Delhi District Court
Mohd. Irfan vs . Mohan Lal Chhabra & Ors. on 2 November, 2015
Mohd. Irfan Vs. Mohan Lal Chhabra & Ors.
IN THE COURT OF SH. KISHOR KUMAR : CIVIL JUDGE12
(CENTRAL), ROOM NO.361, TIS HAZARI COURTS, DELHI
SUIT NO : 546/13
In the matter of :
Unique ID Number : 02401C0491242013
Mohd. Irfan,
S/o Late Sheikh Mohd. Ikram,
R/o 5962, Gali Babboo Khan,
Ballimaran, Delhi - 110 006. ...PLAINTIFF
VERSUS
1. Sh. Mohan Lal Chhabra,
S/o Sh. Harbans Lal Chhabra,
R/o 27, Jaipur House Colony,
Agra (UP).
2. Smt. Shashi Chhabra,
W/o Sh. Mukesh Chhabra,
R/o 30A, Single Story,
Ramesh Nagar, New Delhi.
Also At:
27, Robert Street,
Kolkata700 013 (WB)
3. Sh. Asad Saeed,
S/o Sh. Saeed Ahmed,
Shop No.5 and 6,
Part of Property No.1443,
Gali Choley Wali, Qutab Road,
CS No.546/13 Pg 1 of 18
Mohd. Irfan Vs. Mohan Lal Chhabra & Ors.
Sadar Bazar, Delhi - 110 006. ...DEFENDANTS
Date of institution : 27.09.2013
Date of judgment : 02.11.2015
SUIT FOR DECLARATION WITH CONSEQUENTIAL RELIEF OF
PERMANENT INJUNCTION
JUDGMENT
1. This is a suit for declaration with consequential relief of permanent injunction filed by the plaintiff against the defendants to declare the claim of defendant No.2 that she is not tenant in respect of suit property i.e. shop bearing Pvt. No.6 forming part of property No.1438 to 1443, Gali Choley Wali, Qutab Road, Sadar Bazar, Delhi - 110 006 on the basis of alleged documents allegedly submitted by her with various Government Departments, as null and void abinitio and that defendant No.2 has no right title or interest whatsoever in the suit property. The further relief of permanent injunction prayed for by the plaintiff is to restrain defendant No.2, her representatives, agents, CS No.546/13 Pg 2 of 18 Mohd. Irfan Vs. Mohan Lal Chhabra & Ors.
attorneys etc. from creating any hindrance, obstruction and interference in the peaceful use, occupation and possession of the suit property. A further decree of permanent injunction is also prayed for to restrain defendant No.3, his representatives, agents, attorneys etc. from subletting, assigning and parting with the possession of the suit property as shown in the site plan.
2. Briefly stated, case of the plaintiff is that Late Sheikh Abdul Mateen was the owner of immovable property bearing municipal No.1438 to 1443, situated at Iqbal Market, Gali Choley Wali, Qutab Road, Sadar Bazar, Delhi - 110 006. He expired on 11.08.1986 as bachelor leaving behind a Will dated 24.09.1980, bequeathing his aforesaid properties to his legal heirs i.e. the sons and daughters of his brother Mohd. Ikram and Mohd. Islam and others. Thereafter, those beneficiaries filed a probate petition No.62/89 before Hon'ble High Court of Delh. Vide order dated 08.08.1991, the CS No.546/13 Pg 3 of 18 Mohd. Irfan Vs. Mohan Lal Chhabra & Ors.
letter of administration was granted in favour of legatees as per Will dated 24.09.1980. Plaintiff is one of the beneficiary of the said Will dated 24.09.1980.
3. Defendant No.1 was an old tenant in respect of one shop bearing Pvt. No.6 forming part of property bearing No.1443, Gali Choley Wali, Qutab Road, Sadar Bazar, Delhi - 110 006, on a monthly rent of Rs.72/ excluding other charges (hereinafter this shop be referred to as suit property).
4. Defendant No.3 is a tenant in adjoining shop bearing No. 1443/5. Defendant No.3 asked the plaintiff whether plaintiff can transfer the tenancy rights in respect of shop bearing No.1443/6 if defendant No.1 agrees to hand over the possession of the suit property to him. Plaintiff being administrator of suit property agreed to accept the said request subject to increase of rent and clearance of all arrears.
5. On 13.11.2011, defendant No.3 made a call to the plaintiff CS No.546/13 Pg 4 of 18 Mohd. Irfan Vs. Mohan Lal Chhabra & Ors.
and asked him to reach the suit property as he was intending to visit the suit property with defendant No.1. Defendant No. 1 with his free will and consent handed over the peaceful vacant possession of the suit property to defendant No.3 surrendering the tenancy rights in favour of defendant No.3. Thereafter, plaintiff started issuing the rent receipts in favour of defendant No.3 creating a fresh tenancy.
6. Sh. Mukesh Chhabra, husband of defendant No.2 was the nephew of defendant No.1. However, defendant No.1 along with his nephew Sh. Mukesh Chhabra, husband of defendant No.2 was running the business under the partnership from the suit property, though the tenancy was in the name of defendant No.1 alone. Defendant No.1 is alleged to have also given some undertaking/declaration that neither he nor his LRs shall have any claim over the suit property. Plaintiff has never met with defendant No.2 at any point of time before 13.05.2013, when he met her in police CS No.546/13 Pg 5 of 18 Mohd. Irfan Vs. Mohan Lal Chhabra & Ors.
station Sadar Bazar on some complaint filed by defendant No.2. Defendant No.2 was never inducted as tenant in the suit property. In FIR bearing No.73/13, defendant No.2 has claimed herself to be the tenant in respect of suit property. Her such claim is false and frivolous. The documents filed by defendant No.2 with any Department are without any knowledge of plaintiff or the predecessor in interest of the plaintiff. Hence, the present suit.
7. Defendant No.1 has supported the case of the plaintiff that on 13.11.2011, he had handed over the possession of the suit property to the plaintiff as well as executed a declaration that he has paid all dues/rent of the tenanted premises.
8. Defendant No.3 also filed written statement submitting that plaintiff has filed the present suit as a counter blast to the suit of defendant No.3 titled as "Asad Saeed Vs. Shashi Chhabra @ Shashi Arora & Ors.", bearing civil suit No. 177/13 pending adjudication in the court of Ms. Shama CS No.546/13 Pg 6 of 18 Mohd. Irfan Vs. Mohan Lal Chhabra & Ors.
Gupta, Ld. Civil Judge, Central - 16, Tis Hazari Courts, Delhi. Defendant No.3 has further averred that he is tenant in the shop bearing No.1443/5, Iqbal Market, Gali Choley Wali, Qutab Road, Sadar Bazar, Delhi - 110 006, at a monthly rent of Rs.400/ and has been paying the rent regularly since 2010 to the plaintiff against receipts. After vacation of the suit premises by defendants No.1, defendant No.3 had taken on rent the suit property also on rent for a further rent of Rs. 400/ since November, 2011.
9. Plaintiff has filed replication to the written statement of the defendant No.1 and 3 denying their contents and reaffirmed and reiterated the contents of the plaint.
10.Ld. counsel for defendant No.2 appeared and sought time to file written statement but failed to do so. Later on, he on behalf of defendant No.2 stopped appearing nor filed the written statement as directed by the court. The defence of defendant No.2 has been struck off.
CS No.546/13 Pg 7 of 18 Mohd. Irfan Vs. Mohan Lal Chhabra & Ors.
11.On the basis of pleadings of the parties, following issues were framed for trial on 23.08.2014.
1. Whether plaintiff is entitled to the decree of declaration, as prayed for?
OPP.
2. Whether plaintiff is entitled to the decree of permanent injunction, as prayed for? OPP.
3. Relief.
12.Plaintiff in order to prove his case, examined himself as PW1 by way of his affidavit Ex.PW1/A. He relied on the following documents:
1. Ex.PW1/1 is deexhibited and is marked as MarkD (Colly.) which are copies of house tax receipts.
2. Ex.PW1/2 (OSR) (Colly.) is copy of probate dated 08.08.1991 along with Will dated 24.09.1980.
3. Ex.PW1/3 is site plan.
4. Ex.PW1/4 (OSR) (Colly.) are rent receipts.
CS No.546/13 Pg 8 of 18 Mohd. Irfan Vs. Mohan Lal Chhabra & Ors.
5. Ex.PW1/5 (OSR) is copy of surrender letter dated 13.11.2011.
6. Ex.PW1/6 deexhibited and is marked as MarkB is photocopy of Voter I Card of Sh. Mohan Chhabra (defendant No.1).
7. Ex.PW1/7 deexhibited and is marked as MarkC is photocopy of trade licence.
13.On the other hand, defendant No.3 has examined himself as DW3 by way of his affidavit in evidence Ex.DW3/A. He has relied on the following documents:
1. Ex.DW3/1 is photocopy of rent receipt No.128 dated 01.10.2010.
2. Ex.DW3/2 is photocopy of English Translation of rent receipt No.128 dated 01.10.2010.
3. Ex.DW3/3 is photocopy of rent receipt No.139 dated 10.04.2013.
4. Ex.DW3/4 is photocopy of English Translation of rent CS No.546/13 Pg 9 of 18 Mohd. Irfan Vs. Mohan Lal Chhabra & Ors.
receipt No.139 dated 10.04.2013.
5. Ex.DW3/5 is photocopy of English Translation of rent receipt No.157 dated 10.03.2011.
6. Ex.DW3/6 is photocopy of English Translation of rent receipt No.160 dated 15.04.2011.
7. Ex.DW3/7 is photocopy of English Translation of rent receipt No.161 dated 12.06.2011.
8. Ex.DW3/8 is photocopy of English Translation of rent receipt No.162 dated 13.11.2011.
9. Ex.DW3/9 is photocopy of English Translation of rent receipt No.162.
10.Ex.DW3/10 is photocopy of English Translation of rent receipt No.163 dated 13.11.2011.
11.Ex.DW3/11 is photocopy of English Translation of rent receipt No.165 dated 20.02.2013.
12.Ex.DW3/12 is photocopy of English Translation of rent CS No.546/13 Pg 10 of 18 Mohd. Irfan Vs. Mohan Lal Chhabra & Ors.
receipt No.166 dated 20.02.2013.
13.Ex.DW3/13 deexhibited and marked as MarkA which is the photocopy of complaint dated 25.04.2013.
14.Ex.DW3/14 is photocopy of complaint to Delhi Police Commissioner.
15.Ex.DW3/15 (colly.) are postal receipts.
14.DW4 is Sh. Rajender Kumar, Naib Nazir from the court of Ms. Shama Gupta, Ld. Civil Judge - 03, Central, Tis Hazari Courts, Delhi. He has brought the original rent receipts kept in file of suit bearing No.170/13 titled "Asad Saeed Vs. Shashi Chhabra and Ors." pending in the aforesaid court.
15.Few last order sheets reveal that none appeared on behalf of defendant No.1 also.
16.I have heard ld. counsel for plaintiff, ld. counsel for defendant No.3 and have carefully gone through the record.
17.My issue wise findings as follows:
CS No.546/13 Pg 11 of 18 Mohd. Irfan Vs. Mohan Lal Chhabra & Ors.
ISSUES NO.1 AND 2 Whether plaintiff is entitled to the decree of declaration, as prayed for? OPP.
Whether plaintiff is entitled to the decree of permanent injunction, as prayed for? OPP.
18.Both these issues are taken up together as they are interconnected and intermingled. Vide the relief of declaration, plaintiff is seeking that it should be declared that the claim of defendant No.2 claiming herself to be the tenant in respect of the suit premises is null and void as also any documents filed by her with any authority in that regard be also declared as null and void. I have carefully gone through the documents filed and proved by the plaintiff.
19.As per para No.11 of the plaint, in FIR bearing No.73/13 PS Sadar Bazar, defendant No.2 (being complainant) has claimed herself to be the tenant in the suit property. Record reveals that plaintiff has not filed nor has proved on record the said FIR bearing No.73/13 PS Sadar Bazar. Even if this CS No.546/13 Pg 12 of 18 Mohd. Irfan Vs. Mohan Lal Chhabra & Ors.
court goes with the submission of plaintiff that defendant No.2 has claimed herself to be the tenant in FIR No.73/13 PS Sadar Bazar, still those are merely the allegations. If that FIR No.73/13 case proceeds any further, defendant No.2 being complainant in that FIR, has to prove her allegations, if any, leveled against the plaintiff herein that she is tenant in the suit property. Merely because an FIR has been registered by the police on the complaint of defendant No.2 on her whatever allegations, the court cannot pass any order regarding her allegations whether they are right or wrong. Plaintiff shall have opportunity to put his case in that FIR case in case he is summoned, but certainly the plaintiff cannot seek the relief of declaration as prayed for by him in the present case.
20.So far as another part of relief of declaration is concerned that the documents, if any, filed by defendant No.2 with government authorities be also declared as null and void, CS No.546/13 Pg 13 of 18 Mohd. Irfan Vs. Mohan Lal Chhabra & Ors.
this prayer as well as the pleadings in this regard are vague and ambiguous. Plaintiff has neither filed any such document on record nor he has given the particulars of any such documents on record. Plaintiff has also not proved with what government authorities, what documents have been filed by her. In the prayer No.A, there are only the "alleged documents" "allegedly submitted" by defendant No.2 with various departments which are prayed to be declared as null and void. Until and unless the plaintiff tells about those documents, the nature of the documents, their particulars and with what department she had filed, no relief of declaration can be passed in favour of the plaintiff.
21.In Para No.14 of the plaint, plaintiff has further submitted that they had already filed a suit bearing No.09/10 pending in the court of Sh. V.K. Gulia, Ld. Civil Judge, Delhi, and in the said suit, Ld. Civil Judge was pleased to allow the application of Mohd. Rizwan and from this fact, defendant CS No.546/13 Pg 14 of 18 Mohd. Irfan Vs. Mohan Lal Chhabra & Ors.
No.2 was neither a tenant nor in possession of the suit property at any point of time. Even otherwise, as per record of MCD, defendant No.1 was shown as tenant in the records. Therefore, no question arises that defendant No.2 was tenant in respect of the suit property. Therefore, it is imperative in the interest of justice that it may be declared that claim of defendant No.2 regarding her tenancy in respect of suit property and hence defendant No.2 has no right title or interest whatsoever in the suit property.
22.After going through para No.14 of the plaint, this court is of the opinion that whatever the claim and the pleadings on the basis of which present suit has been filed by the plaintiff, he should contest/plead these things before the concerned court where suit bearing No.09/10 is pending disposal. Separate suit that defendant No.2 is not the tenant in respect of suit property is against the principle of curbing the multiplicity of litigation. Be that as it may, the prayer of CS No.546/13 Pg 15 of 18 Mohd. Irfan Vs. Mohan Lal Chhabra & Ors.
declaration prayed for by the plaintiff is not legally grantable.
23.Admittedly, as on today, defendant No.3 is in possession of the suit property as tenant of the plaintiff. In the cause of action clause, no particular date has been given by the plaintiff as to when defendant No.2 threatened to interfere in the peaceful occupation of the suit property. There is no dispute regarding taking over the suit property by defendant No.3 as tenant after vacation of the same by defendant No.1. No incident has been cited in the plaint as if ever defendant No.2 had obstructed the plaintiff or defendant No.3 in peaceful and useful occupation of the suit. It is only that plaintiff alleges of having lodged some complaint by defendant No.2 with local police on the basis of which some FIR has been registered. Mere registration of the FIR with the police by someone cannot be construed as interference in the peaceful use and occupation of the concerned property.
CS No.546/13 Pg 16 of 18 Mohd. Irfan Vs. Mohan Lal Chhabra & Ors.
24.Now, coming to prayer No.C of the plaint that defendant No. 3 be restrained from subletting, assigning and parting with the possession of the suit property, record reveals that on dated 30.09.2015, ld. counsel for defendant No.3 had stated that defendant No.3 is not going to create any third party interest nor they have any such intention to sublet the same. I have gone through the written statement of defendant No.3 but nowhere the defendant No.3 has stated that he ever threatened the plaintiff for subletting the suit property. Entire written statement of defendant No.3 pertain to defendant No.2 that she had visited on 25.04.2013 and threatened defendant No.3 of false implication in criminal cases in case defendant No.3 fails to hand over the possession of the suit property. Defendant No.3 is not the plaintiff in the present suit. Plaintiff has filed the suit without any cause of action and basis. The same is based on conjuctures and surmises that defendant No.2 has filed CS No.546/13 Pg 17 of 18 Mohd. Irfan Vs. Mohan Lal Chhabra & Ors.
alleged documents allegedly claiming herself to be the tenant with various government departments. The suit is found to be not maintainable and hence the plaintiff do not deserve to any relief prayed for.
RELIEF
25.In view of my discussion on the issues herein above, suit of the plaintiff is hereby dismissed with no orders as to costs. Decree sheet be prepared accordingly.
File be consigned to Record Room.
Announced in the open court (KISHOR KUMAR)
on 02.11.2015 CJ12/CENTRAL/DELHI
CS No.546/13 Pg 18 of 18