Delhi District Court
(Deceased vs Sh. Vishnu Dutt Tiwari on 26 July, 2011
IN THE COURT OF MS SWATI KATIYAR CIVIL JUDGE III TIS HAZARI COURTS
DELHI
SUIT NO. 46/04
DATE OF INSTITUTION : 11.02.2004
DATE ON WHICH RESERVED : 05.07.2011
DATE OF DISPOSAL : 26.07.2011
SH. KARAMVIR BHANDARI
S/O LATE SH. BASTI RAM
R/O H-4, RAJOURI GARDEN
NEW DELHI.
(DECEASED PLAINTIFF THROUGH HIS LRS i.e. )
1 SMT SWARAN BHANDARI
2 DR. ALOK BHANDARI
3 SH. AJAY BHANDARI
ALL RESIDENT OF
R/O H-4, RAJOURI GARDEN
NEW DELHI. .... PLAINTIFF
VS
SH. VISHNU DUTT TIWARI
S/O SHRI RAJPAL
R/O H. NO. A-2B/55-C
PASCHIM VIHAR
NEW DELHI ..... DEFENDANT
-:1:-
JUDGMENT
1. The present suit was filed by the plaintiff seeking permanent injunction against the defendant. During the course of proceedings, plaintiff had died leaving behind Smt. Swaran Bhandari, Dr. Alok Bhandari and Sh. Ajay Bhandari as his Legal Representatives who were impleaded as parties to the present suit vide order dated 09.08.2010. Briefly stated the case of the plaintiff was that he was the owner/ landlord of property bearing no. H-4, Rajouri Garden, New Delhi and one of the shop as shown in red color in the site plan (hereinafter referred to as 'suit property) was let out to the defendant at a monthly rent of Rs. 125 in April, 1970 and on the date of filing the suit, the rent was Rs. 150/- per month.
2. It is submitted on behalf of the plaintiff that the defendant was very irregular towards the payment of rent due to which the plaintiff had to file an eviction petition against the defendant which was allowed and the appeal preferred by the defendant was also dismissed. The defendant was given the benefit of Section 15(2), Delhi Rent Control Act and the defendant has been sending the rent @ Rs. 150/- p.m to the plaintiff through money orders.
3. It is further submitted that after the decision of Ld. Rent Control Tribunal, defendant was not working in the suit property and the same kept lying locked for a number of years, though the defendant kept on paying rent to avoid the case of second default. It is submitted that about 6/7 months prior to the filing of the suit, defendant had started opening the suit property and is carrying on the business of ladies clothes in the said shop.
4. Plaintiff further submitted that the defendant had been threatening him that the plaintiff should give him a huge amount or else the defendant would hand over -:2:- the possession of the suit property to some other person. It is further submitted that in case the defendant hands over the possession of the suit property then the same would cause irreparable loss and injury to the plaintiff and would result in multiplicity of litigations. It is submitted that the said threat was given on a number of occasions.
5. It is further submitted on behalf of the plaintiff that the defendant is also threatening the plaintiff that he will cover the open space in front of the shop and will raise a permanent structure over there and even place a door/ shutter in order to increase his space. It is submitted that the defendant has no right to raise any such construction in front of the shop.
6. Thus, feeling aggrieved, the plaintiff has filed the present suit seeking relief that defendant be restrained from covering the open space in front of his shop as shown as ABCD in the site plan. It is further prayed that defendant be restrained from subletting, assigning or parting with the possession of the suit property to some other person.
7. Per Contra, defendant submits that the suit is false, frivolous and vexatious as is apparent from the suit itself since the plaintiff has shown the threats in the plaint at para 11 on 05.02.2004 whereas the suit has been typed in the month of January, 2004, application and affidavit in January 2003 and the counsel has signed on 10.02.2003. It is submitted that the suit has been filed with ulterior motive to compel the defendant to surrender the shop in one way or the other since the son of the plaintiff Dr. Alok Bhandari is having a medical clinic on the back side of the shop and he wanted to have a passage of approximately 3 ft. from the shop of the defendant but when the defendant refused to oblige him, then the present suit was filed.
-:3:-8. Defendant further submits that the plaintiff had also filed a suit for eviction on the ground of non-payment of rent inspite of the fact that the defendant has been tendering the rent regularly to the plaintiff and also sending the same by money order and the rent stands paid upto 31st of March, 2004.
9. Defendant submits that the plaintiff has not filed the correct site plan as he has shown open space in front of all the three shops while in shop no.3 of the southern side, there is no open space. The same is fully constructed in open space and closed by shutter, there is no open space at all. The shop no.2 is also covered temporarily and shop no.1 is covered by Tirpal and other material in order to take shelter from rain and sunlight. The alleged open space is fully divided by walls as shown in the map. Defendant further submits that he has been running the business of stitching and sale of the ladies suit under the name and style of SENCIFIC and the shop has never remain closed.
10. Defendant further submits that he never inclined to hand over the possession of the suit property to any person or threatened the plaintiff that he will cover the open space in front of his shop with permanent structure and place the door/ shutter in order to increase the space. It is submitted that the defendant never wanted to make any construction in the open space in his tenancy premises. The defendant has never threatened to sublet, assign or otherwise part with the possession. On these counts, it is submitted that the suit merits outright dismissal.
11. Replication was filed denying the contents of the written statement and reiterating the plaint. On completion of pleadings, following issues were framed on 04.08.2005:
(i) Whether the plaintiff has not come to the court with clean hands?-:4:-
OPD
(ii) Whether the plaintiff has cause of action in his favour to file the present suit? OPP
(iii) Whether the plaintiff is entitled for the relief of permanent injunction as prayed for in the plaint? OPP
(iv) Relief, if any.
12. In evidence, plaintiff examined himself as PW1 and tendered site plan as Ex. PW1/1. Defendant examined himself as DW1 and tendered documents as Ex. DW1/1 and Ex. DW1/2. Ex. DW1/1 is the complaint dated 06.03.2004 to the SHO P.S. Rajouri Garden and Ex. DW1/2 is the complaint dated 27.02.2004 to the SHO PS Rajouri Garden.
13. Written submissions were filed by the plaintiff and oral arguments were advanced by Sh. T.S.Upadhyay, Ld. Counsel for the defendant. After considering the submissions and perusing the record carefully, my issuewise finding is as follows:
Issue no. 1, 2 and 3.
The issues are decided together since the factual matrix involved is common to all the issues.
Ld. Counsel for the defendant has argued that the suit has been filed vexatiously which is apparent from the plaint and the affidavit supporting the plaint. As per the plaint, cause of action arose firstly on 16.01.2004, when the defendant tried to cover the open space in front of the shop of plaintiff as shown as ABCD and on the same day, defendant threatened to part with the possession of the suit property. Cause of action also arose on 05.02.2004, when the defendant refused to listen to the plaintiff. The plaint bears the signature of the plaintiff bearing the -:5:- date of 10.02.2003 at point 'A'. The affidavit states that the same has been verified on 10.01.2003 and has been attested on 10.02.2004. PW 1 in his cross examination admits that the date mentioned on the plaint is 10.02.2003 at point 'A' and that he had signed the plaint on 10.02.2003 and his signatures appear at point B and C. PW1 also admitted the affidavit dated 10.01.2003 as correct and that the same was signed by the plaintiff at mark D and E on 10.01.2003. PW1 categorically stated that his counsel and he had signed the plaint and affidavit on the same day which is mentioned on the affidavit as well as the plaint. Thus, there are apparent contradictions in the plaint itself with regard to the dates. If the cause of action arose in the month of January, 2004, then it is inexplicable as to how the plaint was drafted prior to that in the year 2003. This is an anomaly which remained unexplained by the plaintiff.
With regard to the threat of parting with the possession or creating permanent structure in the suit property, Ld. Counsel for the defendant argued that no such threat was ever given to the plaintiff by the defendant. To determine this point of controversy, it would be pertinent to refer to the testimony of the witnesses for a while. PW1 in his cross examination states that the defendant has been his tenant since last more than 25-27 years and all the shops shown in the site plan Ex.PW1/1 are correct. PW1 admitted that on the shop mark X in Ex. PW1/1, the front portion is covered by permanent building and in other shops there is no chappar and Tripal. PW1 also deposed that the shops Y and Z were covered by Tripal but at present they are not covered. PW1 again stated that shop Z was never covered with Tripal or chapper. PW1 stated, "The shop mark Z in Ex. PW1/1 might be covered but it is not clear to me in photograph Ex. PW1/D1 alongwith negatives...........This is correct that the defendant has never threatened me at any point of time as he is not coming to shop and attending the same. ....."-:6:-
Thus, PW1 is not able to state categorically as to whether the shop of the defendant is covered with tripal or chapper or whether the same is lying open. Moreover, in a suit for permanent injunction, the element of threat is very crucial, but PW1 has categorically stated that the defendant had never threatened him as the defendant is not coming to the shop.
DW1 in his cross examination states that he was let out a shop including the front portion which was lying open and he was asked by the landlord to cover the same. DW1 expressed inability to produce any document to show that the landlord had allowed him to cover the open space. DW1 categorically stated, "It is correct that the open area in front portion of the shop is open and is still lying open. vol. I had covered the same with the temporary shed to protect from sun and rain. I also lodged a report when the landlord removed the same. Report is already on record..."
Thus, the sole grievance of the plaintiff with respect to the shop is that the defendant is trying to cover the open space by raising permanent construction. However, there is no evidence on record which could fortify the apprehension of the plaintiff. There is no averment in the plaint or the evidence that the defendant had brought construction material for raising unauthorized permanent construction in the suit property. There is no photograph on record which could show that defendant had raised any permanent construction in the suit property. Putting a Tripal on the shop cannot be said to be a permanent structure. Moreover, the photographs clearly show that the other shop adjacent to the shop of the defendant is covered with a Tripal and the goods of the defendant are lying in the open. Putting a Tripal may become necessary for protecting the goods against rain and sun but it cannot be said that defendant has been raising any permanent construction.-:7:-
Further, no police complaint was ever lodged by the plaintiff against the defendant with regard to the alleged threats given by the defendant to the plaintiff. Moreover, plaintiff had himself admitted in his cross examination that no threat was given by the defendant since he was not coming to the suit property.
Thus, first of all there is anomaly in the dates when the plaint was filed and when the cause of action arose. Secondly, plaintiff admits that no threat was given by the defendant. Thirdly, there is no evidence on record to show that the defendant has raised or ever tried raising any permanent construction over the suit property. Mere allegations of threats without any evidence would not suffice for grant of permanent injunction. Plaintiff ought to have proved the same by some cogent evidence. But apart from the testimony of the plaintiff, there is nothing on record which could substantiate the pleas of alleged threats.
Thus, in view of the above discussion, the issues are decided against the plaintiff.
Issue no.4 In view of the discussion under preceding issues, the issue is decided against the plaintiff. The suit of the plaintiff is dismissed. Parties to bear their own costs. Decree sheet be prepared. File be consigned to Record Room. Announced in the Open Court today i.e. 26.07.2011 (Swati Katiyar) CJ (West)III/Delhi 26.07.2011 -:8:-