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Delhi District Court

Kailash Kumari & Anr. vs . Devender Kumar & Ors. on 4 August, 2015

                              Kailash Kumari & Anr. Vs. Devender Kumar & Ors.

                      IN THE COURT OF  CIVIL JUDGE­02 (SOUTH)
                          SAKET COURTS COMPLEX, NEW DELHI

In the matter of :
CS No. 116/13

    1. Kailash Kumari 
       W/o Sh. Uttam Kumar,
       R/o M­11, Sriniwas Puri,
       New Delhi­110065

    2. Kumar Gaurav @ Bushan
       S/o Sh. Uttam Kumar,
       R/o M­11, Sriniwas Puri,
       New Delhi­110065                                       ... Plaintiffs


                                  Versus

    1. Sh. Devender Kumar

    2. Sh. Joginder

    3. Sh. Bille

    4. Sh. Sumit

    5. Sh. Ajay

    6. Smt. Manju
       All R/o House No. 67, Garhi,
       East of Kailash, New Delhi.                      ... Defendants


       Date of Institution                       :        03.02.2012
       Date of Reserving Judgment                :        04.08.2015
       Date of Decision                          :        04.08.2015
       Final Decision                            :        Partly Decreed


                               J U D G M E N T

(on suit for Permanent, Mandatory Injunction & Damages/Compensation) CS No. 116/13 Page 1 of 11 Kailash Kumari & Anr. Vs. Devender Kumar & Ors.

1. This suit was filed by the plaintiffs for Permanent, Mandatory Injunction & Damages/Compensation against the defendants.

2. Briefly stated, case of the plaintiffs is that husband of plaintiff no. 1 i.e. Sh. Uttam Kumar Ahuja took the suit premises on rent on 03.04.1995 by depositing the security amount of Rs. 2,10,000/­ and late Shri Sant Ram @ Santu executed relevant documents in his favour. In 2001 the said tenancy was transferred by Shri Sant Ram in favour of plaintiff no. 1 and 2 at monthly rent of Rs. 800/­ and payment of non­refundable security/Pagri of Rs. 2,10,000/­. Thus a lease agreement was executed in the favour of plaintiff no. 1 and her son on 05.01.2001. Hence, as per plaintiffs the suit premises is in the peaceful possession of plaintiffs since 1995 with rent @ Rs. 800/­ per month and security deposit of Rs. 2,10,000/­. After the death of Shri Sant Ram defendant no.1 used to come to collect the rent on behalf of all the LRs of late Shri Sant Ram. But later on all the defendants pressurized the plaintiffs that rent of the suit premises be increased to Rs. 2,000/­ instead of earlier amount of Rs. 800/­. Hence, Plaintiff aggrieved by this, issued legal notice dated 13.06.2011 but no reply was filed. The defendants thereafter refused to accept the rent and plaintiffs were thus constrained to send the money orders for payment of rent from time to time but the same were refused by defendants. As per averments of the plaintiffs, on 20.12.2011 the defendants assaulted plaintiff no. 2 resulting in fracture of one arm and severe injuries on leg of plaintiff no. 2 and resultantly a case was also registered U/s 325/34 IPC against the defendants. This incident has not only CS No. 116/13 Page 2 of 11 Kailash Kumari & Anr. Vs. Devender Kumar & Ors.

resulted in loss of money (for treatment) but also loss of bread and butter because plaintiff no. 2 used to sit on said shop and was running the same and as plaintiff no. 2 was not keeping well, therefore shop remained closed for many days. After recovering from his injuries, plaintiff no.2 again opened the shop but defendants again threatened the plaintiffs to now kill plaintiff no. 2 if they will open the shop. Hence, aggrieved by this act of defendants, the plaintiffs have filed the present suit.

3. Upon service of summons of the present suit, defendants appeared and filed their written statement (WS) denying the allegations as contained in the plaint. That the suit of plaintiffs is liable to be dismissed as no cause of action arises in favour of the plaintiffs and against the defendants. That the plaintiffs have not approached this Hon'ble court with clean hands and have concealed material facts from this Hon'ble court hence the suit is liable to be dismissed.

4. Plaintiffs filed replication to the WS of the defendants denying the preliminary objections and other averments as contained in the WS. Averments as contained in the plaint were once again reiterated by way of the replication.

5. On the basis of the pleadings of the parties, following issues were framed vide order dated 22.03.2013:­

1. Whether the plaintiff is entitled to decree of permanent injunction against defendant as prayed for in prayer clause (a) of the prayer? OPP CS No. 116/13 Page 3 of 11 Kailash Kumari & Anr. Vs. Devender Kumar & Ors.

2. Whether the plaintiff is entitled to mandatory injunction in his favour and against the defendant as prayed for in prayer clause (b) of the prayer? OPP

3. Whether the plaintiff is entitled to damages/compensation @ Rs. 2,00,000/­? OPP

4. Whether plaintiff has not come to the court with clean hands and concealed material facts? OPD

5. Whether plaint is liable to be rejected U/o 7 Rule 11 CPC for not disclosing any cause of action? OPD

6. Whether plaint is bad for non­joinder and mis­joinder of necessary parties and mis­joinder of causes of action? OPD

7. Relief .

6. In order to prove their case, plaintiff no.1 examined herself as PW­1 by tendering her evidence by way of an affidavit Ex.PW­1/A. Plaintiffs also examined the four other witnesses namely Shri Kumar Gaurav @ Bhushan i.e. Plaintiff no.1, Shri Uttam Kumar Ahuja, Ms. Preeti and Sh. Rajender Singh as PW­2, PW­3, PW­4 and PW­5 respectively and thereafter, plaintiffs closed their evidence.

In order to prove their defence, defendant no.1 got himself examined as DW­1 by tendering his evidence by way of an affidavit Ex.DW­1/1 and thereafter, defendants closed their evidence.

7. Despite granted several opportunities, the parties have failed to address the final arguments. I have gone through the CS No. 116/13 Page 4 of 11 Kailash Kumari & Anr. Vs. Devender Kumar & Ors.

record carefully. My issue­wise findings are as under:

ISSUE NO.1 Whether the plaintiff is entitled to decree of permanent injunction against defendant as prayed for in prayer clause (a) of the prayer? OPP

8. The onus to prove this issue was upon the plaintiffs. Admittedly, plaintiff no.1 is in possession of the suit property in the capacity of tenant. There are allegations made by the plaintiffs against the defendants that they are pressurizing the plaintiffs for paying the rent @Rs.2000/­ per month instead of Rs.800/­ as agreed between the parties. It is further the case of the plaintiffs that defendants use abuses and at times become violent while mounting pressure upon the plaintiff to increase the rent. The threat and the apprehension of the plaintiff no.1 being mishandled has not been contradicted by the defendants.

As stated above, the plaintiff no.1 is in the lawful possession of the suit property as a tenant and has every right to enjoy the peaceful possession of the suit property unless evicted by following due course of law by the defendants. In such circumstances, plaintiff no.1 is entitled to the relief as prayed in clause (a) of the prayer clause. Qua the plaintiff no.2 relief is denied in view of the finding given in subsequent issues that plaintiff no.2 is not the tenant in the suit premises. Accordingly, this issue stands decided in favour of plaintiff no.1 and against the defendants.

ISSUE NO.2 Whether the plaintiff is entitled to mandatory injunction in his favour and against the defendant as prayed for in prayer clause (b) of the prayer? OPP CS No. 116/13 Page 5 of 11 Kailash Kumari & Anr. Vs. Devender Kumar & Ors.

9. The onus to prove this issue was upon the plaintiffs. It is the case of the plaintiffs that rent @ Rs.800/­ per month was being paid by the plaintiffs to the defendants as per the lease agreement dated 05.01.2003 exhibited as Ex.PW­2/1. It is further contented by the plaintiffs that the defendants are pressurizing the plaintiffs to increase the rent of the suit property to Rs.2000/­ per month which is not acceptable as huge pagri amount of Rs.2,10,000/­ has been paid to the defendants at the time of inception of the tenancy. It is therefore prayed that defendants be directed to accept the rent @ Rs.800/­ per month and they be directed not to create any hurdles in the smooth operation of the business from the suit property.

On the other hand, the defendants have their argument that firstly the lease agreement Ex.PW­2/1 is a false and fabricated document that has never been executed between the parties. It is further contended that no deposit/pagri amount of Rs.2,10,000/­ has been paid by the plaintiffs to the defendants or their father at any point of time as no proof of the same has been produced on record. It is further the arguments of the defendants that plaintiffs intend to grab the suit property and are not paying the rent timely. Hence, the plaintiffs are not entitled to any equitable relief.

It has come out in the cross examination of PW­1 that rent @ Rs.2000/­ per month has been paid to the defendants. There is no proof produced on record by the plaintiffs to show that an amount of Rs.2,10,000/­ has been paid to the defendants as deposit/pagri amount. Rather a contradictory stand has been taken by the plaintiffs in their case as at one stance it is claimed that pagri amount was paid at the time of starting of the tenancy in the year 1995 and the said fact was recorded in the document CS No. 116/13 Page 6 of 11 Kailash Kumari & Anr. Vs. Devender Kumar & Ors.

executed pertaining to the tenancy. Neither any receipt has been brought on record nor the said document alleged to be executed in the year 1995 has been produced on record to show the proof of payment of Rs.2,10,000/­. At the second instance plaintiffs have relied upon lease agreement Ex.PW­2/1 in which the amount of Rs. 2,10,000/­ was recorded but the said document was executed on 05.01.2001. Even receipt qua the same has also not been produced on record. Moreover, the lease agreement only says that the lessee shall pay whereas there is no proof on record to show that the same has actually paid. Hence, the plaintiffs have failed to substantiate their averments by leading any cogent evidence to this effect. The rent being paid is below Rs.3500/­, be it Rs.800/­ or Rs.2000/­, this court has no power to direct the defendants to accept the particular rent as offered by the plaintiffs as the competent forum for the same is the tribunal of Rent Controller. Plaintiffs have the remedy to approach appropriate forum for the same.

Now coming to the second portion of this prayer whereby plaintiffs have sought directions against the defendants from not creating hurdles in smooth operation of the business from the suit property. The basis of the suit filed by the plaintiffs is that the defendants have beaten the plaintiff no.2 which obstructs the smooth running of the business from the suit property and they apprehend the same in future. Though, plaintiff no.2 is not the tenant in the suit premises but he acts on behalf of the plaintiff no.1 for running the business at suit shop. Allegations of plaintiffs are supported with the FIR/complaint filed on record. The plaintiff has led cogent evidence on record for discharging the onus lying upon her.

CS No. 116/13 Page 7 of 11

Kailash Kumari & Anr. Vs. Devender Kumar & Ors.

In view of the observations given above and the evidence led on record, plaintiff no.1 is entitled to relief as prayed in the second portion of the prayer clause (b). This issue stands decided accordingly.

ISSUE NO.3 Whether the plaintiff is entitled to damages/ compensation @ Rs. 2,00,000/­? OPP

10. The onus to prove this issue was upon the plaintiffs. It is the case of the plaintiffs that plaintiff no.2 was beaten by the defendants following which a substantial amount of expenses were incurred on account of injury inflicted upon the plaintiff no.2. It is further averred that due to the said injury plaintiff no.2 could not go to the suit shop and the same remained closed till the filing of the suit. Hence, the loss assessed on account of the same @ Rs. 2,00,000/­ be compensated to the plaintiffs payable by the defendants.

As per the agreement Ex.PW­2/1 the tenant in the suit property are plaintiff no.1 and her son Vineet Kumar. Plaintiff no.2 i.e. Kumar Gaurav @ Bhushan is not the tenant in the suit property so his absence due to the injury at the suit property will not entitle the plaintiffs to claim damages. The plaintiff no.2 may be accompanying his mother i.e. Plaintiff no.1 to the suit property but no compensation can be granted to the plaintiffs for the inability of plaintiff no.2 to visit the suit property. Now coming to the quantum of damages on account of injury inflicted upon the plaintiff no.2. Ex.PW­2/9 i.e. Medical record merely show the treatment except few of the receipts qua the expenses incurred on the medicines which no way amounts to Rs.1,00,000/­. Rather the CS No. 116/13 Page 8 of 11 Kailash Kumari & Anr. Vs. Devender Kumar & Ors.

same are of Rs.2,000/­ approximate. The claim of the plaintiffs have not been substantiated by leading any cogent evidence on record. As observed above, the plaintiffs are not entitled to claim any damages as the plaintiff no.2 is not the tenant in the suit premises.

In view of the above observations and the evidence led, this issue stands decided against the plaintiffs and in favour of the defendants.

ISSUE NO.4 Whether plaintiff has not come to the court with clean hands and concealed material facts? OPD

11. The onus to prove this issue was upon the defendants.

Apart from the bare averments in the WS filed by the defendants, there is no evidence led by the defendants to prove the same. In absence of any such evidence, the onus lying upon the defendants remained undischarged Accordingly, this issue stands decided in favour of the plaintiffs and against the defendants.

ISSUE NO.5 Whether plaint is liable to be rejected U/o 7 Rule 11 CPC for not disclosing any cause of action? OPD

12. The onus to prove this issue was upon the defendants.

For considering the rejection of plaint u/o VII Rule 11 CPC, bare averments made in the plaint have to be considered as per the principles of law and not the defence of defendants. Defendants have raised the contention that the plaint does not disclose the cause of action, hence, it is liable to be rejected. This Court does not agree with the contention raised by the defendants for the CS No. 116/13 Page 9 of 11 Kailash Kumari & Anr. Vs. Devender Kumar & Ors.

simple reason that there are categorically averments in the plaint made by the plaintiffs that they have the apprehension of being mishandled and disturbed at the hands of defendants and the complaint/FIR has been registered by the plaintiff no.2 against the defendants with the police. Hence, the plaint discloses the cause of action. Accordingly, this issue stands decided against the defendants and in favour of the plaintiffs.

ISSUE NO.6 Whether plaint is bad for non­joinder and mis­joinder of necessary parties and mis­joinder of causes of action? OPD

13. The onus to prove this issue was upon the defendants. It is the contention of the defendants that they are not the landlords of the suit property and has been mis­joined as parties to the present suit by the plaintiffs whereas the mother of the defendants being the owner and landlord of the suit property after the death of their father who has not been made party to the suit being necessary party. It is further contended that plaintiff no.2 is also not the tenant in the suit property and therefore the suit is bad for mis­joinder of parties and non­joinder of necessary parties.

In the cross examination of the defendants witness, it has come on record that defendants alongwith their mother and sister are the co­owners of the suit property after the demise of their father. It is also not disputed on record that they have been receiving the rent from the plaintiff no.1 which by way of attornment makes them the landlords. It is further important to note here that plaintiff no.1 has the apprehension of being mishandled at the hands of defendants so they are the necessary CS No. 116/13 Page 10 of 11 Kailash Kumari & Anr. Vs. Devender Kumar & Ors.

parties to the suit against which claim has been raised. There is no allegation against the mother of the defendants qua the apprehension alleged by the plaintiff, therefore, the mother of the defendants cannot be said to be the necessary party in the suit. I agree to the contention raised by the defendants that plaintiff no.2 is not the tenant in the suit premises as the plaintiff no.1 herself has claimed that she alongwith her son Vineet were inducted as tenant in the suit premises, but mis­joinder of plaintiff no.2 as a party to the suit will not warrant the dismissal of the suit.

In view of the above observations this issue stands decided against the defendants and in favour of the plaintiffs.

Relief:

14. As a consequence to my findings on the above mentioned issues, suit of the plaintiffs is partly decreed. Defendants and their associates are hereby restrained from interfering with the peaceful possession of suit property with plaintiff no.1 i.e. Shop no.7/67, Garhi East of Kailash, New Delhi as shown in red color in the site plan in any manner and are further directed not to create any hurdle in smooth operation of business carried by the plaintiff no.1 from the suit shop. Parties to bear their own costs. Decree sheet be prepared accordingly.

15. File be consigned to the record room after due compliance.

Announced in the open Court
on 04.08.2015                                                                         (Vishal Pahuja)             
                                                                         CJ­02 (South)/Saket Courts
                                                                                     New Delhi/04.08.2015



CS No. 116/13                                                                                  Page 11 of 11