Delhi District Court
Smt. Jalebi Devi W/O Ram Kewal Yadav vs Sh. Jai Pal Singh S/O Not Known on 28 May, 2011
IN THE COURT OF SHRI. ASHISH AGGARWAL, CIVIL JUDGE1,
DWARKA COURTS, DELHI
CS No: 112/11
Unique Case ID No. 02405C0027252011
Smt. Jalebi Devi W/o Ram Kewal Yadav
R/o WZ549A, Naraina Vihar,
New Delhi110028 ... Plaintiff.
Versus
1. Sh. Jai Pal Singh S/o not Known
R/o WZ 368, Naraina Village
Naraina Vihar, New Delhi110028
2. Sh. Ravinder S/o Sh. Sewa Ram
R/o WZ481 Naraina Village
Naraina Vihar, New Delhi110028
3. Sh.Santosh S/o Not Known
R/o WZ549A, Naraina Village
Naraina Vihar, New Delhi110028
4. Smt. Rukmani Devi
W/o Sh. Vashisht Tewari
R/oWZ549A, Naraina Village
Naraina Vihar, New Delhi110028 ... Defendants
Date of Institution: 18.01.2011
Date on which judgment was reserved: 26.05.2011
Date of pronouncing judgment: 28.05.2011
Jalebi Devi Vs. Jai Pal Singh & Ors. CS 112/11 1 of 17
SUIT FOR PERPETUAL AND MANDATORY INJUNCTION
JUDGMENT
1. The suit shall be decided by this judgment. The plaintiff has stated in the plaint that she is tenant and in possession of the property bearing No. WZ549A, ground floor room, Naraina Village, Naraina Vihar, New Delhi110028, shown in red colour in the site plan attached with the plaint (hereinafter referred to as "suit property"). It is averred in the plaint that one Sh. Mange Ram was the owner of the property and after his death, his wife Smt. Manbo Devi became the owner of the property. Later she also expired. It is further stated in the plaint that Smt. Bala was the only surviving legal heir and therefore became owner of the suit property. She died in the year 2009. Since her death, her husband Sh. Jai Pal Singh has been accepting rent from the plaintiff. It is further averred that the plaintiff has been regularly paying rent to defendant no. 1. It is stated that the defendant no. 1 is not issuing any rent receipt. It is further averred in the plaint that the plaintiff has been in settled and peaceful possession of the suit property. It is further stated that the defendants have been threatening to forcibly dispossess the plaintiff from the suit property. The plaintiff has, by the present suit, prayed for a decree of perpetual injunction restraining the defendants and their representatives from disturbing the peaceful possession of the plaintiff over the suit property without due process of law. The plaintiff has also prayed for a decree of 'mandatory' injunction restraining the defendants and their representatives from extending any threat to the plaintiff to get the Jalebi Devi Vs. Jai Pal Singh & Ors. CS 112/11 2 of 17 property vacated without due process of law.
2. Initially, the suit was filed only against defendant nos. 1, 2 and 3. After service of summons, the defendants appeared before the Court. The plaintiff filed an application for impleading one Smt. Rukmani Devi as a defendant in the present case. The application was allowed. Smt. Rukmani Devi was arrayed as defendant no. 4.
3. Defendant nos. 1 and 2 failed to file their written statement. Their right to file written statement was closed by order dated 31.03.2011.
4. Defendant nos. 3 and 4 filed their written statement. They stated in their written statement that the suit is barred by Section 41 (i) of the Specific Relief Act, 1963. They further stated that the suit has not been properly valued and that the plaintiff has no cause of action to file the present suit. They further pleaded that defendant no. 4 is the owner of the suit property and that the plaintiff has not been paying rent to the defendant no. 4. It was further stated that the suit property is in dilapidated condition and requires repairs. It is admitted that the plaintiff was a tenant in the suit property. The defendants denied that they have been extending threats to the plaintiff.
5. After completion of pleadings, the following issues were framed by the Court by order dated 31.03.2011:
1. Whether the suit is barred by Section 41(i) of the Specific Relief Act, 1963? OPD 3 and D4.
2. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD 3 and D4.
3. Whether the plaintiff has cause of action to file the present suit? OPP Jalebi Devi Vs. Jai Pal Singh & Ors. CS 112/11 3 of 17
4. Whether the plaintiff is in settled possession of the suit property?
OPP.
5. Whether the plaintiff is entitled to permanent injunction restraining the defendants from disturbing the peaceful possession of the plaintiff without due process of law? OPP.
6. Whether the plaintiff is entitled to injunction restraining the defendants and their representatives from extending threats to the plaintiff to get the property vacated without due process of law? OPP.
7. Relief.
6. The plaintiff adduced evidence in support of her case. She examined Sh. Sanjay Yadav as PW1. PW1 tendered his affidavit Ex. PW1/1 in evidence. He reiterated the contents of the plaint. He identified and relied upon the following documents:
(a) Power of Attorney as Ex PW1/A;
(b) SitePlan as Ex PW1/1;
(c) Copy of Election Identity Card and Ration Card as Ex.PW1/2(colly.).
The witness was not crossexamined by the defendants despite grant of opportunity. Plaintiff's evidence was closed. The defendants chose not to lead any evidence. The defendant nos. 3 and 4 however tendered their statements before the Court. The defendant no. 3 stated that the suit property is owned by his mother i.e. defendant no. 4 and that he has nothing to do with the property. The defendant no. 4 stated that she is the owner of the suit property and that she does not wish to dispossess the plaintiff without due process of law which is without prejudice to her right to recover rent from the plaintiff and other submissions made by her. Defence evidence was closed.
Jalebi Devi Vs. Jai Pal Singh & Ors. CS 112/11 4 of 17
7. Final arguments are heard. Record is perused.
The issuewise findings are as under:
ISSUE NO. 1 "Whether the suit is barred by Section 41(i) of the Specific Relief Act, 1963? OPD 3 and D4."
8. The onus to prove this issue is upon defendant nos. 3 and 4. It is contended on behalf of defendant nos. 3 and 4 that the suit is barred by Section 41(i) of the Specific Relief Act, 1963. The said defendants have stated in the written statement that the plaintiff has made false averments in the plaint and is therefore not entitled to any relief.
9. The pleas and averments of the plaintiff including those relating to payment of rent and ownership of the suit property have been denied by the defendant nos. 3 and 4. However, in support of the said denial, the said defendants have not led any evidence. The defendants have also not crossexamined the solitary witness of the plaintiff. The testimony of PW1 has therefore remained uncontroverted. There is nothing on record to demonstrate that the assertions made by the plaintiff in the plaint, and reiterated by PW1 in his affidavit, are false.
10. For this reason, the plaintiff cannot be condemned of falsehood and cannot be nonsuited. There is no doubt about the proposition of law that an injunction is a discretionary relief. However, to deny a person an injunction inspite of making out substantive grounds, there must be a convincing basis. A mere bald contention that the averments made in the plaint are false, without any evidence Jalebi Devi Vs. Jai Pal Singh & Ors. CS 112/11 5 of 17 to support the said submission, is not sufficient to deprive the plaintiff of the said relief. Hence it cannot be concluded that the conduct of the plaintiff has been dishonourable or in any other manner disentitles him to the grant of injunction under Section 41(i) of the Specific Relief Act, 1963. The suit is therefore held to be not barred by the said provision. The issue is decided in favour of the plaintiff and against defendant nos. 3 and 4. ISSUE NO. 2.
"Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD 3 and D4."
11. The onus to prove this issue was upon defendant nos. 3 and 4. The case of defendant nos. 3 and 4, as borne out from the written statement, is that the suit is not correctly valued since the plaintiff has not paid advalorem court fee on the market value of the suit property.
12. This is a suit for grant of injunction restraining forcible dispossession and advancement of threats. Valuation of the suit for the purpose of court fee is covered by Section 7(iv) (d) of the Court Fees Act, 1870. The same value shall be the value for the purpose of jurisdiction, as provided in Section 8 of the Suits Valuation Act, 1887. According to Section 7(iv) (d) of the Court Fees Act, the value of the suit for injunction is discretionary and the plaintiff is at liberty to value the suit as per his choice. No restrictions can be placed on the said choice, as held by the Hon'ble Court of Delhi in the case of Shiela Devi Vs. Shri Kishan Lal ILR (1974) II Delhi 491.
Jalebi Devi Vs. Jai Pal Singh & Ors. CS 112/11 6 of 17
13. In the present case, the plaintiff has valued the suit at Rs.130/ for each injunction that he is seeking and has affixed court fee of Rs.26/. Hence it cannot be said that the value of the suit for the purpose of court fee or jurisdiction is incorrect.
14. The contention of the defendant that the plaintiff is required to pay advalorem court fee on the value of the suit property is without merit. The plaintiff is in possession of the suit property. He is not seeking, and is not needed to seek, recovery of possession of the suit property. There is no reason to value the suit as per the market value of the suit property. The plea of the defendants is rejected.
The issue is decided in favour of the plaintiff and against defendant nos. 3 and 4. ISSUE NO. 3
"Whether the plaintiff has cause of action to file the present suit? OPP".
15. The onus to prove this issue is upon the plaintiff. According to the plaintiff, she is a tenant in the suit property and the defendants have been trying to forcibly dispossess her.
16. On the other hand, the defendants nos. 3 and 4 have stated that they have not been threatening to forcibly dispossess the plaintiff.
17. The plaintiff has supported its case by the testimony of PW1 Mr. Sanjay Yadav.
PW1 has stated in his affidavit Ex PW 1/I that on 12.01.2011, the defendant no. 2 arrived at the suit property and directed the plaintiff to vacate the suit property. On refusal by the witness and others, the defendant no. 2 threatened to forcibly Jalebi Devi Vs. Jai Pal Singh & Ors. CS 112/11 7 of 17 dispossess the plaintiff and other tenants. On this, the plaintiff contacted defendant no. 1 and informed defendant no. 1 of the threats advanced by defendant no. 2. The defendant no. 1 informed the plaintiff that he had sold the property to defendant no. 2. PW1 has further deposed that again on 13.01.2011, the defendant no. 2 visited the suit property and threatened to forcible dispossess the plaintiff. Finally, PW1 has summed up in para no.7 of his affidavit Ex. PW1/I that all the defendants have "jointly and severally" threatened the plaintiff.
18. Reading the affidavit of PW1 as a whole, it appears that threats to the plaintiff were advanced by only defendant no. 2 and not by the remaining defendants. Had the remaining defendants also threatened the plaintiff, the plaintiff would have recounted the specific incidents. Having particularly narrated the incidents dated 12.01.2011 and 13.01.2011, while omitting to mention any other incident, clearly implies there was no other such incident and threats were advanced only on 12.01.2011 and 13.01.2011. Had threats been advanced by defendant No.1, 3 or 4, particulars thereof would surely have been given by the plaintiff in the plaint or at least in the affidavit of PW1, more so in light of the denial by the defendants in their pleadings.
19. It is only the defendant no. 2 who is stated to have arrived at the spot with his associates and to have advanced threats. No role has been ascribed to the remaining defendants in the incidents dated 12.01.2011 and 13.01.2011. It is not the case of the plaintiff that while advancing threats, the defendant no. 2 was Jalebi Devi Vs. Jai Pal Singh & Ors. CS 112/11 8 of 17 acting at the behest of, or with the aid of, the remaining defendants. On the contrary, the plaintiff has stated that on being threatened by defendant no. 2, the plaintiff had herself contacted the defendant no. 1 who informed about the sale of the property. Had the defendant No.1 also threatened the plaintiff or had the defendant No.2 been acting on behalf of defendant No.1, the plaintiff would not have taken steps to inform the defendant No.1 of the advancement of threats. The plaintiff has not described as to how and in what manner she felt threatened by defendant Nos. 1, 3 and 4.
20. It needs no emphasis that the plaintiff must stand on her own legs and must prove the cause of action existing in her favour as a condition precedent to the grant of injunction. The onus to prove this issue was placed upon the plaintiff who ought to have discharged it by leading cogent and convincing evidence. Reference in this behalf may be made to the case of M/s Surajbhan Kailash Chand & Anr. vs. Hari Shanker Vashist & Anr. AIR 1976 Delhi 70.
21. Order 6 Rule 4 of Code of Civil Procedure mandates that under such circumstances, particulars of the incident must be set out. The incidents dated 12.01.2011 and 13.01.2011 do not exemplify the conclusion of PW1 that the plaintiff was 'jointly and severally' threatened by the defendant nos. 1, 3 and 4. The defendants have not been stated to be present at the spot when threats were advanced. Defendant no. 2 is not stated to have been acting at the instance of said defendants. Therefore, it cannot be stated that in the advancement of threats, the defendants were acting 'jointly'. Further, if the defendants had been Jalebi Devi Vs. Jai Pal Singh & Ors. CS 112/11 9 of 17 acting 'severally', the separate incidents of giving threats would have been fully and properly described. None of this having been done, the plea of the plaintiff that he was threatened by defendants no. 1, 3 and 4 has remained bald and unsubstantiated. The assertion of the plaintiffs that threats were advanced by defendant nos. 1, 3 and 4 made in the concluding paragraph of the affidavit Ex PW 1/1 is therefore not believable and stands not proved. The plaintiff has however succeeded in demonstrating that she was threatened with forcible dispossession by defendant no.2.
22. The expression "cause of action" has been succintly explained by Hon'ble High Court of Delhi in the case of Kanwal Kishore Manchanda & Anr. V. S.D.Technical Services Pvt. Ltd. 121(2005) DLT 98 in which it was observed as follows:
"What then is a cause of action? Till there is no cause, there cannot be any action. For a cause, there has to be a right to sue. Infringement of a right or a clear and unequivocal threat to infringe that right would constitute a cause to bring an action. Whether a particular threat gave rise to a compulsory cause of action depends, upon the question whether that threat effectively invades or jeopardises the right. To constitute a cause of action, first is the coming into existence of a right and secondly , its infringement or threat to be infringed."
23. As demonstrated above, the plaintiff has failed to prove that she was threatened by the defendant nos. 1, 3 and 4. Hence, the plaintiff has no cause of action against the said defendants. The plaintiff has however clearly and incontrovertibly proved by the testimony of PW1 that the defendant no.2 had threatened to forcibly dispossess her from the suit property. The incidents that Jalebi Devi Vs. Jai Pal Singh & Ors. CS 112/11 10 of 17 occurred on 12.01.2011 and 13.01.2011 when threats were advanced have been fully described. The plaintiff has therefore succeeded in proving that she has cause of action against defendant no.2. The issue is partly decided in the favour of plaintiff and against defendant no.2.
ISSUE NO.4 "Whether the plaintiff is in settled possession of the suit property? OPP"
24. The onus to prove this issue is upon the plaintiff. The plaintiff has claimed to be in settled possession of the suit property. In support of this plea, the plaintiff has relied upon the testimony of PW1. PW1 has stated in his affidavit Ex PW 1/I that the plaintiff has been in occupation of the suit property as a tenant since "almost 30 years". PW1 has not been crossexamined. No evidence to the contrary has been adduced by the defendants. There is no reason to disbelieve the testimony of PW1. The occupation of the plaintiff has remained lawful and continuous. The said occupation qualifies as "settled possession".
25. In the case of Rame Gowda and others V. M. Varadappa Naidu AIR 2004 SC 4609, the Hon'ble Supreme Court explained as to what constitutes settled possession. It was observed that a casual act of possession, or a stray act of trespass does not qualify as settled possession. It was noted that settled possession must be effective, undisturbed and known to the owner. In the present case, there is ample evidence on record to establish that the plaintiff has been in actual physical possession of the suit property since almost three decades. It is also evident from the record that this possession was continuous, Jalebi Devi Vs. Jai Pal Singh & Ors. CS 112/11 11 of 17 open, known to the owner and acquiesced to by the latter. These attributes unerringly point towards settled and peaceful possession. The plaintiff has thus succeeded in proving that she is in settled possession of the suit property. The issue is decided in favour of the plaintiff against the defendants. ISSUE NO.5 "Whether the plaintiff is entitled to permanent injunction restraining the defendants from disturbing the peaceful possession of the plaintiff without due process of law? OPP."
26. The onus to prove this issue is upon the plaintiff. The plaintiff has prayed for permanent injunction restraining the defendants from disturbing her peaceful possession over the suit property without due process of law.
27. It has already been noted above that the plaintiff has been in settled possession of the suit property. That being so, the plaintiff cannot be dispossessed without due process of law as held by Hon'ble Supreme Court in the case of Rame Gowda and others V. M. Varadappa Naidu AIR 2004 SC 4609. In that case, it was held that a person in settled possession is entitled to permanent injunction restraining even the true owner from disturbing his possession without due process of law. It was observed as follows:
"If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking law Jalebi Devi Vs. Jai Pal Singh & Ors. CS 112/11 12 of 17 in his own hands and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force.
xxx xxx xxx It is the settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner. The concept of settled possession and the right of the possessor to protect his possession against the owner has come to be settled by a catena of decisions."
The same view was echoed in the cases of Bhagabat Pradhan and others v. Laxman Pradhan and others AIR 2004 NOC 53 (Orissa), M/s. S. S. Fasteners v. Satya Paul Verma AIR 2000 P & H 301, Shri Balaji Trading Co. v. Veeraswamy Srinivasan CRP No. 2626 of 1979 dated 7.8.1979 (Andhra), Hem Chand Jain v. Anil Kumar and Anr. 1992 RLR 224.
28. The plaintiff has thus succeeded in proving that she has a right not to be forcibly dispossessed from the suit property. It remains to be examined as to whether the plaintiff is entitled to grant of injunction to protect this right. In order to make out a case for grant of injunction, the plaintiff has to demonstrate not only the existence of the right but also a threat of invasion of the said right. An injunction is granted only when the injury to the rights of plaintiff is reasonably expected. An injunction is not issued to restrain a person from doing that which he is not attempting or intending to do. Injunction therefore does not lie in absence of actual or presently threatened interference. It is not sufficient for issuance of injunction that the injury may possibly result from the Jalebi Devi Vs. Jai Pal Singh & Ors. CS 112/11 13 of 17 act sought to be prevented. There must be at least a reasonable probability that the injury will be caused if no injunction is granted.
In the case of Bheekam Chand v. Ismail AIR 2006 Raj 1, the Hon'ble Rajasthan High Court held that where there is no threat of forcible dispossession, the plaintiff is not entitled to the grant of any injunction restraining such dispossession.
In the case of Sohan Singh v. Jhaman, (P&H) 1986 R.R.R. 579, the Hon'ble Punjab and Haryana High Court observed as under:
"In other words, there must be some overt act on the part of the defendant to invade or a threat to invade the plaintiff's right or commission of an act on the part of the defendant which is contrary to the plaintiff's rights. Except in so far as the above contingencies, no perpetual injunction could be granted against the defendant under the Act. "
29. In the present case, it has already been observed that threat of forcible dispossession has emanated from defendant no.2 alone and not from defendants no. 1, 3 and 4. It has been concluded that the plaintiff has no cause of action against defendant nos. 1, 3 and 4. As such, there is no reasonable apprehension of invasion of rights of the plaintiff by defendant nos. 1, 3 and 4. Injunction cannot be granted merely to allay the fears and apprehensions of individuals. The mere fact that the injunction against the defendant would not cause any harm to him does not authorize its issuance. The injury to the rights of the plaintiff must be shown to be certain to occur if the defendant is not enjoined by way of injunction. This ingredient being conspicuously absent, the plaintiff is Jalebi Devi Vs. Jai Pal Singh & Ors. CS 112/11 14 of 17 not entitled to the grant of injunction against defendants no. 1, 3 and 4.
30. In so far as the plaintiff has been threatened by defendant no. 2 with dispossession, there exists a reasonable probability of invasion of rights of plaintiff by defendant no.2. The plaintiff is therefore entitled to grant of permanent injunction restraining defendant no.2 and his associates from disturbing the peaceful possession of the plaintiff over the suit property without due process of law. This shall however be without prejudice to the right of the defendant no. 2 to evict the plaintiff in accordance with law. The plaintiff is not entitled to grant of said relief against defendants No.1, 3 and 4. The issue is partly decided in favour of plaintiff and against defendant no.2. ISSUE NO.6 "Whether the plaintiff is entitled to injunction restraining the defendants and their representatives from extending threats to the plaintiff to get the property vacated without due process of law? OPP."
31. The onus to prove this issue is upon the plaintiff. The plaintiff has prayed for "mandatory injunction" restraining the defendants from extending threats to the plaintiff to get the property vacated without due process of law. According to the plaintiff, the defendants have been threatening to forcibly dispossess the plaintiff from the suit property.
32. Although the plaintiff has termed the injunction sought by her as "mandatory injunction", the nature of injunction being prayed for is essentially prohibitory and shall therefore be deemed to be permanent injunction. It is the substance and not the form of the relief prayed for that is relevant. The above error is Jalebi Devi Vs. Jai Pal Singh & Ors. CS 112/11 15 of 17 therefore not material and may be overlooked.
33. It has already been noted above that threats to the plaintiff were not advanced by defendant Nos. 1, 3 and 4 and therefore the plaintiff has no cause of action against the said defendants. The plaintiff is therefore not entitled to the present relief against the said defendants.
34. The prayer of the plaintiff against any of the defendants cannot be acceded to.
This is because the prayer of the plaintiff is not to restrain the defendants from forcibly dispossessing the plaintiff but from extending threats to do so. Mere advancement of threats cannot be restrained. An expression of intention to get the property vacated does not, by itself, infringe the rights of the plaintiff. The right to express oneself is a valuable right guaranteed by Article 19(1)(a) of the Constitution of India on which no unreasonable fetters can be placed. Further, even if such a decree was to be passed, it would not be executable and would therefore be rendered nugatory and ineffective. Moreover, the injunction that the plaintiff is seeking requires a continuous duty to be performed by the Court and the Court cannot supervise its enforcement. For the above reasons, the plaintiff is not entitled to permanent injunction restraining the defendants from extending threats, as prayed. The issue is decided against the plaintiff and in favour of the defendants.
ISSUE NO.7 RELIEF
35. In the aforesaid facts and circumstances, the suit is partially decreed in favour of plaintiff and against defendant no.2. A decree of permanent injunction is Jalebi Devi Vs. Jai Pal Singh & Ors. CS 112/11 16 of 17 passed in favour of the plaintiff restraining the defendant No. 2, his agents, servants, assigns and associates from disturbing the peaceful possession of the plaintiff over property No. WZ549A, ground floor room, Naraina Village, Naraina Vihar, New Delhi110028, shown in red colour in the site plan Ex. PW1/1, without due process of law. The defendant no. 2 shall, however, be at liberty to recover possession of the said property in accordance with law. The plaintiff shall also be entitled to recover costs of the suit from defendant no.2. The suit is dismissed against defendant nos. 1, 3 and 4. Decree sheet shall be prepared accordingly. File be consigned to record room.
Announced in the open Court on
May 28, 2011 (Ashish Aggarwal)
Civil JudgeI, South West District,
Dwarka Courts, Delhi
Jalebi Devi Vs. Jai Pal Singh & Ors. CS 112/11 17 of 17