Delhi District Court
Sh. Gopal Dass Gupta vs Sh. Sukhbir Sharma on 12 July, 2011
IN THE COURT OF MS. MANISHA KHURANA, CIVIL JUDGE, DELHI.
Suit No. 401/09
Case ID No. C1396192009
Sh. Gopal Dass Gupta,
S/o Sh. Sri Ram,
R/o B1638, Shastri Nagar,
Near Ashok Vihar,
Delhi. .... Plaintiff
Versus
1. Sh. Sukhbir Sharma,
S/o Not known.
2. Sh. Raj Kamal,
S/o Sh. Sukhbir Sharma.
3. Sh. Arun Kamal,
S/o Sh. Sukhbir Sharma.
All residents of B1638,
Shastri Nagar,
Near Ashok Vihar,
Delhi. .... Defendants
SUIT FOR PERMANENT INJUNCTION.
Date of institution : 29.08.2009.
Date of conclusion of final arguments : 11.07.2011.
Date of decision : 12.07.2011.
Suit No. 401/09 & Suit No. 139/11 Page 1 of 16
IN THE COURT OF MS. MANISHA KHURANA, CIVIL JUDGE, DELHI.
Suit No. 139/11
Case ID No. C0312892011.
1. Sh. Sukhbir Sharma,
S/o Not known.
2. Sh. Raj Kamal,
S/o Sh. Sukhbir Sharma.
3. Sh. Arun Kamal,
S/o Sh. Sukhbir Sharma.
All residents of B1638,
Shastri Nagar,
Near Ashok Vihar,
Delhi. .... Plaintiffs
Versus
Sh. Gopal Dass Gupta,
S/o Sh. Sri Ram,
R/o B1638, Shastri Nagar,
Near Ashok Vihar,
Delhi. .... Defendant
COUNTER CLAIM OF THE DEFENDANTS.
Date of institution : 10.09.2009.
Date of conclusion of final arguments : 11.07.2011.
Date of decision : 12.07.2011.
Suit No. 401/09 & Suit No. 139/11 Page 2 of 16
JUDGMENT
Vide a single Judgment, I shall dispose off the suit for permanent injunction filed by the plaintiff against the defendants as well as the counter claim of the defendants.
2. The brief facts of the case are as follows : The plaintiff is the tenant in respect of the suit property bearing No. B1638, Shastri Nagar, Delhi under the defendant No. 1 since 1986 at a monthly rent of Rs. 495/. It is the case of the plaintiff that the defendant No. 1 since the inception of the tenancy has not carried out any repairs, white wash etc. in the tenanted premises and that all the expenses have been incurred by the plaintiff herself for maintaining the tenanted premises in a habitable condition. It is further stated that the furniture installed by the plaintiff in the suit shop has been badly damaged due to white ants and therefore, the plaintiff wants to replace the same by fixing / installing new furniture for the smooth functioning of the business in the tenanted shop.
3. It is further stated that the plaintiff hired a carpenter / labour for the removal of the damaged furniture and for fixing new furniture in place of the damaged furniture / counter / Almirah. However, the Suit No. 401/09 & Suit No. 139/11 Page 3 of 16 defendants called the local police to stop the said work. It is further stated that the furniture was already installed in the tenanted shop since the inception of the tenancy and the plaintiff is not causing any damage to the property nor any kind of addition or alteration in the suit property. It is further stated that on 28.8.2009, the defendants came to the tenanted shop and stopped the labours from installing furniture in the said tenanted shop. Hence, the present suit.
4. The defendants have filed a written statement cum counter claim to the suit of the plaintiff. In the written statement, it is admitted that defendant No. 1 is the owner and landlady of the suit premises and that the same was let out to the plaintiff. It is further stated that the defendant No. 2 is the husband of defendant No. 1 and defendant Nos. 3 and 4 are sons of defendant Nos. 1 and 2. It is further stated that main objective of the plaintiff is to sublet, assign or part with the possession of the suit premises.
5. It is further stated that the plaintiff without the permission of defendant No. 1 has carried out major addition, alterations and structural changes in the suit premises. Defendants have further averred that the suit premises were leased out to the plaintiff for tailoring purpose, however, the plaintiff also now wants to change the nature of Suit No. 401/09 & Suit No. 139/11 Page 4 of 16 the business for which he has carried out various additions, alterations and structural changes by inserting iron girders inside the wall and by creating a mezzanine floor. It is further denied by the defendants that the defendants did not carry out any repairs, white wash etc. since the inception of the tenancy and that the plaintiff incurred all the expenses for the same. It is further denied that the furniture installed / fixed by the plaintiff has been badly damaged due to white ants.
6. It is further stated that due to the illegal acts of the plaintiff, the defendant No. 1 was constrained to report the matter to the police on 26.8.2009 and 27.8.2009 and it is stated that on 27.8.2009, the plaintiff threatened defendant Nos. 1 and 3. It is further denied that on 28.8.2009, the defendants stopped the labour from installing furniture and fixtures as alleged. It is therefore, prayed that the suit of the plaintiff be dismissed.
7. In the counter claim filed by the defendants, the defendants have mostly reiterated the averments made in the written statement.
8. In the written statement filed by the plaintiff to the counter claim, it is stated that the plaintiff has no intention to cause any unauthorized construction in the tenanted premises nor has any Suit No. 401/09 & Suit No. 139/11 Page 5 of 16 intention to sublet, assign or part with the possession of the tenanted shop. The plaintiff further denied that the plaintiff has constructed a mezzanine floor by inserting iron girders inside the wall or with the help of stone slabs or that the plaintiff has caused any structural damage to the suit premises.
9. On the basis of the pleadings of the parties, following issues have been framed on 10.12.2009 by the Ld. Predecessor :
1. Whether the plaintiff is entitled to the decree of permanent injunction as prayed for? OPP
2. Relief.
On 11.7.2011, the following additional issues have been framed in respect of the counter claim :
1. Whether the defendant is entitled to the relief of permanent injunction as prayed for in clause (c) of the counter claim? Onus of proof on counter claimant.
2. Whether the defendant is entitled to the relief of mandatory injunction as prayed for in prayer (d) of the counter claim? Onus of proof on counter claimant.
3. Relief.
The matter was fixed for plaintiff evidence on 10.12.2009. Suit No. 401/09 & Suit No. 139/11 Page 6 of 16
10. In plaintiff evidence, the plaintiff was examined as PW1. In his examination in chief, PW1 mostly reiterated the averments made in the plaint and denied the averments made in the written statement. PW1 placed on record the following documents :
1. Site plan as Ex. PW1/1.
2. Rent receipt as Ex. PW1/2.
3. Photographs as Mark A to Mark D. Thereafter, the plaintiff was cross examined by the counsel for the defendant. Plaintiff evidence was thereafter, closed and the matter was listed for defendant evidence.
11. In the defendant evidence, Sh. Raj Kamal i.e. defendant No. 3 was produced as DW1. In his examination in chief, DW1 mostly reiterated the averments made in the written statement as well as counter claim. Thereafter, DW1 was cross examined by the counsel for the plaintiff. Defendant evidence was thereafter closed and the matter was fixed for final arguments.
12. During the course of the trial, defendant No. 1, Smt. Mahaviri Devi had expired and therefore, the plaintiff had dropped the proceedings against defendant No. 1 vide order dated 20.10.2010. Suit No. 401/09 & Suit No. 139/11 Page 7 of 16
13. I have heard all the parties and I have carefully perused the case file. Issue wise findings are as follows : 14. ISSUE NO. 1 It is the case of the plaintiff that the plaintiff is the tenant in the suit property and that the plaintiff wanted to install new furniture for replacing the old one as the said furniture had been damaged due to white ants. Per contra it is the allegation of the defendant in the written statement as well as the counter claim that the plaintiff is infact, trying to create a third party interest in the suit property by subletting, assigning the same and also that the plaintiff has created structural addition and alterations and changes in the suit property.
15. In order to prove his case, the plaintiff had examined himself as witness. In his testimony, the plaintiff has denied that he has caused serious damage to the tenanted shop and that he has made any structural changes therein and the plaintiff has reiterated the same in his examination in chief. In the cross examination of the DW1, it is conceded by DW1 that after month of MarchApril, 1986, no wood work has been done in the tenanted shop. In the cross examination, the defendant has denied the suggestion that the plaintiff is carrying on the wood work only after the furniture had been damaged and that the same does Suit No. 401/09 & Suit No. 139/11 Page 8 of 16 not amount to unauthorized constructions. It is further stated by DW1 in his cross examination that he does not remember the exact date, month or year when the white wash was carried out in the suit premises and the DW1 also admitted that the defendants are not in possession of any bills for the repairs carried out in the suit property being a petty amount. It is further conceded by DW1 that the property was leased out to the plaintiff without any wood work inside the same and that the wooden work was got done by the plaintiff.
16. From the testimony of DW1, it appears that the onus of maintenance of the suit property including the wood work has always been on the plaintiff. Therefore, as a necessary concomitant, it is the prerogative of the plaintiff being the occupant of the suit premises to maintain the furniture and other temporary wood work in the tenanted premises in order to carry out his work in the suit property as a tailor. Moreso, when the furniture has been destroyed by ants etc. Having said that, the plaintiff, however, cannot install permanent fixtures in the suit premises being only an occupant of the premises and not its owner. Moreover, the plaintiff cannot cause any structural damage to the suit property.
17. The plaintiff has also given an undertaking in the Court on Suit No. 401/09 & Suit No. 139/11 Page 9 of 16 11.7.2011 that he shall not carry out any addition, alteration or structural changes in the suit shop and that he shall not sublet, assign or part with the possession of whole or any part of the suit property and further that he shall not change the nature of his business of tailoring to any other business. Thus, the apprehension of the defendant that the plaintiff shall create any third party interest or that the plaintiff shall sub let the suit property is no longer subsisting as the plaintiff shall remain bound by his undertaking given in the Court.
18. Thus, as aforementioned in order to maintain the suit property in habitable condition and also in order to carry out his business as a tailor in the suit property, the plaintiff can however, install furniture which does not amount to installation of any permanent structure / fixture in the suit property. Therefore, this issue is decided in favour of the plaintiff and against the defendant.
19. RELIEF.
The plaintiff has been able to prove his case. The suit of the plaintiff is therefore, decreed. The plaintiff is therefore, entitled to install the furniture in the suit premises, however, the plaintiff is not entitled to install any kind of fixtures in the suit property . Therefore, the defendant Nos. 1, 2 and 3, their agents, successors, representatives etc. are hereby restrained from Suit No. 401/09 & Suit No. 139/11 Page 10 of 16 disallowing the plaintiff from carrying out the installation of furniture in the suit property bearing No. B1638, Shastri Nagar, Delhi. No order as to cost. Decree sheet be prepared accordingly.
20. ISSUE NO. 1 OF THE COUNTER CLAIM.
In prayer (c) of the counter claim, the defendant has prayed for the relief that the plaintiff be restrained from extending any threats to the defendant or from involving him in false cases of litigation as threatened by the plaintiff on 27.8.2007 for which a complaint was also written by the defendant. It is alleged by the defendant in his written statement that on 27.8.2009, the plaintiff extended threats to defendant Nos. 1 and 3 due to stoppage of the work by the defendants in the suit shop.
21. Section 41 (d) & (h) of Specif Relief Act, 1963 provides that, "41. Injunction when refused. An injunction cannot be granted
(d) to restrain any person from instituting or prosecuting any proceeding in a criminal matter;
(h) when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust".
Suit No. 401/09 & Suit No. 139/11 Page 11 of 16 Thus, the equitable relief of injunction cannot be granted to restrain a person from instituting any criminal proceedings. In effect, the relief (c) of the counter claim as prayed for by the counter claimant / defendant seeks to restrain the plaintiff from initiating criminal proceedings against the counter claimant which is barred by law and against principles of natural justice. Moreover, the relief that the defendant / counter claimant is seeking is not available under Civil law and pertains to criminal proceedings which this Court does not have the power to grant. Thus, the defendant / counter claimant has an equally efficacious remedy available under criminal law. Therefore, this issue is decided in favour of the plaintiff and against the counter claimant.
22. ISSUE NO. 2 OF THE COUNTER CLAIM.
It is the case of the counter claimant that the plaintiff has made structural changes in the suit property by constructing a mezzanine floor and inserting iron girders inside the walls of the suit property. However, in the written statement to the counter claim filed by the plaintiff, the plaintiff has baldly denied the said assertion. Even in the cross examination of PW1, when the PW1 was confronted with the photograph of the tenanted premises i.e. Ex. PW1/X3, the plaintiff admitted that the said photograph belongs to his tenanted premises and admitted that an iron girder was there in the suit shop. However, the Suit No. 401/09 & Suit No. 139/11 Page 12 of 16 plaintiff further stated that the said iron girder was already there in the suit shop. In his cross examination, the plaintiff also denied the suggestion of the counsel for the defendant that he had created a mezzanine floor or that he had caused any structural changes in the suit property without the consent of the defendant. Conspicuously, a doubt is cast on the veracity of the testimony of the plaintiff since nowhere in his pleadings the plaintiff has asserted that the mezzanine floor or iron girder had already been installed since the inception of the tenancy. It is only during his cross examination the plaintiff has stated that the iron girder was already in place. Even in the replication, the plaintiff has denied that the plaintiff has no right and interest to carry out any structural changes in the suit property. Therefore, the testimony of the plaintiff does not inspire confidence. Thus, it appears that the plaintiff has constructed a mezzanine floor in the suit shop and has installed iron girders in the wall for the same. The preponderance of probabilities lies in favour of the counter claimant and against the plaintiff. Therefore, the counter claimant is entitled to the relief of mandatory injunction as prayed for. This issue is therefore, decided in favour of the counter claimant and against the plaintiff.
23. RELIEF.
The counter claimant has proved his case against the Suit No. 401/09 & Suit No. 139/11 Page 13 of 16 plaintiff / nonclaimant. In view of the aforesaid discussion, the plaintiff, his agents, servants etc. are restrained from carrying out any addition, alteration and structural changes in the suit property and the plaintiff is directed to demolish the mezzanine floor as constructed by the plaintiff and also to remove iron girder from the suit property. The counter claim of the defendant is therefore, decreed. No order as to cost. Decree sheet be prepared accordingly. File be cosigned to record room.
Announced in the open court (Manisha Khurana)
on 12.07.2011 Civil Judge, North (IV)
Tis Hazari Courts, Delhi
12.07.2011
This judgment consists of 14 pages and all the pages are duly signed by me.
Suit No. 401/09 & Suit No. 139/11 Page 14 of 16 Suit No. 401/09 & Suit No. 139/11 12.07.2011.
Present : None.
Counter claim has been filed in the present case by the defendant against the plaintiff. However, the same has not been registered separately. The Ahlmad is directed to register the counter claim as well as reply to the same separately.
(MANISHA KHURANA)
CJ/N/DELHI/12.07.2011
4.00 pm
Present : Plaintiff in person.
Vide separate order of even date the suit of the plaintiff is decreed. The plaintiff is entitled to install the furniture in the suit premises, however, the plaintiff is not entitled to install any kind of fixtures in the suit property. Therefore, the defendant Nos. 1, 2 and 3, their agents, successors, representatives etc. are hereby restrained from disallowing the plaintiff from carrying out the installation of furniture in the suit property bearing No. B1638, Shastri Nagar, Delhi. No order as to cost. Decree sheet be prepared accordingly.
The counter claim of the defendant is decreed. The plaintiff, Suit No. 401/09 & Suit No. 139/11 Page 15 of 16 his agents, servants etc. are restrained from carrying out any addition, alteration and structural changes in the suit property and the plaintiff is directed to demolish the mezzanine floor as constructed by the plaintiff and also to remove iron girder from the suit property. Decree sheet be prepared accordingly. No order as to cost. File be cosigned to record room.
(MANISHA KHURANA) CJ/N/DELHI/12.07.2011 Suit No. 401/09 & Suit No. 139/11 Page 16 of 16