charges. It is her case that the defendant is liable to pay the user and occupation charges to her at the said rate for the last three years which comes to Rs.7,20,000/- and is liable to pay user and occupation charges at the same rate from the date of filing the present suit till vacation of the property by the defendant.
(4) It is further the case of the plaintiff that the defendant in order to create pressure upon her, had filed a suit for permanent injunction against her daughter and son-in-law, which is pending before the Court of Ld. Civil Judge (Central), Delhi. It is further her case that the defendant may create third party interest qua the suit property or may part with possession of the same.
(5) It is, thus, prayed that a decree of mandatory injunction be passed in favour of the plaintiff and against the defendant thereby directing the defendant to remove himself from the suit property, that is, shop no. 8, property no. 4/12, Gurwalon Ki Dharamshala, Angoori Bagh Market, behind Red Fort, Jamuna Bazar, Delhi-110006; decree for recovery of money be also passed in favour of the plaintiff and against the defendant thereby directing the defendant to pay a sum of Rs.7,20,000/- as arrears of rent with further directions to the defendant to continue to pay the rent at the same rate from the date of filing the present suit till disposal and a decree of permanent injunction be also passed in favour of the plaintiff and against the defendant thereby restraining the defendant, his agents, associates, employees or any other person claiming under him from creating any third party interest by way of sale, gift, mortgage, charge or in any other manner or parting with possession of the suit property.
CS DJ 6472/2018 Page No. 3/ 36(6) Summons for settlement of issues was sent to the defendant pursuant to which written statement was filed on behalf of the defendant. Preliminary objections were taken by the defendant that the present suit filed by the plaintiff is a sheer abuse of process of law and the plaintiff is guilty of suppression of material facts. It is the case of the defendant that he started a chemist shop by the name of Om Medicos in the suit property in partnership with his mother namely Smt. Ram Wati and husband of the plaintiff namely Sh. Rajmal Sharma, which was for a period of two years, that is, from 14.01.2003 to 14.01.2005, however, on 27.01.2005 his mother withdrew herself from the partnership as a result of which another partnership deed was executed on 27.01.2005 between him and Sh. Rajmal Sharma which was made effective from 15.01.2005 to 14.01.2007. Thereafter on 01.05.2007 another partnership deed was executed between the defendant and Sh. Rajmal Sharma which was valid from 01.05.2007 to 30.04.2009. The husband of the plaintiff namely Sh. Rajmal Sharma had all along been a sleeping partner. He died on 31.12.2007 and thereafter another partnership deed was executed on 11.05.2009 between the defendant and the plaintiff (wife/ widow of late Sh. Rajmal Sharma) for a period of two years, that is, 01.05.2009 to 30.04.2022 and the plaintiff was also a sleeping partner in that partnership.
(7) It is further the case of the defendant that since the inception of tenancy, the drug license was issued in the name of M/s. Om medicos by the Drug Control Department, Govt. of NCT of Delhi and the defendant alone had got completed all the requisite formalities with the concerned department for obtaining the said license and also paid the necessary charges for its renewal from time to time.
CS DJ 6472/2018 Page No. 4/ 36(8) It is further the case of the defendant that the suit property was sealed by North Delhi Municipal Corporation on 04.02.2011 on the ground of misuse and unauthorized construction and in that scenario the sleeping partner, that is, plaintiff gave up all her rights/ claims in the suit shop and since 04.02.2011 the defendant alone was managing the affairs of M/s. Om Medicos in his individual capacity as a proprietor thereof. The defendant along with other shopkeepers approached the landlord/ owner of the shops namely Sh. Vishnu Bhagwan Gur Wala, who admitted and recognized the defendant as a tenant in the suit property and assured to provide all necessary assistance in that regard with the condition that the defendant will have to bear all the legal and miscellaneous expenses for getting the property de- sealed, which will be adjusted in lieu of rent. In this background, the defendant made various representations to the concerned authorities for de- sealing the shop in question and had also deposited the conversion charges and penalty with the MCD as demanded by the said authority but despite the same, the MCD did not de-seal the shop in question. The defendant thereafter filed an appeal under Section 347-B of Delhi Municipal Corporation Act before the Ld. Appellate Tribunal MCD on 18.11.2013 for de-sealing the shop in question vide Appeal No. 993/2013 titled as 'Krishan Kumar vs. North Delhi Municipal Corporation' wherein the defendant contended that he was tenant in the shop in question which had been sealed by the MCD without issuing any notice. In the said appeal, notice was issued to the MCD and the Monitoring Committee filed its status report. On 08.07.2014 the Ld. Appellate Tribunal, MCD directed the trustee of Gurwalon Ki Dharamshala to appear and show the papers of allotment of land and inform in what capacity the appellant/ defendant was occupying the property. On 23.02.2015 CS DJ 6472/2018 Page No. 5/ 36 and 28.07.2015 Sh. Vishnu Narain, trustee of Gurwalon Ki Dharamshala appeared before the Court and placed on record plethora of documents to substantiate and corroborate his ownership rights over the shop in question and also supported/ admitted the tenancy rights of the appellant/ defendant with regard to shop in question. Thereafter, vide order dated 13.01.2016, the Ld. Appellate Tribunal, MCD allowed the appeal filed by the defendant thereby directing the MCD to de-seal the shop in question. The NDMC even filed a Writ Petition against the de-sealing order before the Hon'ble High Court of Delhi. However, the said order was not stayed by the Hon'ble High Court of Delhi and thereafter the defendant along with other shopkeepers started doing their previous businesses from their respective shops since February 2017.
(9) It is further the case of the defendant that he had to run from pillar to post to set-up his business in the usual manner as the shop was lying locked for more than six years. He deposited all the requisite charges with the MCD and managed all the things and incurred huge expenses. His business got momentum with effect from February 2018. However, in the first week of April, 2018 the daughter of the plaintiff came to the suit property and started asserting her ownership rights over the same. The defendant told the daughter of the plaintiff that her mother had already given up her rights in the said property since 04.02.2011 when the shop in question was sealed by the MCD and therefore, she cannot assert her rights over the property in question. However, she in collusion and connivance with some anti social elements tried to forcibly dispossess the defendant from the suit property and therefore, he filed a Civil Suit bearing CS No. 2253/2018 titled Krishan Kumar vs. CS DJ 6472/2018 Page No. 6/ 36 Madhuri Sharma seeking the relief of permanent injunction which is pending before the Ld. Civil Judge (Central), Delhi. Even a complaint was lodged by the daughter of plaintiff before the Drug Licensing Authority alleging that the defendant was selling spurious drugs from the shop in question. The plaintiff had not approached the Court with clean hands and had concealed material facts from this Court.
(10) It is further the case of the defendant that the present suit is liable to be stayed under the provisions of Section 10 CPC as the matter in issue is also directly and substantially in issue between the same parties in the above civil suit filed by the defendant wherein the relief of permanent injunction has been prayed for. It is also liable to be dismissed under Order VII Rule 11 CPC, as there is no cause of action in favour of the plaintiff and against the defendant; as the partnership deed relied upon by the plaintiff is not registered with the Registrar of Firms and is barred under Section 69 of Indian Partnership Act; under the provisions of Order I Rule 9 CPC on the ground of non-joinder of necessary party as Sh. Vishnu Bhagwan Gurwala, owner of Gurwalon Ki Dharamshal, that is, owner of the suit property had not been impleaded as a party in the present suit. Further, the suit is not properly valued for purposes of court fees and jurisdiction as by way of the present matter the plaintiff is seeking the relief of possession and therefore the plaint has to be valued on the market value of the suit property which is not less than Rs.10 lacs. The suit of the plaintiff is also barred by law of limitation. It is further liable to be dismissed on account of the fact that the plaintiff ought to have sought the relief of declaration and possession since admittedly she is not in possession of the suit property and her title over the suit property is seriously disputed CS DJ 6472/2018 Page No. 7/ 36 and a cloud is raised over her title.
(11) In his reply on merits, the defendant had specifically denied each and every contention of the plaintiff. He admitted that late Sh. Rajmal Sharma was the tenant in the suit property. It is the case of the defendant that he started a chemist shop in the suit property and Sh. Rajmal Sharma was only a sleeping partner. He had admitted the execution of partnership deeds dated 14.01.2003, 27.01.2005, 01.05.2007 and 11.05.2009. It is, however, his case that during the intervening period on 04.02.2011 the suit property was sealed by the MCD and since then the plaintiff got no concern with the suit property and had no right, title or interest in the suit property. It is, thus prayed, the suit of the plaintiff be dismissed.
(12) Replication was filed by the plaintiff to the written statement of the defendant wherein the plaintiff had reiterated her stand as stated in the plaint and denied the contention of the defendant as stated in the written statement. It is the case of the plaintiff that Section 69 of the Indian Partnership Act does not apply to the present case. The defendant is drawing his title from the plaintiff and hence, the defendant is estopped from raising this issue and the question of non-joinder does not arise. No cloud has been raised over the title of the plaintiff. It is, thus, prayed that the suit of the plaintiff be decreed.
(13) An application under Order XII Rule 6 CPC was filed by the plaintiff, which was dismissed by the Ld. Predecessor of this Court vide order dated 06.11.2020.
(14) An application under Order VII Rule 11 CPC read with Section 69 of Indian Partnership Act was filed on behalf of the defendant before the Court.
CS DJ 6472/2018 Page No. 8/ 36The said application was disposed off vide order dated 02.08.2022 wherein it was held that the suit has been properly valued for the relief of recovery of Rs.7,00,000/- and injunction and that the provisions of Section 69 of Indian Partnership Act does not apply as the registration of firm is not mandatory if the issue involved pertains to dissolution of a firm or for accounts of the firm.
(15) After perusal of the pleadings of both the parties, following issues were framed on 14.12.2022 by the learned Predecessor of this Court for trial, namely:-
1. Whether the plaintiff is entitled to a decree of recovery of money against the defendant as prayed for in prayer clause (b) of the plaint? OPP
2. Whether the plaintiff is entitled to a decree of mandatory injunction against the defendant thereby directing the defendant to remove himself from the suit premises, namely, Shop bearing No.8, property no. 4/12, Gurwalon Ki Dharamshala, Angoori Bagh, Market Behind Red Fort, Jamuna Bazar, Delhi-110006? OPP
3. Whether the plaintiff is entitled to a decree of permanent injunction against the defendant thereby restraining the defendant, their agents etc. from creating any third party interest by way of sale, gift, mortgage, charge or in any manner or parting with possession of the above-mentioned suit premises? OPP
4. Whether the present suit is liable to be dismissed on the ground of suppressio vari and suggestio falsi? OPD
5. Whether the suit of the plaintiff is without any cause of action? OPD
6. Whether the suit of the plaintiff is barred under Section 69 of Indian Partnership Act? OPD CS DJ 6472/2018 Page No. 9/ 36
7. Whether the suit of the plaintiff is liable to be dismissed under Order I Rule 9 CPC and is bad for non-joinder of necessary party? OPD
8. Whether the present suit is not properly valued for the purpose of court fees and jurisdiction? OPD
9. Whether the suit of the plaintiff is barred by limitation? OPD
10.Relief.
(16) At the stage of plaintiff's evidence, the plaintiff had examined two witnesses. The plaintiff Jagroshni Devi @ Jagroshni Sharma examined herself as PW1. PW-1 had tendered her evidence by way of affidavit, Ex.PW1/A and had reiterated the contents of the plaint in her affidavit. She had relied upon the following documents in her evidence by way of affidavit:
1. Copy of Partnership Deed dated 14.01.2003, Mark A.
2. Copy of Partnership Deed dated 15.01.2005, Mark B.
3. Copy of Partnership Deed dated 01.05.2007, Mark C.
4. Copy of Partnership Deed dated 11.05.2009, Mark D.
5. Copy of the suit pending before the Ld. Civil Judge (Central), Mark E. (17) PW1 was cross examined by Ld. Counsel for the defendant at length.
She in her cross-examination had deposed that the suit property was owned by her husband and thereafter admitted that the suit property belonged to Gur Walon Ki Dharamshala and not to her husband. She admitted that before 2003 her late husband was running a tea shop in the suit property and that her husband was not keeping well therefore, the tea shop was closed. She had deposed that her husband was having no knowledge of running a medical shop. She further admitted that the pharmacy license was in the name of the CS DJ 6472/2018 Page No. 10/ 36 defendant. She further deposed that the business of selling of medicines in the shop was being looked after by the defendant and royalty money, as per the rent agreement, used to be paid to them by the defendant regularly.
(18) PW1 further admitted in her cross-examination that the suit property was sealed by the MCD. She also admitted that the defendant had asked her that for getting the property de-sealed, money need to be spent and that she had not given any money to the defendant for getting the property de-sealed. She had voluntarily stated that the shop was sealed by the MCD because defendant caused damages to the suit property and therefore, the question of paying any amount to the defendant for getting the property de-sealed does not arise. PW1 further admitted that the suit property was de-sealed by the order of Ld. Appellate Tribunal MCD, Tis Hazari Courts, Delhi. She admitted that she had not filed any case or application for de-sealing the property but stated that oral requests were made by her to the MCD officials for getting the property de-sealed.
(19) PW1 further deposed that when the defendant approached her to spend money for getting the suit property de-sealed, she replied that shops of all the persons were sealed and there was no point in spending money at that stage. She further deposed that her daughter used to visit the suit property regularly. The defendant had informed her that conversion charges and penalty charges have to be deposited and stated to her that he will not pay rent for that month and will deposit the rent with the MCD and the same will be counted towards penalty and conversion charges. She admitted that she had not mentioned about the sealing or de-sealing of the shop in question in her plaint. She had not received Rs.10,000/- per month from the defendant after sealing of the CS DJ 6472/2018 Page No. 11/ 36 property. She had admitted that she had not served any notice upon the defendant.
(20) PW2 Sh. Vikram, JJA from Record Room (Civil), Tis Hazari Courts, Delhi had produced the summoned record pertaining to case bearing suit no. SCJ 2253/18 titled as 'Krishan Kumar vs. Madhvi Sharma' decided on 23.08.2019. Certified copies of the plaint along with documents, filed by the defendant in the above case, are Ex.PW2/1 (colly).
(21) Vide separate statement of Ld. Counsel of the plaintiff, the plaintiff's evidence was closed on 02.09.2023 and the matter was fixed for defendant's evidence.
(22) At the stage of defendant's evidence, the defendant had examined six witnesses. The defendant Krishan Kumar had examined himself as DW-1. DW-1 had tendered his evidence by way of affidavit Ex.DW1/A and had reiterated the contents of the written statement in his affidavit. He had relied upon the following documents in his evidence by way of affidavit:
1. Original partnership deed dated 14.01.2003, Ex.DW1/1.
2. Original partnership deed dated 27.01.2005, Ex.DW1/2.
3. Original partnership deed dated 01.05.2007, Ex.DW1/3.
4. Original partnership deed dated 11.05.2009, Ex.DW1/4.
5. Original renewal of drug license in favour of the defendant, Ex.DW1/5.
6. Original MCD receipt dated 04.02.2011, Ex.DW1/6.
7. Original MCD receipt dated 22.06.2011, Ex.DW1/7.
8. Original MCD receipt dated 02.06.2011, Ex.DW1/8.CS DJ 6472/2018 Page No. 12/ 36
9. Original complaint to Executive Engineer dated 28.09.2011, Ex.DW1/9.
10.Original complaint to OSD LG Delhi dated 05.01.2012, Ex.DW1/10.
11.Original complaint to the Commissioner, MCD dated 18.09.2011, Ex.DW1/11.
12.Original complaint to the SHO PS Chandni Chowk dated
24.07.2018, Ex.DW1/12.
13.Certified copy of plaint in CS No. 2253/2018, Ex.DW1/13.
14.Copy of Appeal No. 993/2013, Mark A.
15.Copy of orders in Appeal 993/2013, Mark B (colly).
16.Copy of status report of MCD and monitoring committee filed in appeal no. 993/2013, Mark C.
17.Copy of judgment dated 13.01.2016 in appeal no. 993/2013, Mark D.
18.Copy of WP(C) 3365/16, Mark E.
19.Copy of death certificate of Sh. Rajmal Sharma, Mark F.
20.Five photographs of the shop, Mark G.
21.Site plan of the shop, Mark H. (23) DW1 was cross-examined at length by the Ld. Counsel for the plaintiff. He deposed in his cross-examination that Om Medicos was started for the first time in the year 2003 and prior to the same, the husband of the plaintiff used to run a tea shop in the suit property. He used to make monthly payment to late Sh. Rajmal Sharma. The husband of the plaintiff was not actually involved in running the chemist shop and was a sleeping partner and the CS DJ 6472/2018 Page No. 13/ 36 monthly payment used to be paid by him was not at all dependent upon the income earned from the chemist shop. No other document was prepared in the year 2003, when he entered into partnership deed with late Sh. Rajmal Sharma. He had made payment of the amount stated in the partnership deed to late Rajmal Sharma and after his death to his wife, that is, plaintiff Jagroshni Devi. He made the payment to the plaintiff till prior to the date of sealing of the shop on 10.01.2011. No document was executed between him and the plaintiff for transferring the tenancy rights of the plaintiff in the suit property in his favour. He had not made any payment to the plaintiff for transfer of tenancy rights in his favour. He had not mentioned the fact that the plaintiff had transferred her tenancy rights in his favour in his communication with MCD or in the cases filed by him against MCD. He had not written any letter to the owner of property, that is, Gurwalon Ki Dharamshala that the plaintiff had transferred her tenancy rights in his favour. He had not placed on record any document to show that Gurwalon Ki Dharamshala had accepted him as a tenant in the suit property or that he had made any periodical payment to the owner of the suit property. He had not filed any document on record to show what expenses were incurred by him and when he had incurred the same in the litigation against the MCD.
(24) DW2 Sh. Virender Kumar Sahu was a summoned witness from Writ Branch, Hon'ble High Court of Delhi who had brought the record pertaining to Writ Petition (Civil) No. 3365/2016. Certified copies of the above writ petition and order dated 18.12.2019 are Ex.DW2/1.
(25) DW3 HC Lalit Kumar was also a summoned witness from PS Kotwali who had deposed that the entire record of the complaints upto the year 2018 CS DJ 6472/2018 Page No. 14/ 36 had been destroyed. The forwarding letter from the SHO is Ex.DW3/1 and the relevant order is Ex.DW3/2.
(26) DW4 Sh. Rahul Kumar was a summoned witness from MCD Appellate Tribunal, Tis Hazari Courts, Delhi who had brought certified copies of appeal no. 9993/2013 and orders dated 18.11.2013, 24.03.2014, 30.09.2014, 09.12.2014, 23.02.2015, 05.05.2015, 28.07.2015, 19.10.2015, 01.12.2015, 23.12.2015, 13.01.2016 and judgment dated 13.01.2016 therein, which are Ex.DW4/1 (colly).
(27) DW5 Sh. Dinesh Kumar was a summoned witness from Record Room (Civil), Tis Hazari Courts, Delhi who had brought original record in file bearing CS No. 2253/2018 titled as 'Krishan Kumar vs. Madhuri Sharma' decided on 23.08.2019. The certified copies of the plaint, affidavit, order dated 31.08.2018, order and statement dated 23.08.2019 are already Ex.DW1/13 (colly).
(28) DW6 Sh. B.K. Pandey was also a summoned witness from the Office of Executive Engineer, Building Department, City Sadar Paharganj Zone, Kashmere Gate, Delhi who was summoned to produce the record pertaining to status report dated 21.03.2014 and report of Monitoring Committee dated 12.06.2014. He had deposed that the original record is not available in their office as the office of Building Department was shifted from one place to another on account of delimitation of ward of SP Zone and City Zone in the year 2017. The copy of letter dated 05.12.2023 is Ex.DW6/1.
(29) Vide statement of the defendant, the defendant's evidence was closed on 20.01.2024 and the matter was fixed for final arguments.
CS DJ 6472/2018 Page No. 15/ 36(30) Final arguments heard as advanced by Ld. Counsel for both the parties and the material available on record perused.
(31) Issue wise findings are as follows:-
Issue No.4:
Whether the present suit is liable to be dismissed on the ground of suppressio vari (suppression of truth) and suggestio falsi (suggestion of falsehood)? OPD (32) Onus of proving the above issue was on the defendant. It was the case of the defendant that the plaintiff had concealed material facts from the Court to the effect, that post sealing of the shop, that is, the suit property on the ground of misuser and unauthorized construction by the MCD on 04.02.2011, the plaintiff gave up her rights in the said shop and the defendant alone managed the affairs of the shop in his individual capacity as a proprietor thereof. He deposited all the de-sealing charges, that is, conversion charges and penalty with the MCD and thereafter even filed an appeal before the Ld. Appellate Tribunal, MCD. In his appeal, on 13.01.2016, the Ld. Appellate Tribunal MCD directed the MCD to de-seal the shop in question.
(33) The maxim suppressio veri - expressio falsi means that suppression of truth is equivalent to an expression of falsehood. Suggestio falsi means giving suggestion of a false statement. It is a rule of equity, as well as of law, that suppressio veri is equivalent to suggestio falsi. It is a well settled law that one who comes to the Court must come with clean hands and a person whose case is based upon falsehood, has no right to approach the Court.CS DJ 6472/2018 Page No. 16/ 36
(34) It is contended in the plaint by the plaintiff as well as deposed by her in her affidavit Ex.PW1/A that the defendant was required to remove himself from the suit property after the expiry of partnership deed dated 11.05.2009 (Mark D/ Ex.DW1/4) on 30.04.2011. However, the defendant failed to do so and became an unauthorized occupant. The affidavit Ex.PW1/A of the plaintiff/ PW1 as well as the plaint is conspicuously silent with respect to the sealing of the suit property/ shop by the MCD on 04.02.2011 and its consequent de-sealing pursuant to the order of the Ld. Appellate Tribunal, MCD dated 13.01.2016. PW1 in her cross-examination had admitted that the suit property was sealed by the MCD. She further admitted that she was aware of the sealing as they had another shop in the vicinity and her relative apprised her about the same. She admitted that the defendant had apprised her that money was required to be spent for getting the property de-sealed. She further admitted that she had not contributed any money for getting the shop de-sealed. She further admitted that the suit property was later on de-sealed by order of Ld. Appellate Tribunal, MCD.
(35) Thus, admittedly PW1 had knowledge about the sealing of the suit property by the MCD. She was aware that the suit property was sealed prior to the expiry of the alleged partnership deed Mark D/ Ex.DW1/4 on 30.04.2011. It had been deposed by the defendant/ DW1 that the property was sealed on 04.02.2011. The said averment is not disputed by the plaintiff as well. Thus, it is established that during the continuance of the alleged partnership deed Ex.DW1/4, the shop/ property in question was sealed by the MCD. Further, DW1 had relied upon the certified copies of orders in appeal no. 993/2013 (Ex.DW4/1 collectively/ Mark A to Mark D) as per which vide CS DJ 6472/2018 Page No. 17/ 36 order dated 13.01.2016 the suit property was ordered to be de-sealed and that the said proceedings were instituted by the defendant in his capacity as proprietor of M/s. Om Medicos/ chemist shop and in the capacity of the tenant of the said shop.
(36) Thus, PW1 was aware that the shop was sealed. She even deposed that only post sealing of the property by the MCD, she had not received Rs.10,000/- per month from the defendant. In view of the same, it is held that the plaintiff had concealed material facts from the Court and had suppressed the truth to the effect that the shop in question was sealed during the subsistence of the alleged partnership deed Ex.DW1/4 and as a result thereof the so called partnership arrangement between the parties was not extended further. She further suppressed the fact that defendant alone had prosecuted the matters before the MCD as well as before Ld. Appellate Tribunal, MCD. Thus, it is held that the plaintiff had suppressed material facts from the Court and accordingly, this issue is decided in favour of the defendant and against the plaintiff.
Issue No.5:
Whether the suit of the plaintiff is without any cause of action? OPD (37) Onus of proving the above issue was on the defendant. Both PW1/ plaintiff and DW1/ defendant had admitted the execution of so called partnership deeds dated 14.01.2003 (Mark A/ Ex.DW1/1), 27.01.2005 (Mark B/ Ex.DW1/2), 01.05.2007 (Mark C/ Ex.DW1/3) and 11.05.2009 (Mark D/ Ex.DW1/4). The last alleged partnership deed Ex.DW1/4 was executed CS DJ 6472/2018 Page No. 18/ 36 between the plaintiff and the defendant wherein it was specified that the suit property is a tenanted premises and the plaintiff is the tenant in the said premises and the defendant is only a partner of M/s. Om Medicos and has no interest nor entitled qua the tenancy rights of the shop. The suit shop admittedly is in the possession of the defendant and the present suit was instituted by the plaintiff seeking the relief of mandatory injunction as well as the recovery of arrears for use and occupation. In view of these admitted facts, it is held that plaintiff has cause of action in her favour. Accordingly, this issue is decided in favour of the plaintiff and against the defendant.
Issue No.6:
Whether the suit of the plaintiff is barred under Section 69 of Indian Partnership Act? OPD (38) Onus of proving the above issue was on the defendant. It is the case of the defendant that the partnership deed relied upon by the plaintiff is not registered with the Registrar of Firms and thus, the suit is barred under Section 69 of the Indian Partnership Act.
(39) As per Section 69 of the Indian Partnership Act, no suit can be brought to enforce a right arising from a contract or conferred by the Act, by a partner against the firm or against another partner or against third party unless the firm is registered and the person is a registered partner. However, sub-section 3 to Section 69 states that the provision shall not apply to enforcement of any right to sue for the dissolution of firm or for accounts of a dissolved firm or any right or power to realize the property of a dissolved firm.CS DJ 6472/2018 Page No. 19/ 36
(40) The plaintiff in the plaint had claimed decree for recovery of money towards arrears of rent, however, in the title the same is claimed as arrears for use and occupation charges. Be that as it may, the bar of Section 69 of Indian Partnership Act does not apply to the present case in hand as the suit is not qua the partnership of M/s. Om Medicos but is towards either rent or user charges of a property which was initially used by the alleged partnership firm of the plaintiff and the defendant as per alleged, however, admitted partnership deeds Ex.DW1/1 to Ex.DW1/4. More so, the application of the defendant under Order VII Rule 11 CPC wherein the very same plea was taken, was also dismissed by the Ld. Predecessor of this Court vide order dated 02.08.2022 on the ground that as per Section 69 (3) of the Act, the registration of firm is not mandatory if the suit pertains to dissolution of a firm or for account of the firm. Accordingly, it is held that the present suit is not barred under Section 69 of Indian Partnership Act and this issue is decided in favour of the plaintiff and against the defendant.
Issue No.7:
Whether the suit of the plaintiff is liable to be dismissed under Order I Rule 9 CPC and is bad for non-joinder of necessary party? OPD (41) The onus of proving the above issue was on the defendant. It was averred by the defendant that Sh. Vishnu Bhagwan Gurwala, owner of Gurwalon Ki Dharamshala was the owner of suit property. He was not impleaded as a party in the present suit. He was the competent person who could have apprised the Court regarding what transpired after sealing of the suit property.CS DJ 6472/2018 Page No. 20/ 36
(42) As per the provisions of Order I Rule 9 CPC, no suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it:
Provided that nothing in this rule shall apply to non-joinder of a necessary party.
(43) As per plaint as well as affidavit Ex.PW1/A, plaintiff/ PW1 had admitted as well as pleaded that her husband late Sh. Rajmal Sharma was tenant in the suit shop. She had, however, not mentioned the nature of tenancy or the name of the landlord in either the plaint or in her affidavit. She, however, in her cross-examination had admitted that the property belonged to Gurwalon Ki Dharamshala. Thus, plaintiff claimed inheritance of tenancy rights from her late husband, who was tenant of Gurwalon Ki Dharamshala and she had not impleaded the landlord as a party in the present matter.
(44) It is a well settled law that a suit should not be dismissed on the ground of non-joinder/ mis-joinder of parties but if the decree cannot be effective without the absent parties, the suit is liable to be dismissed. As per alleged partnership deeds Ex.DW1/1 to Ex.DW1/4 and as per the own stand of the plaintiff, she is tenant in the premises, inheriting tenancy rights from her deceased husband. The inter-se title of plaintiff and defendant qua the suit property cannot be determined in the absence of impleadment of landlord/ owner of the property as a party, the landlord being necessary party. Thus, it is held that the suit is bad for non-joinder of necessary party, that is, landlord.
Accordingly, this issue is decided in favour of the defendant and against the plaintiff.
CS DJ 6472/2018 Page No. 21/ 36Issue No.8:
Whether the present suit is not properly valued for the purpose of court fees and jurisdiction? OPD (45) The onus of proving the above issue was on the defendant. It is the case of the defendant that the plaintiff had neither valued the suit properly nor had paid appropriate court fees. The present suit is filed seeking the relief of mandatory injunction and for recovery of arrears and occupation charges.
Court fees is paid by the plaintiff on the said reliefs. However, as per the defendant the plaintiff ought to have paid the court fees on the relief of recovery of possession and declaration as by way of the present suit the plaintiff, in fact, is seeking the relief of possession and declaration. The defendant had raised the said contention by way of application under Order VII Rule 11 CPC as well. The said application was dismissed by the Ld. Predecessor of this Court vide order dated 02.08.2022 on the ground that this is a suit for recovery and injunction and on the said reliefs appropriate court fees had been paid by the plaintiff. The said order was not assailed before any forum and therefore, had attained finality. Accordingly, this issue is decided in favour of the plaintiff and against the defendant.
Issue No.9:
Whether the suit of the plaintiff is barred by limitation? OPD (46) The onus of proving the above issue was on the defendant. The defendant in his written statement had averred that as per the plaint the partnership dissolved on 30.04.2011 and as per the Limitation Act, the period CS DJ 6472/2018 Page No. 22/ 36 of limitation for instituting a suit for account or for share of profits of dissolved firm is three years from the date of dissolution. It was further averred that even otherwise, as per the own case of the plaintiff, the cause of action arose on 01.05.2011. The present suit was filed in the year 2018, that is, after a lapse of more than seven years from the dissolution of partnership and therefore, is barred by limitation.
(47) The suit was filed seeking reliefs of mandatory and permanent injunctions and recovery of arrears for use and occupation charges. It was stated in the plaint that the cause of action arose on 01.05.2011 when the partnership deed expired by efflux of time. It further arose when the plaintiff asked the defendant to vacate the suit premises but the defendant failed to do so. The prayer clause reveals that the plaintiff had sought decree of mandatory injunction seeking directions to the defendant to remove himself from the suit shop, a decree of permanent injunction against the defendant restraining him from creating any third party interest in the suit shop and a decree of recovery of money directing the defendant to pay to the plaintiff a sum of Rs.7,20,000/- as arrears of rent which were claimed by the plaintiff for the last three years from the date of filing of the suit at the rate of Rs.20,000/-
per month.
(48) The present suit was instituted on 23.10.2018. The alleged partnership deed Ex.DW1/4/ Mark D (admitted by both the parties) expired on 30.04.2011. As per plaintiff, the defendant since then had failed to remove himself from the suit property. The two reliefs claimed by the plaintiff are that of mandatory injunction and permanent injunction. The period of CS DJ 6472/2018 Page No. 23/ 36 limitation to institute a suit for injunction is three years from the date when the cause of action arises. As per the own case of the plaintiff, cause of action arose in her favour on 01.05.2011 when the alleged partnership deed Ex.DW1/4 expired by efflux of time. No notice had been placed on record by the plaintiff whereby the defendant was asked to vacate the suit property. As discussed above, the suit property was sealed by the MCD on 04.02.2011. The present suit was instituted by the plaintiff after the property was de-sealed by the order of the Ld. Appellate Tribunal dated 13.01.2016 on the petition of the defendant, pursuant to which the defendant entered into the premises and started the business. As discussed above, the plaintiff had suppressed material facts from the Court by failing to disclose about the sealing of the property in question by the MCD and its subsequent de-sealing post petitions of the defendant before Ld. Appellate Tribunal and order of the Ld. Appellate Tribunal, MCD de-sealing the same. Thus, going by the plaint of the plaintiff, as per which cause of action arose on 01.05.2011, the suit is barred by the law of limitation qua the relief of mandatory and permanent injunctions.
(49) With respect to the relief of arrears of rent, as stated in the prayer clause and the relief of user and occupation charges as stated in the body of plaint/ the title of the suit, the plaintiff had claimed the same for last three years prior to the institution of the suit and therefore, it cannot be said that the said relief is barred by the law of limitation being claimed for the last three years only prior to the filing of the suit.
(50) This issue is decided accordingly.
CS DJ 6472/2018 Page No. 24/ 36Issues no.1, 2 and 3:
Whether the plaintiff is entitled to a decree of recovery of money against the defendant as prayed for in prayer clause (b) of the plaint? OPP Whether the plaintiff is entitled to a decree of mandatory injunction against the defendant thereby directing the defendant to remove himself from the suit premises, namely, Shop bearing No.8, property no. 4/12, Gurwalon Ki Dharamshala, Angoori Bagh, Market Behind Red Fort, Jamuna Bazar, Delhi-110006? OPP Whether the plaintiff is entitled to a decree of permanent injunction against the defendant thereby restraining the defendant, their agents etc. from creating any third party interest by way of sale, gift, mortgage, charge or in any manner or parting with possession of the above-mentioned suit premises? OPP (51) Issues no.1, 2 and 3 are being adjudicated together being inter-
connected and as the onus to prove all these issues was on the plaintiff.
(52) The plaintiff as well as the defendant have admitted the execution of alleged partnership deeds dated 14.01.2003, 27.01.2005, 01.05.2007 and 11.05.2009 Ex.DW1/1 to Ex.DW1/4 / Mark A to Mark D. Perusal of the said alleged partnership deeds reveal that vide alleged partnership deed Ex.DW1/1 initially a partnership was executed between husband of the plaintiff, mother of the defendant and defendant, thereafter vide alleged partnership deed dated 27.01.2005 Ex.DW1/2 partnership was executed between the defendant and the husband of the plaintiff which commenced from 15.01.2005 to 14.01.2007. As per the said alleged partnership deed, the husband of the plaintiff was the owner of the tenancy rights and the defendant was not having any interest in the tenancy rights. Similarly, vide alleged CS DJ 6472/2018 Page No. 25/ 36 partnership deed Ex.DW1/3 dated 01.05.2007 it was again acknowledged that the husband of the plaintiff was the owner of the tenancy rights and the defendant was not having any title or interest in the tenancy. Thereafter, on 11.05.2009 alleged partnership deed Ex.DW1/4 was executed between plaintiff and the defendant wherein again the defendant acknowledged the plaintiff as the owner of the tenancy rights.
(53) Plaintiff in her cross-examination had admitted that the suit property is owned by Gurwalon Ki Dharamshala, that the pharmacy license was in the name of defendant, that the business of selling the medicines in the shop was being looked after by the defendant and royalty money as per the rent agreement used to be paid to her by the defendant regularly. She further admitted that the suit property was sealed by the MCD and that the defendant had asked her that for getting the property de-sealed, money need to be spent but she had not given any money to the defendant for getting the property de- sealed. She further admitted that the suit property was de-sealed by the order of Ld. Appellate Tribunal MCD, Tis Hazari Courts, Delhi and that she had not filed any case or application for de-sealing the property. She further admitted that the defendant had informed her that conversion charges and penalty charges have to be deposited and that she had not mentioned about the sealing or de-sealing of the shop in question in her plaint. She had also admitted that she had not served any notice upon the defendant.
(54) The defendant, besides placing on record originals of alleged partnership deeds Ex.DW1/1 to Ex.DW1/4, had also placed on record original certificate of renewal of license to sell, stock or exhibit drugs at the suit premises for the period 03.04.2008 to 02.04.2013 (Ex.DW1/5); original CS DJ 6472/2018 Page No. 26/ 36 MCD receipt dated 04.02.2011 on account of conversion charges for the year 2007 to 2011 in the name of Om Medicos (Ex.DW1/6); original MCD receipt dated 22.06.2011 in the name of Om Medicos Krishan Kumar on account of conversion charges along with penalty as per order of the Monitoring Committee (Ex.DW1/7); original MCD receipt dated 02.06.2011 on account of conversion charges for the year 2011-2012 in the name of Krishan Kumar (Ex.DW1/8); original application to Executive Engineer dated 28.09.2011 for de-sealing the suit shop post payment of conversion charges including penalty (Ex.DW1/9); copy of complaint made to OSD LG Delhi dated 05.01.2012 (Ex.DW1/10); copy of complaint to the Commissioner, MCD dated 18.09.2011 (Ex.DW1/11); copy of complaint to the SHO PS Chandni Chowk dated 24.07.2018 (Ex.DW1/12) and certified copy of plaint along with orders in CS No. 2253/2018 (Ex.DW1/13). He had also relied upon copy of Appeal No. 993/2013 (Mark A); copy of orders in Appeal 993/2013 (Mark B); copy of status report of MCD and monitoring committee filed in appeal no. 993/2013 (Mark C); copy of judgment dated 13.01.2016 in appeal no. 993/2013 (Mark D); copy of WP(C) 3365/16 (Mark E); copy of death certificate of Sh. Rajmal Sharma (Mark F); five photographs of the shop (Mark G) and site plan of the shop (Mark H). These documents Mark A to Mark D were proved before the Court in the deposition of DW4 who had brought the certified copies of the said documents Ex.DW4/1 colly. DW2 had proved on record the certified copy of Writ Petition and order dated 18.12.2019 Ex.DW2/1.
(55) The defendant/ DW1 had admitted in his cross-examination that he had not placed on record any document to show that Gurwalon Ki Dharamshala CS DJ 6472/2018 Page No. 27/ 36 had accepted him as a tenant in the suit property or that he had made any periodical payment to the owner of the suit property, that is, Gurwalon Ki Dharamshala towards the suit property. He further admitted that he had made payment of monthly amount to the plaintiff till the month prior to the sealing of the property, that is, till 10.01.2011. No document was executed between him and the plaintiff for transferring tenancy rights of the plaintiff in the suit property in his favour. He had also not mentioned that the plaintiff had transferred her tenancy rights in his favour in communications with MCD or in the cases filed by him against the MCD.
(56) It is argued by the Ld. Counsel for the defendant that the owner of the premises had appeared before the Ld. Appellate Tribunal, MCD and had admitted that the defendant was his tenant. He had relied upon the documents Ex.DW4/1 collectively in support of his contentions. Perusal of the documents reveal that no title in favour of the defendant was declared by the Ld. Appellate Tribunal, MCD nor the said question was in issue before the Ld. Appellate Tribunal.
(57) Perusal of the certified copies of the various order-sheets of the Ld. Appellate Tribunal MCD (duly proved by DW4 as Ex.DW4/1) shows that Sh. Vishnu Bhagwan Gurwala had appeared before the Ld. Appellate Tribunal, MCD on 09.12.2014 and claimed himself to be the owner of the property in question on the basis of a permanent lease in favour of his ancestors since 1875. On 23.02.2015 he had placed before the Ld. Appellate Tribunal certain documents viz. photocopy of order dated 30.09.1988 of the Court of the Estate Officer, copy of the appeal filed by the MCD against the order of Estate Officer, house tax assessment letter for the year 1957-58, copy of reply in suit CS DJ 6472/2018 Page No. 28/ 36 no. 1019/13, extract from the property register for the fort notified area committee, copy of letter dated 19.03.2015 and copy of receipt dated 25.03.2015 in respect of Gurwalon Ki Dharamshala. After considering the various documents including the status report filed by the Monitoring Committee, the Ld. Appellate Tribunal MCD vide judgment dated 13.01.2016, observed that the shops in question were in existence prior to 1962, were being used for commercial purposes and no unauthorized construction, whatsoever, had been raised by the appellants after 1962 and hence, they are entitled for protection of proviso to Section 14 of the DDA Act. The Ld. Appellate Tribunal MCD allowed the appeals of the appellants (including the present defendant Krishan Kumar) with directions to the appellants to furnish affidavit that they will use the subject premises for those activities only for which they were being used at the time of sealing and in case of change in future they will use the same as permissible under the Master Plan 2021 and shall not raise any unauthorized construction in the same.
(58) The reliefs of injunctions are equitable reliefs and it is a settled law that equity acts in personam. The purpose of mandatory injunction is to restore a wrongful state of things to its former rightful order. A suit for mandatory injunction will lie against a licensee and the law of estoppel as envisaged in Section 116 of the Indian Evidence Act will apply. Section 116 of the Indian Evidence Act categorically states that a licensee obtaining possession from the licensor is deemed to obtain it on the condition that he will not dispute the title of the licensor who gave the possession to him and without whose permission he would not have got the possession. However, delay and latches CS DJ 6472/2018 Page No. 29/ 36 defeat equity. Where the licensee retains the possession of the property with himself and the licensor neither objects to it nor takes necessary steps to cause the eviction of the licensee with promptitude, then the erstwhile licensee will be treated as a trespasser and the licensor will have to come up with a suit for recovery of possession and not of mandatory injunction. As discussed earlier, as per the plaint, the alleged partnership came to an end in the year 2011 and the suit was filed in the year 2018. No steps were taken by the plaintiff in the intervening period for taking back the possession of the property from the defendant.
(59) It was held in the case titled as Ajab Singh v. Shital Puri, 1993 Civil Court Cases 497 (All.) that where a licensor approached the Court for injunction within a reasonable time after the license is terminated, he is entitled to an injunction. On the other hand, if the licensor cause huge delay the Court may refuse the discretion to grant an injunction on the ground that the licensor had not been diligent and in that case, the licensor will have to bring the suit for possession which will be governed by Section 7 (5) of Court Fees Act.
(60) It was further observed in the case titled as Krishan Pillai v. Kaliasathammal , AIR 1925 Mad. 810 that '...all matters of equitable relief, the Court is entitled to take the latches of the party seeking relief into consideration in granting or refusing it...'. It was further observed that in cases where plaintiff is sleeping over his rights for 10 or 12 years, the remedy by way of mandatory injunction would be refused. Thus, a person can destroy his legal right by acquiescence when he allows the other party to incur expenditure in doing what he knew would injure his rights over property.
CS DJ 6472/2018 Page No. 30/ 36Promptness is essential if mandatory injunction is desired remedy.
(61) Further, Hon'ble Supreme Court of India in the case titled as Anathula Sudhakar v. P. Buchi Reddy (Dead) By LRs & Ors. (2008) 4 Suprme Court Cases 594 while deciding the scope of a suit for prohibitory injunction relating to immovable property, held as under:
"21. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under :
(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy.
Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
.... A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some primafacie right of a third party over it, is made out or shown...".
(62) In the present case in hand, the following facts are proved/ admitted:
a) The suit property was owned by Gurwalon Ki Dharamshala.
b) The husband of the plaintiff was the tenant of Gurwalon Ki Dharamshala and he executed a so called partnership deed with the defendant which was renewed thrice and post his death, as the tenancy devolved upon the plaintiff being his wife, a so called partnership deed was executed between the plaintiff and the defendant.CS DJ 6472/2018 Page No. 31/ 36
c) The shop was run by the defendant under the alleged partnership deed as per which the defendant was an active partner and he used to pay a fixed monthly premium to the plaintiff qua usage of the shop and the plaintiff was stated to be a sleeping partner.
d) The said arrangement existed between the parties till February 2011 when the shop was sealed by the MCD.
e) Post sealing of shop by the MCD, no conversion charges or penalty charges were deposited by the plaintiff and the entire conversion charges and penalty charges were deposited by the defendant.
f) The defendant instituted petition before the Ld. Appellate Tribunal, MCD against the order of the MCD sealing the shop in question and on the petition of the defendant on 13.01.2016 the shop in question was ordered to be de-sealed.
g) A Writ Petition was filed by the NDMC/ MCD before the Hon'ble High Court of Delhi against the defendant impugning the order of the Ld. Appellate Tribunal, MCD, however, no stay was granted against that order and therefore, the defendant continued to run the shop in question.
(63) First and foremost, four agreements Ex.DW1/1 to Ex.DW1/4 were entered into between the parties/ their predecessor in interest. The said agreements were named as partnership deeds. In order to determine whether a group of persons is or is not a firm or whether a person is or is not a partner CS DJ 6472/2018 Page No. 32/ 36 in a firm, regard shall be had to the real relation between the parties, as shown by all the relevant facts taken together (Section 6 of Indian Partnership Act).
Sharing of profits is one of a strong test of partnership and the agreements Ex.DW1/1 to Ex.DW1/4 even fail that test. It is admitted by PW1 that defendant used to pay Rs.10,000/- per month to her as royalty money. She further deposed that the money was paid as per the rent agreement. The pharmacy license was in the name of the defendant and her late husband had no knowledge of running the medical shop. Defendant had also admitted that initially he used to make monthly payment to the husband of the plaintiff and after his death, he used to make monthly payment to the plaintiff. He further deposed that the said payment was not at all dependent upon the income earned from the chemist shop/ the shop which was run from the suit property. Thus, from the deposition of parties, it can be culled out that the said royalty money was neither any royalty money nor money towards share of profit. Rs.10,000/- were regularly paid by the defendant to the plaintiff irrespective of the income earned from the pharmacy business which was conducted from the shop. The agreements further specified that the tenancy of the shop was in the name of the plaintiff and the defendant will run the shop. In the depositions, the parties have further specified the nature of that monthly payment as payment qua rent.
(64) It can be further deciphered that the tenancy which allegedly devolved upon the plaintiff from her husband was a statutory tenancy, though the nature of tenancy has not been divulged before the Court and the landlord has not been made a party. The said agreements were camouflaged in the name of partnership deeds so as to subvert the legal provisions with respect to sub-
CS DJ 6472/2018 Page No. 33/ 36tenancies/ taking written consent of the landlord prior to sub-letting. Thus, a sub-tenancy was created in favour of the defendant in the garb of partnership deeds. The same can be fortified from the depositions as well as from the plaint wherein in the relief clause, the plaintiff is claiming arrears of rent from the defendant.
(65) Admittedly, at present the defendant is in possession of the shop. He came in possession of the shop through the late husband of the plaintiff and thereafter through plaintiff post execution of so called partnership deeds. Thus, the possession of the shop was given to the defendant for the purpose of running a Chemist Shop and therefore, the nature of possession of the defendant/ so called partnership firm in the property was that of a licensee only. Once the tenure of the agreement Ex.DW1/4 expired/ the so called partnership expired by efflux of time, the defendant and the plaintiff remained no more partners (in their own eyes/ as per their agreement). However, the possession was claimed by the defendant on the ground that he was the one who filed petition before the Ld. Appellate Tribunal, MCD as well as deposited conversion and penalty charges.
(66) For good seven years no action was taken by the plaintiff to claim possession from the defendant, who as per the agreements of the parties, was a licensee of the plaintiff in the suit property. As discussed above, the limitation period for bringing the suit for the relief of injunction is three years only and the suit of the plaintiff seeking the relief of permanent and mandatory injunction is barred by the law of limitation. Further more, it was within the knowledge of the plaintiff that the suit property was sealed and the defendant had deposited penalty charges, conversion charges and was CS DJ 6472/2018 Page No. 34/ 36 litigating before the Ld. Appellate Tribunal, MCD still no action was taken by the plaintiff seeking impleadment before the Ld. Appellate Tribunal, MCD. She acquiesced in the actions of the defendant and had not approached the Court for considerable period of time. Due to inaction on her part for seven years, her title qua the property also came under cloud.
(67) Thus, she was required to file a suit for possession and declaration along with consequential reliefs of injunction, if any, along with recovery. The same has not been done by the plaintiff in the present matter.
(68) As discussed in the aforesaid issues, the plaintiff is guilty of concealing material facts from the Court, the reliefs of injunctions are barred by limitation, the suit is bad for non-joinder of necessary party, that is, landlord. Further, injunctions being equitable and discretionary reliefs can be granted to those who come to the Court with clean hands. It is further well settled law that equity aid the vigilant and not those who sleep on their rights.
(69) In view of the above-said findings and discussions, it is held that the plaintiff is not entitled for the reliefs of injunctions as prayed for.
(70) Further more, the plaintiff had claimed for relief of recovery of user and occupation charges. However, in the prayer clause the plaintiff is claiming the recovery of rent. As discussed above, it can be culled out from the entire pleadings and documents placed on record by the parties including certified copies of proceedings, that the suit premises are covered under the provision of Delhi Rent Control Act and the plaintiff or her late husband, as the case may be, were not entitled to sub-let the premises in question except with the written consent of the landlord which was not done in the present CS DJ 6472/2018 Page No. 35/ 36 case. In order to subvert the legal provisions, a camouflage of partnership deeds was created wherein the defendant had to pay a fixed amount of money per month to the plaintiff irrespective of the sale in the shop. The plaintiff in the cross-examination and even in the prayer clause had stated that she is claiming rent from the defendant. In view of the same, again the parties have not approached the Court with clean hands and are guilty of suppression of material facts. Thus, the plaintiff is not entitled for decree of recovery of money as well towards user and occupation charges.
(71) Accordingly, these issues are decided against the plaintiff and it is held that the plaintiff is not entitled for the prayed reliefs from the Court.
Relief:
(72) In view of findings given on the above issues, the suit filed by the plaintiff is hereby dismissed. Considering the nature of the matter, parties are directed to bear their own costs. Decree sheet be prepared accordingly.
(73) File be consigned to record room, after due compliance.
Announced in the Open Court on 27.05.2024 (Neha Paliwal Sharma) District Judge-03, Central District, Tis Hazari Courts, Delhi It is certified that this judgment contains 36 pages and each page bears my signatures.
(Neha Paliwal Sharma) District Judge-03, Central District, Tis Hazari Courts, Delhi CS DJ 6472/2018 Page No. 36/ 36