IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 4817 of 2009 Date of Decision : December 21, 2009 M/s Maa Bhagwati Suppliers, Kendriya Vihar, Sector-56, Gurgaon ....Appellant Versus Kendriya Vihar Apartment Welfare Association, Kendriya Vihar, Sector-56, Gurgaon .....Respondent CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present : Ms. Sharmila Sharma, Advocate T.P.S. MANN, J. Suit file by the appellant for permanent injunction against the respondent, was dismissed by the learned Courts below and, therefore, it is now before this Court by way of a second appeal filed under Section 100 of the Code of Civil Procedure. According to the plaintiff-appellant, it had taken shop, shown with letters ABCD in red colour in the site-plan, on lease from the defendant-respondent on 18.5.2003 at a monthly rent of Rs.3,000/-. It started running a Mother Dairy booth in the said shop. Show cause notice dated 4.10.2005 was issued by the defendant-respondent wherein the appellant was told that it was selling products other than that of Mother Dairy and Safal, it was charging exorbitant rates and even the rates were not displayed on the notice board. Vide said notice, the defendant had given 30 days time to the plaintiff for showing cause as to why lease agreement be not revoked. According to the plaintiff, it had R.S.A. No. 4817 of 2009 -2- never violated the terms and conditions of the lease deed. No rent was outstanding. Despite the same, the defendant, under the garb of the aforementioned show cause notice, was bent upon to dispossess it from the shop in question. While opposing the suit, the defendant took up the plea that the plaintiff had taken an open space for sale of only Mother Dairy products. Despite the same, the plaintiff raised unauthorized construction and violated the conditions of the lease deed by selling products other than that of Mother Dairy and Safal. It was charging exorbitant rates besides not displaying the rates on the notice board. Accordingly, the show cause notice was issued. The lease deed was, thereafter, rightly terminated. It was the case of the defendant that the plaintiff had taken open space measuring 20' x 20' by way of lease deed dated 18.5.2003 Ex.D1 on a lease money of Rs.3,000/- per month. Vide letter dated 13.1.2003 Ex.D2 the plaintiff admitted regarding allotment of open space. Despite the same, the plaintiff raised unauthorized construction without the consent of the defendant. Apart from the unauthorized construction, the plaintiff was found selling products other than that of Mother Dairy and Safal, charging exorbitant rates and failing to display the rate list. It is not in dispute that the period for which the plaintiff was granted lease to run Mother Dairy and Safal in the premises of the R.S.A. No. 4817 of 2009 -3- defendant-Association has expired on 17.5.2008. In such a situation, the plaintiff could be termed to be one in unauthorized possession. It cannot seek the discretionary relief of an injunction, and, that too, against the true owner. Mere fact that the plaintiff had been depositing the amount equivalent to the lease money after the expiry of the lease, is no ground to hold that it was being accepted as a lessee by the defendant as such a deposit was made in the Court and never accepted by the defendant. While non-suiting the plaintiff, learned Courts below rightly held that it had not come to the Court with clean hands as it suppressed the material facts regarding illegal construction of the shop over the open space, which it had taken at a monthly rent of Rs.3000/-. In view of the above, no fault can be found with the findings arrived at by the learned Courts below in non suiting the plaintiff. These findings are neither perverse nor do they suffer from any illegality or infirmity. They cannot be upset and, that too, in a second appeal, which is maintainable only on some substantial question of law and not otherwise. None of the substantial questions of law, as formulated by learned counsel for the appellant, arises for determination. The appeal is, therefore, dismissed, in limine. ( T.P.S. MANN ) December 21, 2009 JUDGE ajay-1