Delhi District Court
Sh. Gulshan Kumar Sethi vs Sh. Rajesh on 8 January, 2019
IN THE COURT OF SH. DHEERAJ MITTAL :CIVIL JUDGE 02 :
CENTRAL DISTRICT : ROOM NO. 354A : THC : DELHI.
Old CS No. 154/13
New CS No. 96666/16
1. Sh. Gulshan Kumar Sethi
2. Sh. Subhash Chander Sethi
Both Sons of Late Sh. Rattan Chand Sethi,
R/o. 17/1, Shakti Nagar,
Delhi 110007. .........Plaintiffs.
VERSUS
Sh. Rajesh
S/o. Late Sh. Deep Chand,
R/o. BH509, East Shalimar Bagh,
Delhi 110088.
2nd Address :
17/1, Shakti Nagar,
Delhi 110007. .........Defendant.
Date of Institution : 12.12.2013
Reserved for Judgment : 04.12.2018
Date of Judgment : 08.01.2019
Final Judgment : Suit Decreed.
(Suit for Permanent Injunction, Mandatory Injunction and for Recovery of
Arrears of License Fee / Damages).
JUDGMENT
1. The present suit has been filed by the plaintiffs against the CS No.96666/16 Gulshan Kumar Sethi & Anr. Vs. Rajesh 1 of 16 defendant with the following averments: 1.1. The plaintiffs are the owners of the property No. 17/1, Shakti Nagar, Delhi110007. Late Sh. Deep Chand, father of the defendant was given one shop/ aata chakki on the ground floor of the aforesaid property on license basis by the previous owner. The shop/ aata chakki is referred to as licensed premises in short hereinafter and the same has been shown in the red colour portion in the site plan Ex.PW1/D7. There was some settlement dt. 07.12.1972 effected between Late Sh. Deep Chand and the previous owner of the licensed premises. The said settlement dt. 07.12.1972 is not disputed by the parties. The terms and conditions of the settlement dt. 07.12.1972 are also not disputed by the parties. It is further the case of the plaintiffs that since the defendant made default in payment of the license fees and is in arrear of the license fees for a period of more than 3 months, the license stood determined without any notice, as per Clause 5 of the Settlement dt. 07.12.1972. It is further stated by the plaintiffs that license fees has been lastly paid only upto September, 2004.
1.2. It is further the case of the plaintiffs that one civil suit for permanent injunction was filed by Late Sh. Deep Chand against Sh. Ramesh Chand Sethi, brother of the plaintiffs and in the said suit, Sh. Ramesh Chand Sethi filed his written statement and clearly mentioned that the licensed premises has been gifted to the plaintiffs vide registered gift deed dt. 18.12.2003. Despite the fact that Mr. Ramesh CS No.96666/16 Gulshan Kumar Sethi & Anr. Vs. Rajesh 2 of 16 Chand Sethi mentioned clearly in his written statement in the said civil suit regarding gifting of the licensed premises to the plaintiffs, the Late father of the defendant/ defendant failed to tender / pay the license fees to the plaintiffs and therefore, they are liable to be evicted from the licensed premises for violation of Clause 5 of the said settlement dt. 07.12.1972. The said civil suit filed by Late Sh. Deep Chand is stated to be dismissed on 03.05.2006. It is further the case of the plaintiffs that although, the license of the licensed premises stood determined and no notice was required to be served as per the terms and conditions of settlement dt. 07.12.1972, however, as a matter of abandon caution, a notice dt. 22.03.2013 was sent to the defendant for termination of the license. It is further averred by the plaintiffs that the defendant is running the aata chakki from the licensed premises without having any valid municipal license.
1.3. In view of these facts, the plaintiffs have filed the present suit against the defendant seeking relief of mandatory injunction to direct the defendant to remove all his belongings from the licensed premises and to handover the keys of the same to the plaintiffs, the relief of permanent injunction has been sought to restrain the defendant from running the aata chakki at the licensed premises without valid municipal license, recovery of Rs.7,560/ has been sought as arrears of license fees for the legally recoverable period of three years from the date of revocation of the license, mesne profits / damages have also been sought from the defendant.
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2. The defendant filed his written statement. In the written statement, the defendant did not dispute that his late father Sh. Deep Chand and thereafter, he is the licensee in the licensed premises. The defendant also did not dispute the terms and conditions of settlement dt. 07.12.1972. The defendant has not disputed that Sh. Ramesh Chand Sethi in the previous civil suit filed by Late Sh. Deep Chand against Sh. Ramesh Chand Sethi stated in his WS that he has gifted the licensed premises to the plaintiffs. The defendant mainly took the stand that plaintiffs have no right to file the present suit because no notice of attornment was served upon the defendant as well as no document was provided to the defendant or his late father Sh. Deep Chand regarding the ownership of the plaintiffs. It is further the stand of the defendant that Late Sh. Deep Chand kept on paying the license fees to Sh. Ramesh Chand Sethi against receipts upto September, 2004 and subsequently, when Sh. Ramesh Chand Sethi refused to accept the license fees, Late Sh. Deep Chand sent the license fees for the month of October, 2004 to November, 2004 by way of money orders, but Sh.Ramesh Chand Sethi refused to accept the said money orders. Late Sh. Deep Chand got issued a legal notice dt. 27.05.2006 upon Sh. Ramesh Chand Sethi and the plaintiffs asking them to divulge the details of the alleged gift deed and providing the copy of the same etc., however, the said legal notice was not replied. The defendant further took the objection that the plaintiffs are seeking relief of possession under the garb of mandatory injunction without paying the advolerm courtfees and the present suit is a counterblast to the suit for injunction CS No.96666/16 Gulshan Kumar Sethi & Anr. Vs. Rajesh 4 of 16 filed by the defendant against the plaintiffs and his brother Sh. Ramesh Chand Sethi. It is further the stand of the defendant that he has always been ready and he is ready till date to pay the due license fees of the licensed premises.
3. The plaintiffs filed replication to the written statement filed by the defendant wherein the plaintiffs denied the averments made in the written statement and reaffirmed those, as made in the plaint.
4. On the basis of the pleadings, following issues were framed by my Ld. Predecessor vide order dt. 22.12.2015 :
1. Whether the plaintiff is entitled to the decree of mandatory injunction ? OPP.
2. Whether the plaintiff is entitled to the arrears of license fee to the tune of Rs.7,560/ ? OPP.
3. Whether the plaintiff is entitled to the decree of arrears of Rs.40,000/ towards the damages of mesne profits ? OPP.
4. Whether the plaintiff is entitled for any future damages, if so, at what rate and for what period ? OPP.
5. Whether the suit of the plaintiff is liable to be rejected U/o. 7 Rule 11 CPC ? OPD.
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6. Whether the suit of the plaintiff is liable to the dismissed U/s.
41(h) of the Specific Relief Act ? OPD.
5. It is noted that there is a connected matter titled as Rajesh Kumar Jain Vs. Ramesh Sethi & Ors., bearing Old CS No.59/13 and New CS No. 98519/16 and vide Order dt. 04.11.2016 my Ld. Predecessor directed that common evidence will be recorded in these cases. In pursuant to the order dt. 04.11.2016 passed by my Ld. Predecessor, common evidence has been recorded in both the matters.
6. I have perused the entire case files and considered the arguments made by the Ld. Counsels for the parties.
7. My issuewise findings are as under : Issue Nos. 1, 5 and 6 :
1. Whether the plaintiff is entitled to the decree of mandatory injunction ? OPP.
5. Whether the suit of the plaintiff is liable to be rejected U/o. 7 Rule 11 CPC ? OPD.
6. Whether the suit of the plaintiff is liable to the dismissed U/s.
41(h) of the Specific Relief Act ? OPD.
7.1. These issues have been taken up together being connected CS No.96666/16 Gulshan Kumar Sethi & Anr. Vs. Rajesh 6 of 16 and can be disposed off through common discussion. In the common evidence led by the parties, Mr. Gulshan Sethi examined himself and on the other hand, Sh. Rajesh Kumar Jain examined himself alongwith other witness Sh. Pyare Lal, who appeared to support the contentions of Sh. Rajesh Kumar Jain. Mr. Gulshan Sethi mainly relied upon the registered gift deed dt. 18.12.2003 Ex.PW1/1, certified copy of the written statement filed by Sh. Ramesh Chand Sethi in the civil suit filed against him by Late Sh. Deep Chand as Ex.PW1/D2, copy of the notice dt. 22.03.2013 for termination of the license as Ex.PW1/D3 etc. On the other hand, Sh. Rajesh Kumar Jain mainly relied / filed copy of the settlement deed dt. 07.12.1972 as Ex.PW1/2, copy of the money orders with refusal report for the period from 01.10.2004 to 30.11.2004 as Ex.PW1/4, copy of legal notice dt. 27.05.2006 as Ex.PW1/5 etc. Sh. Pyare Lal witness appeared to support the contentions of Sh. Rajesh Kumar Jain. Sh. Pyare Lal stated to be the employee at the aata chakki tendered his evidence by way of affidavit Ex.PW2/A. Sh. Pyare Lal mainly deposed regarding attempt of forcible dispossession of Sh. Rajesh Kumar Jain from the licensed premises by the opposite party i.e. Mr. Gulshan Sethi, Ramesh Chand Sethi etc. 7.2. As noted above, settlement dt. 07.12.1972 has not been disputed by the parties and as per Clause 5 of the said settlement, the license was to be determined, if the licensee fails to make payment of license fees and has been in the arrears of the license fees for a period of three months and there was no requirement of issuance of notice for CS No.96666/16 Gulshan Kumar Sethi & Anr. Vs. Rajesh 7 of 16 determination of the license. The plaintiffs took the stand that the defendant failed to pay the license fees and has been in arrears of license fees for more than 3 months and therefore, license of the licensed premises stood determined in view of Clause 5 of the settlement. On the other hand, it is the stand of the defendant / Rajesh Kumar Jain that there was no attornment of the licensed premises and Sh. Ramesh Chand Sethi refused to accept the money orders sent for the period of October, 2004 to November, 2004 and therefore, the license fees of the licensed premises was not tendered further after November, 2004. In the crossexamination of Sh. Rajesh Kumar Jain conducted by the counsel for the opposite party on 18.05.2017, Sh. Rajesh Kumar Jain stated in his crossexamination that after the refusal of money order for the period October, 2004 to November, 2004, his father Late Sh. Deep Chand filed a suit for injunction against Sh. Ramesh Chand Sethi and during the pendency of the said suit, Late Sh. Deep Chand did not tender any license fees by way of money order. He further stated in his crossexamination that the said suit was dismissed and Late Sh. Deep Chand expired on 01.07.2009. In further cross examination of Sh. Rajesh Kumar Jain conducted on 17.07.2017, he further stated that he received copy of the gift deed on 20.03.2014 and even after receiving of the gift deed, he did not send any money order to the plaintiffs i.e. Sh. Gulshan Kumar Sethi and Subhash Chander Sethi. In view of these facts and from the answers given by Sh. Rajesh Kumar Jain during his crossexamination, it is clear that license fees of the licensed premises was not tendered either to Mr. Ramesh Chand Sethi CS No.96666/16 Gulshan Kumar Sethi & Anr. Vs. Rajesh 8 of 16 or to the plaintiffs of the present suit after November, 2004. The defendant Sh. Rajesh Kumar Jain clearly admitted in his cross examination that he did not send any money order to the plaintiffs even after receiving of the copy of the gift deed. Therefore, it is clear that the defendant is in violation of the terms and conditions of the settlement dt. 07.12.1972 and as per the clause 5 of the said settlement, the license of the licensed premises stood determined. The defendant Sh. Rajesh Kumar Jain was bound by the terms of the conditions of the settlement, having stepped into the shoes of his predecessor in interest Late Sh. Deep Chand and he was bound to send the license fees to the plaintiffs. The defendant Sh. Rajesh Kumar Jain stated that there was no legal attornment of the licensed premises as no notice of attornment was given to him or his Late father Sh. Deep Chand and no copy of the gift deed was provided to them. It has come on record that in the written statement filed by Sh. Ramesh Chand Sethi in the previous civil suit filed against him by Late Sh. Deep Chand, Sh. Ramesh Chand Sethi categorically stated that he has gifted the licensed premises to his brothers / plaintiffs i.e. Sh. Gulshan Kumar Sethi and Subhash Chander Sethi and in view of this Court, the avernment in the written statement of Sh. Ramesh Chand Sethi filed in the previous suit regarding gifting of the licensed premises was sufficient enough for the late father of the defendant/defendant to accept that licensed premises has been gifted to the present plaintiffs. There is no legal requirement for issuance of a separate written notice for attornment, as admittedly, the relationship between the parties in the present case is of a licensor and licensee and CS No.96666/16 Gulshan Kumar Sethi & Anr. Vs. Rajesh 9 of 16 the same has been clearly mentioned in Clause 2 of the settlement dt. 07.12.1972. The relationship / rights as well as duties of the licensor / licensee are governed by Chapter VI (Licenses) of The Indian Easement Act, 1882. The license of the licensed premises stood revoked / determined on the default of the part of the defendant/ Late father of the defendant being in arrears of license fees for more than three months. Late father of the defendant/ defendant was required to tender the license fees to the plaintiffs, as per the clause 5 of the settlement and it has been discussed above that no moneyorders for payment of license fees were sent after November, 2004 either to the previous owner Sh. Ramesh Chand Sethi or to the present plaintiffs and the same is sufficient enough to say that the defendant/late father of the defendant violated the terms and conditions of clause 5 of the Settlement dated 07.12.1972 and therefore, the license of the licensed stood revoked automatically without any further notice. Although, the license was irrevocable in nature, however, the same was subject to the terms and conditions mentioned in the settlement and therefore, the license stood revoked on noncompliance of the terms and conditions of clause 5 of the Settlement dated 07.12.1972.
The defendant has failed to prove on record the delivery of notice dated 27.05.2006 sent by his late father to the plaintiffs and Sh.Ramesh Chand Sethi as no original postal receipt of the dispatch of the said notice were produced on record and the plaintiffs have disputed the receipt of the said notice.
CS No.96666/16 Gulshan Kumar Sethi & Anr. Vs. Rajesh 10 of 16 7.3. The contention of the Ld. Counsel for the defendant that the plaintiffs should have filed a suit for possession instead of suit for mandatory injunction is liable to be rejected, as it is settled law that a licensor can file a suit for mandatory injunction for eviction of the licensed premises from a licensee.
7.4 In view of these facts and reasons, these issues are decided in favour of the plaintiffs and against the defendant.
8. Issue No. 2:
2. Whether the plaintiff is entitled to the arrears of license fee to the tune of Rs.7,560/ ? OPP.
8.1. It is not disputed that the license fees of the licensed premises is of Rs.210/ per month. In clause no.3 of the settlement dt. 07.12.1972, the license fees has been mentioned as Rs.210/ p.m. In the aforesaid paragraphs, it has been mentioned that the defendant/ Late father of the defendant has paid the license fees only upto November, 2004. However, the plaintiffs can legally recover the license fees only of three years prior to the date of filing of the present suit.
8.2. In view of these facts and reasons, this issue is decided in favour of the plaintiffs and against the defendant.
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9. Issue Nos. 3 and 4:
3. Whether the plaintiff is entitled to the decree of arrears of Rs.40,000/ towards the damages of mesne profits ? OPP.
4. Whether the plaintiff is entitled for any future damages, if so, at what rate and for what period ? OPP.
9.1. These issues being connected can be disposed off through common discussion and therefore, the issues have been taken up together. The plaintiffs have claimed mesne profits / damages @ Rs.10,000/ per month. In order to prove their claim of mesne profits / damages, the plaintiffs have mentioned in paragraph nos. 15 and 16 of evidence affidavit of Sh. Gulshan Sethi that the monthly rent of adjoining properties is Rs.11,000/ p.m. / Rs.10,000/ p.m. In the cross examination of Sh. Gulshan Sethi, the opposite counsel did not cross examine the witness Gulshan Sethi on the averments made in para nos. 15 and 16 of his evidence affidavit and therefore, it can be presumed that defendant has not objected to the contentions made in para nos. 15 and 16 of evidence affidavit of witness Sh. Gulshan Sethi. Moreover, Sh. Gulshan Sethi produced certified copy of lease deed as Ex.PW1/2 of the adjoining property in which the monthly rent of the said property has been shown as Rs.11,000/ p.m. excluding other charges. In view of these facts and reasons, it can be said that the monthly rent of the CS No.96666/16 Gulshan Kumar Sethi & Anr. Vs. Rajesh 12 of 16 licensed premises as on date will be of Rs.10,000/ p.m. The plaintiffs are entitled for mesne profits/ damages of Rs.10,000/ per month from the defendant, as the defendant is in unauthorized occupation of the licensed premises. The plaintiffs are awarded mesne profits / damages @ Rs.10,000/ per month against the defendant from the date of filing of the present suit till the handing over of actual physical possession of the licensed premises by the defendant to the plaintiffs. The prayer for the plaintiffs for passing of decree for arrears of Rs.40,000/ towards damages/mesne profits is declined because the plaintiffs have been held to be entitled for recovery of license fees preceding three years from the date of filing of the present suit and from the date of filing of the present suit, they have been awarded damages/mesne profits at the rate of Rs. 10,000/ per month till the vacation of the licensed premises by the defendant as aforesaid.
9.2. Consequently, Issue No. 3 is decided in favour of the defendant and against the plaintiffs, whereas Issue No. 4 is decided in favour of the plaintiffs and against the defendant.
10. It has been noticed at the time of the judgment that issue of Permanent Injunction has not been framed in this case. It appears that due to inadvertence mistake the issue of Permanent Injunction was not framed by my Ld. Predecessor. In view of the powers conferred upon the court by Order 14 Rule 5 CPC, the following issue is framed at this stage : CS No.96666/16 Gulshan Kumar Sethi & Anr. Vs. Rajesh 13 of 16 Issue No. 7 : Whether the plaintiff is entitled for the relief of Permanent Injunction seeking restrain order against the defendant from running aata chakki in the licensed premises without valid Municiple Licenses ? OPP This Court proceeds to decide the issue on the basis of material available on record. In the crossexamination of the defendant Sh. Rajesh Kumar Jain conducted by counsel for the opposite party on 18.05.2017, Sh. Rajesh Kumar Jain stated in his crossexamination that during the lifetime of his father, the license to run the aata chakki was renewed by the authority, however, after the death of his father, the license to run atta chakki was never renewed and the aata chakki is being run by him after the death of his father without obtaining any license from MCD. In view of the answers given by the defendant Sh. Rajesh Kumar Jain, it is clear that the aata chakki is being run by the defendant from the licensed premises without any valid license/permission from the competent authorities which is clear violation of law of the land. The defendant cannot be permitted to run aata chakki from the licensed premises without obtaining valid license/permission from the competent authorities as per law and therefore, defendant is permanently restrained from running aata chakki from the license premises unless and until a valid license/permission is obtained from the competent authorities as per law.
Consequently, this issue is decided in favour of the plaintiffs CS No.96666/16 Gulshan Kumar Sethi & Anr. Vs. Rajesh 14 of 16 and against the defendant.
11. Relief.
In view of the aforesaid discussion, the suit of the plaintiffs is decreed in favour of the plaintiffs and against the defendant. The plaintiffs are awarded following reliefs against the defendant:
i) The defendant is directed to handover the actual physical vacant possession of the licensed premises as shown in red colour in the site plan Ex.PW1/D7 to the plaintiffs.
ii) The defendant is permanently restrained from running the aata chakki in the licensed premises, as shown in red colour in the site plan Ex.PW1/D7 unless and until a valid license/permission is obtained from the competent authorities as per law.
iii) The plaintiffs are entitled for recovery of Rs.7560/ as arrears of license fees from the defendant.
iv) The plaintiffs are entitled for mesne profits / damages @ Rs.10,000/ per month from the date of filing of the present suit till the handing over of the actual vacant physical possession by the defendant to the plaintiffs subject to furnishing of deficient courtfees, if any, as per rules.
CS No.96666/16 Gulshan Kumar Sethi & Anr. Vs. Rajesh 15 of 16 Costs of the suit are also awarded in favour of the plaintiffs.
12. Decree sheet be prepared accordingly subject to furnishing of deficient courtfees, if any by the plaintiffs, as per rules.
13. File be consigned to record room after necessary compliance.
Announced in the open Court
today on 08.01.2019 ( Dheeraj Mittal )
Civil Judge02 (Central)
Delhi.
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