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Delhi District Court

Ms. Mamta Anand vs Ms. Ravinder Kaur on 22 November, 2014

  IN THE COURT OF  ANURAG  SAIN, ADJ­03 (EAST), 
          KARKARDOOMA COURTS, DELHI
RCA No.: 91/14 
 Unique Case ID No.  02402C0258002014 

Ms. Mamta Anand
W/o Sh. Sanjay Anand
R/o L­72, Sabzi Mandi, 
Laxmi Nagar,
Delhi­110092
                                                         ...........Appellant
Versus 

Ms. Ravinder Kaur
W/o Sh. Joginder Singh
R/o H. No. 3854, 
Near Kali Mata Mandir,
G.T. Road, Tis Hazari,
Delhi­110054.                                                                
                                                         .........Respondent

Date of institution of appeal             : 28.08.2014
Date of reserving judgment                : 14.11.2014
Date of pronouncement                     : 22.11.2014

JUDGMENT 

1. The present appeal under Order 43 r/w Section 151 CPC is filed against the order dated 31.07.2014 in Civil Suit no. 41/2014 titled as "Ravinder Kaur Vs. Mamta Anand", whereby the ld. Trial Court had allowed the application under Order 39 Rules 1 and 2 CPC filed by the RCA No.: 91/14 Page 1 of 14 respondent/plaintiff.

2. Briefly stated facts of the case are that the respondent has filed a suit under Section 6 of Specific Relief Act before the ld. trial court on the ground that the appellant let out a shop bearing no.228, C.R. Road, Lalita Park, Laxmi Nagar, Delhi to the respondent on security deposit of Rs.Three Lac and at a monthly rent of Rs.9,000/­ wherein she started a beauty parlour business in January 2012 under the name and style of 'Impressions Beauty Saloon'. It has been further averred that the appellant has assured her to let her out the shop for five years vide a rent agreement to be reduced to writing. It has been further averred that for preparation of the rent agreement, appellant took Rs.2,500/­ from her in January, 2012 and in the last week of January 2012, appellant and her husband came on her shop with a draft copy of the rent agreement and obtained her signatures thereon without supplying her a copy thereof. Respondent further averred that she invested around Rs. Four Lac in her beauty parlour on fitting and interior designing. It has been further averred that the name of respondent along with details of her beauty parlour are there on few websites. Respondent has further averred that her business has RCA No.: 91/14 Page 2 of 14 flourished from 2012 till January, 2014 and earned goodwill and reputation in the market; Respondent has also engaged four female employees in her parlour and started to expand her business by keeping variety of handbags, wrist, hair clips, clutches and ladies clothes; Respondent got her parlour business registered with the Department of Labour, Government of Delhi on 30.12.2013. Respondent had been regularly paying monthly rent to the appellant and also used to pay electricity bills on time through her bank account but the landlady never issued any rent receipt to her; Respondent alleged that on 15.02.2014 at about 3.00 p.m. While she was away, appellant along with 10­50 anti social elements came to her shop, pushed out her customers and employees and locked it. On 16.02.2014, when the respondent enquired from the appellant about the reasons for the incident that took place a day before, the former told the latter that she had sold out the shop. On 1702.2014, the appellant and her agents allegedly brok the display board which was placed above the shop. On these premise, the respondent has filed the suit against the appellant.

3. In the written statement filed by defendant/appellant RCA No.: 91/14 Page 3 of 14 before the Ld. Trial Court, defendant/appellant has vehemently refuted the averments of the respondent about taking the shop on rent. It has been averred that in fact it was the appellant who was running the beauty parlour from the shop in question and that the respondent approached her merely for employment as a beautician and she kept her as beautician­cum­manager in the parlour sometime in mid 2012 as the respondent told her that she had some experience in beauty parlour work. It has been further averred that on good faith and trust she left the whole responsibility of beauty parlour on her staff. She has further averred that the respondent very deceptively got the beauty parlour registered in her own name in order to grab some money from her and also got prepared some websites. The appellant has further averred that she handed over whole responsibility of the shop i.e. all day to day affairs etc. on good faith on the respondent but the respondent breached her trust and as such, she deposited electricity bills from shop's income and not from her own income. The appellant further averred that there was no question of executing any rent agreement as the respondent used to work under her employment. The appellant has averred that the RCA No.: 91/14 Page 4 of 14 respondent earned nothing except the salary provided to her. Appellant has further averred that due to the respondent's non­cooperation and her deceptive activities, the appellant suffered losses and was compelled to close the beauty parlour shop and closed the shop on 15.02.2014. On these premise, the appellant has sought dismissal of the suit.

4. The plaintiff/respondent also filed an application under Order 39 Rules 1 and 2 read with Section 151 CPC before the Ld. Trial Court praying therein for grant of an ad­ interim exparte relief to the respondent in the form by directing the appellant to remove the lock from the suit property and allowing the respondent to enter therein and also direct the appellant to handover all her goods/articles along with the cash to the respondent and also prayed that the appellant be restrained from selling, mortgaging the suit property or creating any third party interest till the pendency of the present suit and also to restrain the agents to create any sort (sic. sort) of nuisance in the possession of the respondent in living the suit property.

5. Reply the said application was filed appellant/respondent wherein the appellant/respondent has denied the averments made in the application.

RCA No.: 91/14 Page 5 of 14

6. The Ld. Trial Court vide order dated 31.07.2014 allowed the application Under Order 39 Rules 1 and 2 read with Section 151 CPC of the respondent and against the said order, the instant appeal has been filed by the appellant.

7. The appellant has filed the instant appeal on the grounds that the Ld. Trial Court has not appreciated that the requisite court fee in terms of Section 7 (xi) (e) of the Court Fee Act 1870 was not paid by the respondent and thus the respondent was not entitled to any accommodation from the court; The Ld. Trial Court has not appreciated that no application under Order 39 Rules 1 and 2 CPC was maintainable for the relief prayed in the aforesaid application as order 39 CPC operates in those cases in which temporary injunction may be granted and thus granting of relief is per se bad in law. The Ld. Trial Court has failed to appreciate that the respondent has not supported her claim as a tenant with any document or at least as a licencee in the suit property and the Ld. Trial court has erred in granting the status of licencee to the respondent. It has been further averred that equating an employee with a licencee is per se bad in law and as such the impuged order is liable to be set aside. The Ld. Trial Court has failed to appreciated that the respondent has RCA No.: 91/14 Page 6 of 14 failed to prove the payment of rent in any manner whatsoever and the Ld. Trial Court has erred in holding that the respondent was in possession of the suit property. On these premise, the appellant has prayed for the setting aside of the impugned order dated 31.07.2014.

8. Trial Court Record also called.

9. I have heard Ld. counsels for the parties and perused the record.

10.During the course of proceedings counsel for the respondent argued that the present appeal is not maintainable before this court and the remedy lies by way of revision. He further argued that the present suit is under section 6 of the Specific Relief Act, 1963 Section 63 (3) of the same provisions specifically prohibits any appeal or review of any such order or decree passed in the suit filed under section 6 of the Specific Relief Act, 1963. In support of the same the counsel for the respondent has relied upon judgments.

11. On the contrary, counsel for the appellant submitted that the present appeal is maintainable before the court as the present appeal is against the orders of Order 39 Rule 1 and 2 CPC for which there is a specific remedy under Order 43 CPC. He argued that this appeal is not against RCA No.: 91/14 Page 7 of 14 the order or judgment under section 6 of the Specific Relief Act, 1963 and is filed against the orders passed on the application under Order 39 Rule 1 and 2 CPC, though passed in the suit under section 6 of the Specific Relief Act, 1963.

12.Besides the above the parties have addressed arguments on the merits of the matter. Before coming to the merits of the matter, the court find it proper to answer the objection/averments so made by the counsel for the respondent as it goes to the very jurisdiction of this court.

13.Ld. Counsel for the respondent raised the question that appeal is not maintainable and the appellate Court had no jurisdiction to try and entertain any order passed in the aforesaid proceedings.

14. In order to appreciate the scope and object of Section 6 of the Specific Relief Act. The same is read as follows:

Section 6: (1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit. (2) No suit under this Section shall be brought

(a) after the expiry of six months the date of dispossession; or

(b) against the Government.

(3)No appeal shall lie from any order or decree passed in RCA No.: 91/14 Page 8 of 14 any suit instituted under this Section, nor shall any review of any such order or decree be allowed. (4) Nothing in this Section shall bar any person from suing to establish his title to such property and to recover possession thereof.

15.The counsel for the respondent has relied upon the following judgments Smt. Hoshiari Devi & Ors. vs. Sh. Jagat Singh & Anr. in CM(M) no. 2834­39 of 2005 decided on 09.11.2006 , Ramesh Devchand Pala vs. Jayantkumar Gordhandas Madani decided on 06.02.1998 (AIR 1998 Guj 120), Madhukarbhai Trambalkaklal Shahthro 'Poa Jigneshbhai M. Shah and 2 Ors. vs. Sterling Bopal City co­op. Housing Soc. thro' and 4 Ors. decided on 08.08.2008 MANU/GJ/0561/2008, AIR 1988 SC 424.

16.The counsel for the appellant has relied upon the judgment of High Court of Bombay in the case titled as Smt. Rajeshree Pravin Sonwane & Ors. vs. Sh. Arvind Kumar Fatechand in appeal from order no. 850 of 2013 with civil application no. 1059 of 2013.

17. The Hon'ble Supreme Court in Vanita M Khanolkars vs. Karuna M Pai & Ors. (Supra) has held that in para 2 of the judgment:

RCA No.: 91/14 Page 9 of 14

"Learned Single Judge passed an order dated 15.11.1994 in suit no. 411/93 decreeing the suit in terms thereof. When an appeal was carried to the Division Bench of the High Court against the said order, it was contended on behalf of the respondents that the appeal was not maintainable in view of sub­sec (3) of S.6 of the Act. The said provision certainly bars any appeal or revision against any order passed by the court under S.6 of the Act. To that extent the decision of the Division Bench cannot be found fault with...."

in

18.The Hon'ble Supreme Court of India Sanjay Kumar Pandey vs. Gul Bahar Sheikh & Ors. (Supra) has held in para 4 that:­ "A suit under Section 6 of the Act is often called a summary suit in as much as the enquiry in the suit Under Section 6 is confined to finding out the possession and dispossession within a period of six months from the date of the institution of the suit ignoring the question of title. Sub­ section (3) of Section 6 provides that no appeal shall lie from any order of decree passed in any suit instituted under this section. No review of any such order or decree is permitted. The remedy of a person unsuccessful in a suit under Section 6 of the Act is to file a regular suit establishing is title to the suit property and in the even of his succeeding he will be entitled to recover possession of the property notwithstanding the adverse decision under Section 6 of the Act, the remedy of unsuccessful party is to file a suit based on title. The remedy of filing a revision is available but that is only by way of an exception; for the High Court would not interfere with a decree or order RCA No.: 91/14 Page 10 of 14 under Section 6 of the Act except on a case for interference being made out within the well­settled parameters of the exercise of revisional jurisdiction under Section 115 of the Code.

19.The counsel for the respondent has relied upon the judgment of Our own High Court titled as Smt. Hoshiari Devi & Ors. vs. Sh. Jagat Singh & Anr. wherein it has been held in paras 3 and 4 that:

"3.It has to be appreciated that the suit filed under Section 6 of the said Act is to be governed by the provisions of that Section as it is a suit of a special nature. Sub­Section (3) of Section 6 of the said Act provides that no appeal lies from any order of decree passed in any suit instituted under this Section, nor shall any review of any such order or decree be allowed".

"4.Learned counsel for the petitioner contends that the appeal could not have been maintained by the first appellate court in view of the pronouncement of the Apex Court in Sanjay Kumar Pandey & Ors. vs. Gulbahar Sheikh & Ors. (2004) 4 SCC 664. The Supreme Court has held that in view of provisions of sub­Section (3) of Section 6 of the said Act, the remedy of an aggrieved party lies in filing a revision under Section 115 of the said Code or a regular suit based on title".

Further it has been held in paras 8 to 11 that: RCA No.: 91/14 Page 11 of 14

"8.On consideration of the submission of the learned counsel for the parties I am of the view that there is no doubt that when a plaint is rejected by a Court exercising powers under Order 7 Rule 11 of the said Code, the same falls within the definition of the decree under Section 2(2) of the said Code and only an appeal would be maintainable. In this behalf reference may be made to the judgment of the learned single Judge of this Court in Kartar Singh Vs. Smt. Shanti & Ors. 110 (2004) DLT 156 which follows the view taken in Shamsher Singh Vs. Rajinder Prashad & Ors. AIR 1973 SC 2384. This would however be the position in case of an ordinary suit".

"9.The distinguishing factor in the present case is that the suit has been filed under the provisions of Section 6 of the said Act. Learned Counsel for the respondent, thus, seeks to point out that the suit was filed under Section 6 of the said Act but simultaneously a decree for injunction was also prayed. However, it cannot be lost sight of that Section 6 of the said Act is a special procedure created to try a particular nature of suits where a party is dispossessed from the suit property without due process of law and cannot be clubbed with any other relief. Section 6 of the said Act reads as under:

"6. Suit by person dispossessed from immovable property. (1) If any person is dispossessed, without his consent, of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be RCA No.: 91/14 Page 12 of 14 set up in such suit.

(2) No suit under this section shall be brought­

(a) after the expiry of six months from the date of dispossession; or

(b) against the Government.

(3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.

(4) Nothing this section shall bar an person from suing to establish his title to such property and to recover possession thereof."

"10 Sub­Section 3 of Section 6 of the said Act clearly bars an appeal from any decree or order passed under the said provision. In view of the judgment of the Apex Court in Sanjay Kumar Pandey & Ors. case (supra) it is no more res integra that the remedy from such an order or decree would be a title suit or revision under Section 115 of the said Code. Since the rejection of the plaint results in a deemed decree and the suit is under Section 6 of the said Act, the remedy of the respondents was only by filing a revision under Section 115 of the said Code".

"11. In view of the aforesaid position, the impugned order cannot be sustained and is set aside. It is held that the appeal filed by the respondents was not maintainable and the remedy of the respondents was only by filing a title suit or revision under Section 115 of the said Code. It will thus be now for the respondents to take recourse to the appropriate legal remedy in accordance with RCA No.: 91/14 Page 13 of 14 law aggrieved by the impugned order of the trial court dated 13.4.2004".

20. The judgment Sh. Rajshree Praveen Sonawane & Ors. vs. Arvind Kumar Fatechand (Supra) so relied upon by the counsel for the appellant does not applies in the present case.

21. Appeal is a right created under the statute. If there would have been no specific provision for an appeal, no appeal could have been preferred. Where there is a clear provision as in Section 6(3) that an appeal shall not lie, appellate Court could not have entertained the same.

22.The facts of the present case viz a viz the ratio of the judgment in Hoshiyari Devi Case (Supra) and the law as settled by the Hon'ble Supreme Court in the judgment so cited above, the present appeal is not maintainable and the same is hereby dismissed.

23. The Trial Court file be sent along with copy of this order. File be consigned to record room.

Announced in the open court On 22.11.2014 ( Anurag Sain) Addl. District Judge­03 (East) Karkardooma Courts, Delhi RCA No.: 91/14 Page 14 of 14 RCA No.: 91/14 22.11.2014 Present:­ None.

Vide separate judgment announced in the open court today, the present appeal is not maintainable and the same is hereby dismissed. The Trial Court file be sent along with copy of this order. File be consigned to record room.

(Anurag Sain) ADJ­3, East, Karkardooma Court, Delhi/22.11.2014 RCA No.: 91/14 Page 15 of 14