IN THE COURT OF MS. SNIGDHA SARVARIA, CIVIL JUDGE, CENTRAL05 TIS HAZARI COURTS , DELHI [CASE NUMBER] IN THE MATTER OF: Sh. [ENTITY] S/o Sh. Ram Sewak Vishwakarma Proprietor of M/s Vishwakarma Wielding Works Shop No. 1, 7/10, Indra Vikas Colony, Delhi89 Plaintiff VERSUS 1. Smt. [ENTITY] W/o Late Sh. Laxmi Narain R/o B189, Indra Nagar, Near Panchwati, Azadpur, Delhi33 Also At: 7/10, First Floor, Indra Vikas Colony, Delhi09. 2. Smt. [ENTITY] W/o Sh. Satpal R/o B189, Indra Nagar, Near Panchwati, Azadpur, Delhi33. 3. Smt. [ENTITY] D/o Sh. Laxmi Narain R/o D29, Ashok Road, Adrash Nagar,Delhi. 4. Mr. [ENTITY] S/o not known R/o D29, Ashok Road, Adrash Nagar,Delhi. 5. Mr. [ENTITY] [CASE NUMBER] Page No. 1 of 11 S/o Sh. Satpal R/o B189, Indra Nagar, Near Panchwati, Azadpur, Delhi33. Defendants Date of Institution : 03.09.2007 Date of Reserving for Judgment: 06.05.2014 Date of Judgment : 20.05.2014 SUIT FOR PERMANENT INJUNCTION JUDGMENT:
1. Vide this judgment, I shall decide a suit for permanent injunction filed by the plaintiff.
2. The brief facts of the case as per the plaintiff are that, the plaintiff is a lawful tenant under the defendant No. 1 and is in exclusive physical possession of shop No. 1 at ground Floor, measuring 6 x 19 Sq. Yds. In a built up property bearing No. 7/10, Indra Vikash Colony, Delhi09 as shown in red colour in the site plan. It is further submitted that the said shop was let out to the plaintiff by Mr. [ENTITY] on 02112003 at a monthly rent of Rs. 2200/ excluding electricity charges. The plaintiff is running his business in the name and style of M/s Vishwa Karma Wielding Works. It is further submitted that the landlord had also taken a sum of Rs. 25,000/ as a refundable security. The terms of the tenancy were settled orally. It is further submitted that Mr. [ENTITY] expired on 23092006 leaving behind his mother defendant No. 1 . Defendant No. 2 & 3 are his sisters and defendant No. 4 is son of defendant No. 3 and defendant No. 5 is son of defendant No. 2. It is further submitted that after the death of Mr. [ENTITY] defendants started visiting and creating nuisance at the shop in question. It is further submitted that in the month of May, 2007 the defendants visited the shop in question and started threatening the plaintiff for taking forcible possession of the shop, in case monthly rent is not enhanced indiscriminantly. But some how with intervention of local resident monthly rent was enhanced by a sum of Rs. 300/, thus the present monthly rent is Rs. 2500/ which is being paid to the defendant No. 1 by way of account payee cheques drawn on HDFC Bank. It is further submitted that the plaintiff has also got installed a separate electricity meter paying huge amount to NDPL, however the connection has been installed in the name of defendant no. 1 as the defendant No. 1 did not issue no objection in favour of the plaintiff. It is further submitted that on 26082007 the defendants along with some goonda elements visited the shop and started throwing goods of the plaintiff from the shop and tried to take forcible possession of the shop but due to interventions of the local residents the same was saved. Again on 30082007, the defendants visited and tried to dispossess the plaintiff and threatened the plaintiff to come again and take possession forcible. Hence, the present suit is filed by the plaintiff.
3. On the other hand the defendants in their WS has contended that plaintiff has not come to the court with clean hands and suppressed the material facts. Also, there is no cause of action in favour of the plaintiff and against the defendant. It is further submitted that after the death of Sh. [ENTITY] the plaintiff is trying to grab the suit property. Further , it is submitted that the plaintiff has not paid any electricity charges to the NDPL and there were arrears of Rs. 1,07,256/ issued from NDPL but instead of making fraud upon the defendant No. 1, the plaintiff has got installed another connection in her name and is not clearing the previous dues. Further the defendants have denied all the allegations of the plaintiff which are made in his plaint and prayed that the suit of the plaintiff be dismissed.
4. From the pleading of the parties following issues were framed vide order dt. 25082010 :
i) Whether the plaintiff is entitled to the decree for permanent injunction, as prayed for? OPP
ii) Relief
5. To prove his cases plaintiff has examined himself as PW1. PW1 has filed his evidence by way of affidavit Ex. PW1/1. In his affidavit PW1 has reiterated the facts mentioned in his plaint and relied upon the following documents:
i) Site plan of the suit property is Ex. PW1/A.
ii) Photocopy of Receipt of LIC is Mark A.
iii) Photocopy of Receipt of PACL Ltd. Is Mark B.
iv) Photocopy of Telephone Bill is Mark C.
v) Photocopy of letter dt. 05102006 written by LIC to plaintiff is [ENTITY] The PW1 was also crossexamined by the Ld. counsel for the defendant.
6. On the other hand the defendants have examined Smt. [ENTITY] as DW1 who has filed her evidence by way of affidavit Ex. DW1/A. In her evidence DW1 has reiterated the facts mentioned in her WS. She was also crossexamined by the Ld. counsel for the plaintiff.
7. I have heard the counsel for both the parties and gone through the record carefully and perused the relevant provision of law.
8. My issue wise finding is as under:
9. Issue no. 1 Whether the plaintiff is entitled to the decree for permanent injunction, as prayed for? OPP It is well settled that if the relief of injunction claimed by the applicant is hit by the provisions of [SECTION] of the [ACT], then such reliefs cannot be granted to the applicant. Also, a party seeking an equitable relief of injunction should approach the court with clean hands.
It is the admitted case between the parties that the plaintiff is running has business in the name and style of M/s. Vishwakarma Building Works in the shop no. 1 on the ground floor measuring 6x19 sq yds. in the built up property bearing no. 7/10, Indira Vikas Colony, Delhi110009. It is also admitted by the defendant/DW1 that the plaintiff is a tenant in the suit shop and was inducted as a tenant by Late SH. [ENTITY]. Admittedly, the plaintiff after the death of SH. [ENTITY] started paying rent to the deceased defendant no. 1 Smt. [ENTITY].
10.The case of the plaintiff is that on 26/8/2007 and 30/8/2007 he was tried to be dispossessed by the defendant. The averments in this regard have not been disproved by the defendant who could have disproved the same by bringing some independent witness in the evidence. Also, it is well settled that the relief of injunction is an equitable relief and a discretionary relief which the court exercises according to sound legal principles and ex debito justitiae. It has been held in [PRECEDENT] that the relief of injunction under the provisions of the [ACT] is purely discretionary and the plaintiff cannot claim it as right. The relief has to be granted by the Court according to sound legal principles and ex debito justitiae. The Court has to administer justice between the parties and cannot convert itself into an instrument of injustice or an engine of oppression. In these circumstances, while exercising its discretionary powers the Court must keep in mind the well settled principles of justice and fair play and should exercise the discretion only if the ends of justice require it, for justice is not an object which can be administered in vacuum. Clearly, if a party supresses material facts from the court then the relief of injunction cannot be granted to that party.
11.It is no more res integra that even a person in long continuous possession, cannot seek injunction against the true owner, however, the true owned cannot dispossess a person in possession without the due process of law and the same was held in [PRECEDENT] , the relevant paragraph is reproduced as under:
11.We have already extracted the summary of conclusions arrived at by the learned Single Judge of the High Court. That shows that his conclusions were vitiated by his view that the appellant had title and possession followed title. It is quite obvious that the learned Single Judge had not taken note of the principle of possessory title or the principle of law that a person who has been in long continuous possession can protect the same by seeking an injunction against any person in the world other than the true owner. It is also well settled that even the owner of the property can get back his possession only by resorting to due process of law.
(see also: DTTDC vs. M/s DR Mehara & SonsAIR 1996 Del 351 (DB
12. It is well settled that if a person is sitting in possession of a property then his possessary rights are to be protected and only an owner has a right to dispossess the person in possession that to in accordance with the law. In this regard, the decision of the Hon'ble Apex Court in [PRECEDENT] is worth quoting, same is reproduced as under:
5. [ENTITY] states in Jurisprudence (Twelth Edition), "few relationships are as vital to man as that of possession, and we may expect any system of law, however primitive, to provide rules for its protection Law must provide for the safeguarding of possession. Human nature being what it is, men are tempted to prefer their own selfish and immediate interests to the wide and longterm interests of society in general.
But since an attack on a man's possession is an attack on something which may be essential to him, it becomes almost tantamount to an assault on the man himself, and the possessor may well be stirred to defend himself with force. The result is violence, chaos and disorder." (at pp. 265, 266).
"In English Law possession is a good title of right against anyone who cannot show a better. A wrongful possession has the rights of an owner with respect to all persons except earlier possessors and except the true owner himself. Many other legal systems, however, go much further than this, and treat possession as a provisional or temporary title even against the true owner himself. Even a wrongdoer, who is deprived of his possession, can recover it from any person whatever, simple on the ground of his possession. Even the true owner, who takes his own, may be forced in this way to restore it to the wrongdoer, and will not be permitted to set up his own superior title to it. He must first give up possession, and then proceed in due course of law for the recovery of the thing on the ground of his ownership. The intention of the law is that every possessor shall be entitled to retain and recover his possession, until deprived of it by a judgment according to law."
([ENTITY], ibid, pp. 294295).
"Legal remedies thus appointed for the protection of possession even against ownership are called possessory, while those available for the protection of ownership itself may be distinguished as proprietary, in the modern and medieval civil law the distinction is expressed by the contrasted terms petitorium (a proprietary suit) and possessorium (a possessory suit)" ([ENTITY], ibid, p. 295).
7 In the oftquoted case of [PRECEDENT], this Court held that a person in possession of land in assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. When the facts disclose no title in either party, possession alone decides. The Court quoted Left's maxim 'Possessio contra omnes valet praeter eur cut ius sit possessionis (He that hath possession hath right against all but him that hath the very right)" and said. "A defendant in such a case must show in himself or his predecessor a valid legal title, or probably a possession prior to the plaintiff's and thus be able to raise a presumption prior in time".
13.On perusal of the record, it is manifest that even the defendants have not been able to prove that the plaintiff has filed this suit with the mala fide of getting the suit shop transferred in the name of the plaintiff by pressurizing the defendants.
In view of the foregoing discussion and considering the aforesaid sound legal principle that even a true owner cannot dispossess a person in possession of his property without, the due process of law, the plaintiff is entitled to the relief of permanent injunction prayed for. This issue is accordingly decided in favour of the plaintiff and against the defendants.
14.Relief:
In view of the aforesaid discussion, a decree of permanent injunction is passed in favour of the plaintiff and against the defendants from dispossessing the plaintiff forcibly from the tenanted shop no. 1 on the ground floor measuring 6x19 sq yds.
in the built up property bearing no. 7/10, Indira Vikas Colony, Delhi110009 specifically shown in red colour in the site plan without the due process of law. The parties are left to bear their own costs.
Decree sheet be prepared accordingly. File by consigned to the record room as per rules after due compliance.
Announced & signed in the ( [ENTITY]) open court on 20.05.2014 Civil Judge/Central05/Delhi