Delhi District Court
Sh. Ashish Jain vs Sh. Radhey Shyam & Anr on 15 December, 2014
IN THE COURT OF SH. BALWANT RAI BANSAL,
ADDITIONAL DISTRICT JUDGE02 (SOUTHEAST),
SAKET COURTS, NEW DELHI
Civil Suit No. 299/12
Sh. Ashish Jain
..... Plaintiff
Vs.
Sh. Radhey Shyam & Anr.
..... Defendants
O R D E R:
1. Vide this order I shall dispose of an application u/o 39 rule 1 & 2 CPC moved by the plaintiff.
2. Brief facts necessary for disposal of the application are that the plaintiff has filed the present suit for permanent injunction against the defendant no. 1. The case of the plaintiff is that he is lawful tenant in the property in question. The tenancy started in the year 1978 when the father of the plaintiff took one tin shed and open area on rent vide agreement dated 01.01.1978 and later in the year 1981 remaining portion was taken on rent by the mother of the plaintiff vide agreement dated 10.04.1981. The plaintiff's father expired on 04.01.2008 and the mother of the plaintiff expired on 27.11.2008 and the plaintiff being their only son has inherited the CS No. 299/12 Ashish Jain Vs. Radhey Shyam Page 1 of 11 tenancy rights. The family of the plaintiff was carrying on business of elastics manufacturing under the name and style of Vardhman Elastic Udyog and ESS PEE Enterprises from the suit premises and was paying rent to Smt. Prakashwati and her sons. In the year 2001, under the directions of the Hon'ble Supreme Court, the MCD sealed the suit premises considering it to be polluting unit. It is stated that unit of the plaintiff is a nonpolluting unit and thus the plaintiff's father made a representation to the Government, but no action was taken. It is further averred that all the valuable material of the plaintiff are still lying inside the sealed premises and to safe guard the said property, a Chowkidar was employed. However, on 01.04.2011 when the plaintiff went to the suit premises he found that chowkidar was missing and the scrap and raw material lying in the open area was also missing. The plaintiff reported the matter to the police and since that day he has been receiving calls from defendant no. 1 and other notorious bad elements threatening to take the possession of the suit property illegally. Hence, the plaintiff has filed the present suit seeking permanent injunction thereby restraining the defendants, his agents, servants etc from forcibly entering the suit property and disturbing the legal possession of the plaintiff.
3. Along with the suit, the plaintiff has moved an application u/o 39 rule 1 & 2 CPC, which is under disposal, seeking ad interim CS No. 299/12 Ashish Jain Vs. Radhey Shyam Page 2 of 11 injunction to restrain the defendant, his agents, heirs, servants etc., from disturbing the lawful possession of the plaintiff in the suit premises in any manner till the pendency of the suit.
4. Defendant no. 1 contested the suit by filing written statement contending that he is the owner of the suit property. The plaintiff is having a status of licensee in the property arisen from the deeds executed by his father long back in the year 1981 which were already revoked firstly by intimation from the defendant, secondly by sealing and locking from the authorities and thirdly on account of non action and non possession of the property for a period of 10 years. It is further contended that the defendant had duly informed the plaintiff about his ownership and also informed that previous license if any stood revoked as per law. The locus standi of the plaintiff to file the present suit has been challenged. It is contended that plaintiff cannot claim tenancy rights over the suit property on the basis of lease deed which already stands revoked. The claim of the plaintiff that he is paying rent to Smt. Prakashwati has been denied for want of knowledge. It is contended that the plaintiff himself has admitted that the factory was already locked and sealed by the MCD in the year 2001 and hence there is no apprehension of dispossession of the plaintiff by the defendant. Other contents of the plaint are stated to be wrong and denied. Defendant no. 1 has prayed for dismissal of the suit CS No. 299/12 Ashish Jain Vs. Radhey Shyam Page 3 of 11 as well as of the interim application.
5. The plaintiff has filed replication denying that the defendant is the owner of the property in question or that defendant has informed the factum of his ownership or that license of the plaintiff is revoked. It is stated that plaintiff is not a licensee but a lessee/tenant and the owners have been issuing rent receipts since last 34 years. It is further averred that the agreement dated 01.07.1978 in substance is a lease deed only as exclusive possession and control of the property has been given to the plaintiff's father by the owners and the owners vide agreement dated 01.07.1978 created interest in favour of the lessee and mere nomenclature would not change the nature of the document. The other contents of the plaint are reaffirmed and re iterated and those made in the written statement have been controverted.
6. I have heard the Ld. Counsel for the parties and perused the record carefully.
7. The plaintiff has claimed to be tenant in the suit property on the ground that initially the tenancy started in the year 1978 when his father took one tin shed and open area on rent vide agreement dated 01.01.1978 and later in the year 1981 the remaining portion was taken on rent by his mother vide agreement dated 10.04.1981 and after the death of his parents, the plaintiff being the only son inherited the CS No. 299/12 Ashish Jain Vs. Radhey Shyam Page 4 of 11 tenancy rights in the suit property. It is further case of the plaintiff that his family was carrying on business under the name and style of Vardhman Elastic Udyog and ESS PEE Enterprises from the suit premises and they had been paying rentals to Smt. Prakash Wati and her sons. However, in the year 2001, the MCD under the directions of the Hon'ble Supreme Court sealed the suit premises considering it to be polluting unit. It is also case of the plaintiff that his valuable machinery, raw material, stock etc are lying inside the sealed premises and to safe guard the same, a Chowkidar was employed but he was missing and the articles of the plaintiff and the raw material lying in the open area was also missing. The plaintiff has also claimed that he has been receiving calls from the defendant no. 1 and other bad elements threatening to dispossess him from the suit property.
8. In support of his claim, the plaintiff has placed on record the photocopy of agreement dated 01.01.1978 and 10.04.1981, MTNL bill, electricity bill, certificate of registration showing place of business at Delhi, closure of unit document issued by Enforcement Squad, application for desealing dated 10.08.2001. Prima facie, these documents show the possession of the plaintiff in the suit premises and subsequently the premises were sealed by the MCD in the year 2001 under the directions of the Hon'ble Supreme Court. SI Nitin Kumar, PS Sarita Vihar also in his statement recorded in the present CS No. 299/12 Ashish Jain Vs. Radhey Shyam Page 5 of 11 case on 28.05.2011 stated that on inquiry it was found that the suit property was let out to the parents of the plaintiff and same is lying sealed without any tempering with the said seal.
9. The defendant claims himself to be owner of the property in question and also claims that plaintiff is only a licensee in the property as evident from the deeds executed by his father and the license of the plaintiff stood terminated on account of non occupation of the premises for the last 10 years and further in view of the fact that same has been revoked by the defendant.
10. The plaintiff in the replication disputed the ownership of the defendant over the property in question and has also denied that he is licensee in the suit property. The plaintiff has claimed that he is in fact a tenant in the suit property having exclusive possession of the same for which he had been paying rentals to landlady Smt. Prakash Wati and her sons and the nomenclature of the agreements would not make it a license deed.
11. The Ld. Counsel for defendant has vehemently argued that plaintiff is not entitled to any injunction as his license in respect of the suit premises stood revoked because he has not paid the license fee. He further argued that since the defendant has become the owner of the suit property which fact was also intimated to the plaintiff and further in view of the fact that suit premises are lying sealed by the CS No. 299/12 Ashish Jain Vs. Radhey Shyam Page 6 of 11 MCD, same cannot be used and hence the license, if any, has become infructuous. In support of his contentions, the Ld. Counsel for defendant has relied upon the judgment of the Hon'ble High Court of Delhi in G.N. Mehra Vs. International Airports Authority of India (IAAI) 1996 IAD (Delhi) 1042.
12. However, I do not find any merit in the aforesaid contentions of the Ld. Counsel for defendant. First of all, from the material available on record, it is not proved that the defendant is the owner of the property in question. The defendant though in the written statement has claimed to be owner of the suit property, but there is not a whisper that from whom he has purchased the property in question and how he became the owner of the property in question. Though, the defendant has placed on record the photocopy of SPA, GPA, Affidavit, Possession Letter, Will etc. to show that he is the owner of the property in question, but these documents do not confer the title of ownership in favour of the defendant over the suit property. It is also to be noted that the defendant has claimed to have intimated the plaintiff about his ownership, but there is nothing on record to show that at any point of time, the defendant or landlady Smt. Prakash Wati or her successor in interest have ever intimated the plaintiff that property in question has been sold to the defendant.
13. It is also pertinent to mention here that an application CS No. 299/12 Ashish Jain Vs. Radhey Shyam Page 7 of 11 u/o 1 rule 10 CPC was moved by four applicants namely Bishambar Dayal, Raghubir Singh, Devender Kumar and Narender Kumar for impleadment as defendants in the present case on the ground that they are the owners/bhumidars of the suit land and their names also stand duly recorded in the record of Khatoni maintained by the revenue department of Government of NCT of Delhi. The said application was dismissed by this court vide order dated 02.08.2014 observing that ownership of the defendant or of the applicants is not required to be adjudicated upon in the present case which is simplicitor suit for injunction against the defendant no. 1. However, it shows that there is dispute in respect of the title over the property in question and in the absence of any title documents in favour of the defendant, it cannot be concluded that defendant is the owner of the suit property as claimed by him in the written statement.
14. Even if it is assumed that plaintiff was a licensee in the suit property and license has expired, still the defendant cannot dispossess or throw away the plaintiff from the suit property illegally and forcibly. The licensor/true owner could have resisted the injunction as prayed by the plaintiff but the defendant who is yet to establish his ownership over the property in question and admittedly he was not the licensor could not throw away the plaintiff from the suit premises except with due process of law. Of course, the premises CS No. 299/12 Ashish Jain Vs. Radhey Shyam Page 8 of 11 are lying sealed by MCD but still the plaintiff is in legal possession of the same. The plaintiff also claims that his goods and materials are lying in the sealed premises and he has also been taking steps to get the premises desealed. Therefore, it cannot be said that the plaintiff is not left with any interest in the suit premises because the premises are lying sealed. The suit property has been sealed by the Monitoring Committee on account of misuse of suit property and merely on the ground that it has been sealed, it cannot be said that the plaintiff is no more in possession of the suit premises. Since the defendant is yet to establish that he is the owner of the property in question, he cannot simply claim that license of the plaintiff stood revoked. Further, it has to be seen as to whether the plaintiff is in fact a tenant in the suit property or is a licensee in view of the claim of the plaintiff that he had been paying the rentals to the landlady Smt. Prakash Wati and to her sons and has been in the exclusive use and possession of the suit premises. Though agreements dated 01.01.1978 and 10.04.1981 are titled as license deed but only on the basis of nomenclature of these agreements, it cannot be concluded that plaintiff was a licensee and it has to be seen whether the plaintiff is a tenant or the licensee on the basis of terms and conditions of the aforesaid agreements.
15. So far the authority relied upon by the Ld. Counsel for defendant is concerned, I have gone through the said judgment. In the CS No. 299/12 Ashish Jain Vs. Radhey Shyam Page 9 of 11 said case, admittedly the plaintiff was licensee in the suit premises and he failed to pay the monthly license fee and his license had also expired. In those circumstances, it was held that after the expiry of period of license, the plaintiff was bound to surrender possession to licensor and on his failure to do so, the plaintiff cannot claim any injunction against dispossession.
16. However, facts in the present case are entirely different. In the present case, it is yet to be seen whether the plaintiff is a licensee in the suit premises or is a tenant in the suit premises. Further, admittedly, the defendant is not the licensor or the landlord who had let out the suit premises to the plaintiff and he claims to have become owner of the suit property which is yet to be proved. Therefore, the aforesaid authority relied upon by the Ld. Counsel for defendant is not applicable in the facts and circumstances of the present case.
17. In the light of aforesaid discussions, in my considered opinion, the plaintiff has made out a prima facie case in his favour. The plaintiff who is in settled possession of the suit premises since 1978, though the premises were sealed in 2001, but still the plaintiff continues to have the legal possession of the suit premises and as his goods are also lying in the premises, he cannot be dispossessed forcefully. Since the plaintiff is in legal possession of the suit property and he apprehends that the defendant may tamper with the seal of the CS No. 299/12 Ashish Jain Vs. Radhey Shyam Page 10 of 11 property and may also dispossess him, therefore the possession of the plaintiff deserves to be protected. Balance of convenience also lies in favour of the plaintiff and if the possession of the plaintiff is not protected, irreparable loss and injury shall be caused to the plaintiff which cannot be compensated in terms of money. Hence, application moved by the plaintiff u/o 39 rule 1 & 2 CPC is allowed and the defendant, his agents, heirs, servants etc. are restrained from disturbing the lawful possession of the plaintiff in the suit premises in any manner till the pendency of the present suit.
Nothing stated herein shall tantamount to my expressions on merits of the case.
Announced in open Court (Balwant Rai Bansal)
on 15th December, 2014 Addl. District Judge 02 (SouthEast)
Saket Courts, New Delhi
CS No. 299/12
Ashish Jain Vs. Radhey Shyam Page 11 of 11
CS No. 299/12
Ashish Jain Vs. Radhey Shyam
15.12.2014
Present: None.
Vide my separate order of even date, the application moved by the plaintiff u/o 39 rule 1 & 2 CPC is allowed.
Now, to come up on 21.01.2015 for admission/denial of documents and framing of issues.
(Balwant Rai Bansal) ADJ02/SE/Saket/New Delhi 15.12.2014 CS No. 299/12 Ashish Jain Vs. Radhey Shyam Page 12 of 11