Delhi District Court
Sh. Goverdhan vs New Delhi Municipal Corporation on 19 December, 2011
1
IN THE COURT OF Ms. VEENA RANI, COMMERCIAL CIVIL JUDE,
PATIALA HOUSE COURTS, NEW DELHI
Suit No:48/09/2007
1. Sh. Goverdhan
2. Sh. Hazari lal .....Plaintiffs
Vs.
1. New Delhi Municipal Corporation
2. Sardari lal .....Defendants
ORDER
1. Vide this order I shall dispose of the application of the plaintiffs under order 39 rule 1 & 2 CPC. Briefly stated the facts for the disposal of this application are as under:
2. The plaintiffs have filed the present suit for permanent and mandatory injunction seeking to restrain the defendant No:1, its officials etc. from transferring stall No:28, Sarojini Nagar, New Delhi. Plaintiffs also seeks a decree for mandatory injunction in their favour and against the defendant No:1 for transferring the stall No;28, Sarojini Nagar, New Delhi in favour of the legal heirs of Smt. Lalti Devi i.e. both the plaintiff and Sardari Lal jointly. Further a decree for permanent injunction in favour of the plaintiff and against the defendant No:2 is also sought by the plaintiff, thereby restraining the defendant NO:2, his family members, legal heirs, agents, employees, associates etc from transferring, selling, Suit No:48/09/2007, Goverdhan & others Vs. NDMC & Others 2 alienating, parting with possession or creating any third party interest in any manner what soever in respect of stall no:28, Sarojini Nagar, New Delhi.
3. It is stated by the plaintiffs that they are the sons of Smt. Lalti Devi who expired on 3062007. It is submitted that Smt. Lalti Devi was the licencee of vegetable stall No:28, Sarojini Nagar, New Delhi and the licence for the same was granted by the defendant No:1/NDMC. It is submitted that Smt. Lalti Devi was doing her business from the aforesaid stall and respondent No:2 who is also the son of Smt. Lalti Devi was also looking after the business along with Smt. Lalti Devi in the said stall.
4. Plaintiffs stated that they and respondent No:2 are the legal heirs of Smt. Lalti Devi and are entitled to become the licencee of the above said stall but defendant No:2 is not allowing the plaintiffs to do the business from the stall No:28, Sarojini Nagar, New Delhi and defendant No:2 in connivance with the defendant no:1 is trying to get transferred the licence in his own name in respect of the stall No:28, Sarojini Nagar, New Delhi.
5. It is stated by the plaintiffs that during the life time of Smt. Lalti Devi, when she was aged about 90 years, the defendant No:2 tried to get transfer the aforesaid stall in his name but plaintiffs made a complaint to the defendant No:1. It is submitted that after the death of Smt. Lalti Devi they have filed objections with the defendant No:1 on 1272007 but no Suit No:48/09/2007, Goverdhan & others Vs. NDMC & Others 3 action has been taken by the defendant No:1. It is submitted that defendant No:1 has also failed to transfer the stall No:28, Sarojini Nagar, New Delhi in favour of the plaintiffs. Hence, the present suit.
6. Defendant No:1/NDMC filed written statement and admitted that Smt. Lalti Devi was doing business from the stall No:28, Sarojini Nagar, New Delhi. It is stated that in the year 1998 the said Smt. Lalti Devi has requested for transfer of the licence in the name of her son Sh. Sardari Lal i.e. defendant No:2 and also submitted relevant papers in this regard, however, lateron in the year 2006 the defendant No:2 approached for transfer of the Licence in his name on the ground that the defendant No:2 had entered into partnership with Smt. Lalti Devi vide partnership deed dt.15102005 which was dissolved vide deed of dissolution dt.1432006 and as such the matter is pending with the answering defendant for further action in the matter. It is submitted that NDMC is the owner of the suit premises and have full right to allot a premises on Licence basis as per rules and regulations. It is denied by respondent No:1 that there is any connivance between the NDMC and defendant No:2. Defendant No:2 admitted that a letter of the plaintiffs was received in their office on 1272007. It is submitted by the defendant/NDMC that late Smt. Lalti Devi was simply a licencee and the answering defendant is not bound to transfer the same in favour of the plaintiffs unless and until the dispute Suit No:48/09/2007, Goverdhan & others Vs. NDMC & Others 4 between the legal heirs of Smt. Lalti Devi are settled between the parties.
7. Defendant No:2 has also filed his written statement. It is stated by the defendant No:2 that plaintiffs have no locus standi to file the present suit as Smt. Lalti Devi, as per her own wish, will and desire transferred her own share by executing various documents in favour of the defendant No:2. It is submitted that plaintiffs never acted, participated and managed the affairs nor conducted the business from the shop No:28, Sarojini Nagar, New Delhi and they have only filed the present suit in order to create hindrance in the transfer of the license of the said shop in favour of the defendant No:2. It is stated that defendant No:2 and Smt. Lalti Devi were used to manage all the affairs from the shop No:28, Sarojini Nagar, New Delhi and in fact a partnership deed dt.15102005 was executed between them and as per said partnership deed the whole affairs of the concerned business operated from the said shop was solely managed by the defendant No:2 being the active partner of partnership. It is submitted by the defendant No:2 that his mother Lalti Devi has transferred the said license pertaining to the shop No:28, Sarojini Nagar, New Delhi in his favour by executing various documents like dissolution of deed dt.1432006, Affidavit, Application and No Objection Certificate dt.1272006 etc. It is stated by defendant No:2 that the plaintiffs have neither challenged or disputed the execution of said documents nor raised Suit No:48/09/2007, Goverdhan & others Vs. NDMC & Others 5 any objections thereto till date , hence they are not entitled to the reliefs prayed for in the present suit. It is submitted by the defendant No:2 that plaintiffs have no right, title or interest in stall No:28, Sarojini Nagar, New Delhi, hence the suit of the plaintiffs is liable to be dismissed.
8. Plaintiff No:1 filed replication to the written statement of the defendants and reiterated the contents of the plaint. It is stated by the plaintiff that defendant No:2 has cooked up a false and frivolous story and in fact he took the advantage of the old age of the mother of the plaintiffs and has tried to take over the stall which was allotted in the name of the mother of the plaintiffs. It is submitted that defendant No:2 has also fabricated documents after taking the advantage of old age of the mother of the plaintiffs. It is denied that plaintiffs never acted participated and managed the affairs and business in the stall No:28, Sarojini Nagar, New Delhi. It is submitted that Smt. Lalti Devi never executed any documents in favour of the defendant No:2 and the documents relied upon by the defendant No:2 are forged and fabricated documents. It is stated that Smt. Lalti Devi never entered into any partnership deed with the defendant No:
2 but the defendant No:2 has forged and fabricated the said documents. It is submitted that after the death of Smt. Lalti Devi the plaintiffs are entitled for the allotment of the said shop in their favour.
9. I have heard ld. Counsel for the parties and perused the record Suit No:48/09/2007, Goverdhan & others Vs. NDMC & Others 6 carefully.
10. License is defined under Section 52 of the Indian Easement Act. Where one person grants to another or to a definite number of persons, a right to do or continue to do in or upon the immovable property of the granter, something which would in the absence of such right be unlawful. Transferability is a feature of lease. License is not transferable. A license is terminated by death of a party.
11. Section 52 of the Easements Act, 1882 reads thus:
"License, defined.Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called, a license."
A license, inter alia, (a) is not assignable; (b) does not entitle the licensee to sue the stranger in his own name; (c) it is revocable and (d) it is determined when the grantor makes subsequent assignment.
At this stage there is no need to dwell any further on the legal issues. As far as the provision under Order XXXIX Rules 1 & 2 of the CPC are concerned it is elementary that grant of an interlocutory injunction during the pendency of the legal proceeding is a matter requiring the exercise of discretion of the Court. While exercising the Suit No:48/09/2007, Goverdhan & others Vs. NDMC & Others 7 discretion the Court normally applies the following tests :
i) whether the plaintiff has a prima facie case;
ii) whether the balance of convenience is in favour of the plaintiff; and
iii) whether the plaintiff would suffer an irreparable injury if his prayer for interlocutory injunction is disallowed. The decision whether or not to grant an interlocutory injunction has to be taken at a time when the exercise of the legal right asserted by the plaintiff and its alleged violation are both contested and remain uncertain till they are established on evidence at the trial. The relief by way of interlocutory injunction is granted to mitigate the risk of injustice to the plaintiff during the period before which that uncertainty could be resolved. The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection has, however, to be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The Court must weigh one need against another and determine where the "balance of convenience" lies. [See Gujarat Suit No:48/09/2007, Goverdhan & others Vs. NDMC & Others 8 Bottling Co. Ltd. and Ors. v. Coca Cola Co. and Ors.
MANU/SC/0472/1995 : AIR1995SC2372 .] In Dorab Cawasji Warden v. Coomi Sorab Warden and Ors. MANU/SC/0161/1990 : [1990]1SCR332 , the Hon'ble Supreme Court Court, discussing the principles to he kept in mind in considering the prayer for interlocutory mandatory injunction observed :
"The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last noncontested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are :
(1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.
Suit No:48/09/2007, Goverdhan & others Vs. NDMC & Others 9 (2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.
(3) The balance of convenience is in favour of the one seeking such relief.
Being essentially an equitable relief the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the court to be exercised in the light of the facts and circumstances' in each case. Though the above guidelines are neither exhaustive nor complete or absolute rules, and there may be exceptional circumstances needing action, applying them as a prerequisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion."
In the present matter it is not disputed that the original licensee had died. As per the law the license comes to an end with the death. So does a partnership subject to the terms & conditions contained therein with respect to the legal heirs. It is now open to the NDMC to grant license as per their own policy. The defendant No.2 has already applied to the NDMC and the NDMC would take a policy decision. The plaintive are also at liberty to apply if they want and the NDMC would consider the same.
As far as the present application under Order 39 Rules 1 & 2 of the Suit No:48/09/2007, Goverdhan & others Vs. NDMC & Others 10 CPC is concerned the same is dismissed.
Put up for filing of documents, A/D and issues on 21022012. Announced in the open court on this 19th day of December, 2011. (VEENA RANI) COMMERCIAL CIVIL JUDGE, PATIALA HOUSE COURTS, NEW DELHI Suit No:48/09/2007, Goverdhan & others Vs. NDMC & Others