Delhi District Court
Mrs. Kamlesh Parwana vs Shri Suraj Verma on 5 April, 2011
IN THE COURT OF SH.VIKAS DHULL:SENIOR CIVIL
JUDGE:CUM:RENT CONTROLLER:DWARKA COURTS:NEW
DELHI
MCA NO: 2/2010
Mrs. Kamlesh Parwana,
W/o Sh.H.L. Parwana,
Ever Green Public School,
CB391, Naraina, Ring Road,
Subzi Mandi,
Near Radha Krishna Mandir, New Delhi
Resident of :
WZ429A, Naraina Village,
New Delhi110 028 ... Appellant
Versus
Shri Suraj Verma,
A37, Chander Nagar,
New Delhi ... Respondent
Date on which order reserved : 18.03.2011
Date on which order pronounced : 05.04.2011
JUDGMENT
1. Challenge in this appeal is made to the order dated 16.04.2010 passed by the ld.trial court, Delhi (hereinafter referred to as the impugned order) whereby the application filed by appellant/plaintiff u/O 39 rule 1 and 2 Code of Civil Procedure, 1908 (hereinafter referred to as CPC) was dismissed.
2. The brief facts which are relevant for deciding the present application are that appellant/plaintiff had filed a suit for permanent MCA NO: 2/10 1/12 injunction against the respondent/defendant whereby it was averred that appellant/plaintiff had taken on rent two rooms in a plot bearing no. CB391 at Naraina, Ring Road, Subzi Mandi, New Delhi alongwith open space (hereinafter referred to as suit property) from the respondent/defendant at a monthly rent of Rs.3,000/ in the last week of December, 2001 on the basis of oral agreement. Appellant/plaintiff had also paid a cash security of Rs.1 lac to the respondent/defendant at the time of creation of tenancy. The respondent/defendant had agreed to execute a regular lease deed in respect of suit property. Thereafter, appellant/plaintiff started her school in the name and style of M/s. Ever Green Public School from the suit property and had spent her hard earned income in providing basic facilities of school such as computer, desks, chairs, fans, cooler etc. Appellant/Plaintiff had also got constructed bathroom and toilet at her own expense when respondent/defendant expressed his inability to construct the same. Respondent/Defendant and his wife had also attended school functions organized by the appellant/plaintiff in the months of December, 2001 and January, 2002. It is further submitted that once the school of appellant/plaintiff flourished, respondent/defendant became greedy and started demanding more rent from appellant/plaintiff. With this motive, respondent/defendant had started troubling appellant/plaintiff and disturbing the peaceful possession of appellant/plaintiff in running of school for which various complaints were made to the police but no action was taken. With the motive of disturbing the functioning of school, MCA NO: 2/10 2/12 respondent/defendant had started digging the open space at the suit property so that children in the school are prevented from using the toilet built up in the open space. It is averred that respondent/defendant had threatened the appellant/plaintiff from forcible dispossession on 22.09.2002 for which a complaint was made to the police. Accordingly, the appellant/plaintiff made a prayer for issuance of decree of permanent injunction in favour of appellant/plaintiff and against the respondent/defendant thereby restraining the respondent/defendant from evicting the appellant/plaintiff from suit property without following the due process of law and from raising any construction in the suit property.
3. Alongwith the suit, appellant/plaintiff had filed an application u/O 39 rule 1 and 2 CPC whereby it was prayed that respondent/defendant be restrained from dispossessing the appellant/plaintiff without due process of law and from raising any construction in the suit property and not to disturb the ingress and outgress of appellant/plaintiff in the suit property.
4. In the reply filed to the present application, it is averred that submis sion made in the written statement be taken as reply to the present application. In the written statement filed by defendant, a prelimi nary objection was taken that by filing the present suit, appellant/plaintiff is trying to give legal status to the forcible possession and trespass into the suit property. On merits, it was submitted that in the first week of December, 2001, MCA NO: 2/10 3/12 appellant/plaintiff alongwith her husband had approached the respondent/defendant representing themselves to be the displaced family from Jammu and Kashmir asking for support from local people. The respondent/defendant taking pity on the miserable plight of the family advised her to accept his proposal to impart informal education to the destitute street children of area and respondent/defendant would arrange basic Rs.1500/ per month to meet family needs till such time she is able to find some permanent stable arrangement. Said proposal was accepted by the appellant/plaintiff and thereafter appellant/plaintiff occupied two vacant rooms of respondent/defendant behind the back of defendant. Creation of oral tenancy @ Rs.3,000/per month and accepting Rs.1 lac as security was denied by the defendant. The attending of functions at the suit property by respondent/defendant and his wife in the month of December' 2001 and January'2002 were admitted but it was submitted that same were organized by the defendant. It was further submitted that school being run by appellant/plaintiff is not in conformity with the norms fixed by the Government of Delhi. It was further submitted that appellant/plaintiff has forcibly installed herself in the suit property by way of trespassing. Accordingly, a prayer was made to dismiss the application.
5. After hearing both the parties, ld.trial court vide impugned order dismissed the application of appellant/plaintiff on the ground that there is not a single document to prove that appellant/plaintiff is a MCA NO: 2/10 4/12 tenant in the suit property. Ld.trial court disbelieved the photographs filed on record showing the attending of functions by respondent/defendant and his wife on the ground that it does not bear the actual date of clicking the photographs. The third ground on which application was dismissed was the absence of registered lease deed of suit property in favour of appellant/plaintiff.
6. The impugned order has been challenged vide the present appeal by the appellant/plaintiff on the ground that the ld.trial court failed to appreciate the fact that appellant/plaintiff is in possession which was confirmed by the report of local commissioner. Appellant/Plaintiff had a good prima facie case for grant of injunction as refusal of the same would have caused hardship to the students studying in the school. The impugned order has also been assailed on the ground that the same is based upon conjectures and surmises and the impugned order has been passed merely on the aspect of relationship of landlord and tenant ignoring the possession of appellant/plaintiff. Accordingly, in the present appeal, it is prayed that impugned order be set aside and application of appellant/plaintiff be allowed.
7. In the reply filed by the respondent/defendant, it is submitted that impugned order is based upon correct facts. It is further submitted that mere possession does not constitute any legal right in the property unless and until that possession is legal. In the present case since appellant/plaintiff is a trespasser, relief of injunction was rightly refused to her. It was denied that the ld.trial court has MCA NO: 2/10 5/12 ignored the nature of the suit and order has been passed based upon conjectures and surmises. Accordingly, a prayer was made to dismiss the appeal.
8. I have heard Sh.Kamlesh Kumar, counsel for appellant/plaintiff, Sh.Anil Khosla, counsel for respondent/defendant and have carefully perused the trial court record which was summoned by this court.
9. It is settled principle of law that for the purpose of granting interim injunction, the plaintiff has to satisfy the following three ingredients:
(a) Prima facie case in his favour.
(b) Balance of convenience in his favour.
(c) Irreparable loss being caused to the plaintiff in case injunction is refused.
10. In order to show prima facie case, appellant/plaintiff is required to show that her possession in the suit property is a legal one. A person's possession is deemed to be legal one if he takes possession under contract or if initial possession is permissive one. (Reference can be made to para 22 of judgment of Delhi High Court reported as Deep Chand V Kulanand Lakhera, 140 (2007) DLT 765.) Appellant/plaintiff has averred in the plaint that on the basis of oral tenancy, she was inducted as a tenant in the suit property in the month of December, 2001 at a monthly rent of Rs. 3,000/per month and thereafter she started her school in the suit MCA NO: 2/10 6/12 property by the name of M/s. Ever Green Public School. Although there is no registered lease deed in favour of appellant/plaintiff with regard to suit property but there is no bar under the law vide which an oral tenancy of the suit property cannot be created. The question whether oral tenancy in favour of appellant/plaintiff was created in December, 2001 or not can only be decided during the course of trial when parties are allowed to lead evidence. However, at the stage of deciding the interim application, court is to be prima facie satisfied with regard to legal possession of appellant/plaintiff. The Ld.trial court committed an error in holding that documentary proof of tenancy has not been filed on record. When plaintiff has herself averred in the plaint regarding oral tenancy and non issuance of rent receipts, therefore, there was no question of there being documentary evidence of tenancy on record. The ld.trial court was required to return a finding regarding legal possession based upon material on record. There was sufficient material on record to prima facie hold the plaintiff's possession to be legal one. That the possession of appellant/plaintiff in the suit property is a legal one, has been admitted to by respondent/defendant firstly in its written statement and also in the various complaints made to the police which are dated 28.08.2002, 29.09.2002 and 04.10.2002. In the various complaints made to the police as referred hereinabove, respondent/defendant has admitted that he had engaged appellant/plaintiff in providing free education to street children for starting the school. In one of the complaint dated 04.10.2002 it is alleged by respondent/defendant that he had engaged the MCA NO: 2/10 7/12 appellant/plaintiff as a teacher for starting a school in the name of Bal Marka Verma Mukt Shiksha Kendra whereas in the month of May' 2002, he came to know that plaintiff had started a school with a different name by employing 8 other teachers. Therefore, from the written statement and aforementioned police complaints which have been filed by respondent/defendant himself, it is prima facie evident that respondent/defendant had permitted the appellant/plaintiff to run a school. Hence, appellant/plaintiff was a permissive user of suit property. Therefore, her possession is legal one. Although police complaints made by the parties against each other shows the acrimony between them but that is not sufficient to prima facie hold that possession of appellant/plaintiff of suit proper ty was not unlawful. The ld.trial court without giving a finding that appellant/ plaintiff is a trespasser, has rejected the application for injunction on the ground that appellant/plaintiff is not in peaceful possession. In my opinion, legal possession or otherwise should form the basis of granting/refusing of injunction, on which ld.trial court has not given any finding. Therefore, impugned order is un sustainable in law as the same has been passed ignoring legal pos session of appellant/plaintiff.
11. The allegations made by respondent/defendant in its police com plaint dated 04.10.2002 are prima facie not believable as respon dent/defendant has admitted in para 17 of the written statement that school opening function was organised on 17.12.2001 and even taking of photographs on 17.12.2001 was also admitted. On MCA NO: 2/10 8/12 perusing the photographs filed on record by appellant/plaintiff with regard to school opening function on 17.12.2001, it is apparent that respondent/defendant and his wife are present in the school open ing function and the name of the school i.e. M/s. Ever Green Public School is also evident in these photographs. Therefore, the assertion made by respondent/defendant in its complaint to the police dated 04.10.2002 that he came to know in the month of May'2002 that the school by a different name has been opened by the appellant/plaintiff against the wishes of respondent/defendant is not believable.
12. Hence, respondent/defendant was aware right from the inauguration of school in December, 2001 that appellant/plaintiff had opened a school for the purpose of imparting education to the children. Absence of any complaint to the police or any authority in December, 2001 with regard to alleged trespassing against the appellant/plaintiff also prima facie establishes that appellant/plaintiff was permissive user of the suit property and not a trespasser. Further the photographs filed on record by the appellant/plaintiff on the eve of Republic Day function i.e. on 25.01.2002 have also been admitted to by respondent/defendant in para 27 of its written statement which also shows that name of the school is depicted as M/s. Ever Green Public School in the photographs. Therefore, from the photographs filed on record by the appellant/plaintiff of function organized on 17.12.2001 and 25.01.2002 which respondent/defendant has admitted, it is prima facie established MCA NO: 2/10 9/12 that appellant/plaintiff was not a trespasser in the suit property but had taken the possession of suit property with the consent of the respondent/defendant and the respondent/defendant was aware that school by the name of M/s. Ever Green Public School was being run. Therefore, ld,trial court erred in holding that date of clicking the photographs is not there and that there was no material to show appellant's/plaintiff's peaceful possession.
13. Further there is report of local commissioner on record dated 02.05.2006 which also supports the possession of appellant/plaintiff in the suit property and running of school in the suit property by appellant/plaintiff and regarding the existence of toilet in the suit property. The Ld.trial court erred in not relying upon the local commissioner's report in the light of admission made by respondent/defendant with regard to his attending school functions in the months of December, 2001 and January, 2002.
14. Although it is true that there is no prima facie material on record to show existence of oral tenancy between appellant/plaintiff and respondent/defendant with regard to suit property but as discussed above, it is a matter which can be decided at the stage of trial. However, at this stage based upon the admissions made by defendant/respondent in his written statement with regard to his attending school functions in the months of December, 2001 and January, 2002 and having regard to the various complaints made by the defendant/respondent to the police dated 28.08.2002, 29.09.2002 and 04.10.2002, it is prima facie established at this MCA NO: 2/10 10/12 stage that appellant/plaintiff was not a trespasser and at the most as per the admission made by respondent/defendant, it can be said that she was a licensee in the suit property. However, it is a settled principle of law that even a licensee in the suit property can not be evicted without following the due process of law. Therefore, there is a prima facie material on record to show that appellant/plaintiff's possession into the suit property is a legal and permissive one.
15. The balance of convenience also lies in favour of appellant/ plaintiff and against the respondent/defendant as comparative hardship and inconvenience will be far greater to appellant/plaintiff than to respondent/defendant in case injunction is refused.
16. Irreparable loss will be caused to appellant/plaintiff in case injunction is refused because children studying in school will not be able to complete their studies and they will be made to leave the school midway affecting future life of children. Hence, trinity of principles for grant of injunction exists in favour of appellant/plaintiff. Hence, impugned order is unsustainable in law as same has been passed ignoring the material available on record. The impugned order is accordingly set aside. The appeal filed by appellant/plaintiff is accordingly allowed. Application filed by appellant/plaintiff u/O 39 rule 1 and 2 CPC for interim injunction is allowed and respondent/defendant is restrained from dispossessing the appellant/plaintiff from the suit property or from carrying out any construction in the suit property without following the due process of law during the pendency of the present suit.
MCA NO: 2/10 11/12
However, it is made clear that nothing expressed herein shall tantamount to expressing any opinion on the merits of the case. Appeal file be consigned to record room. TCR be sent back alongwith copy of the order.
Announced in open court (Vikas Dhull)
Dated: 05.04.2011 SCJ:RC
Dwarka/Delhi
MCA NO: 2/10 12/12