* HIGH COURT OF DELHI : NEW DELHI
+ CS (OS) No.857/2004
% Judgment decided on : 03.06.2011
FLT. LTD. GURCHARAN SINGH SOHAL (RETD.)
......Plaintiff
Through: Ms Maninder Acharya, Adv. with Mr Om
Prakash, Adv.
Versus
MRS. JASBIR KAUR SOHAL & ORS. .....Defendants
Through: Ms Prachi Vashishta, Adv.
Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH
1. Whether the Reporters of local papers may
be allowed to see the judgment? No
2. To be referred to Reporter or not? No
3. Whether the judgment should be reported Yes
in the Digest?
MANMOHAN SINGH, J.
1. Issues in the matter were framed on 20.05.2011. As per the said order, issue No.1 is to be treated as preliminary issue which read as under:--
"Whether the suit for mandatory injunction is maintainable in view of the fact that the Plaintiff is not in the physical possession of suit property? OPP"
2. The court has heard the matter on the issue of maintainability of the suit for mandatory injunction in the absence of relief of possession of the suit property bearing Shop bearing No.22 (Ground Floor), Archana Shopping Complex, Greater Kailash, New Delhi-1100 48 and the case CS (OS) No.857/2004 Page 1 of 7 has been reserved for orders.
3. The plaintiff has filed the present suit, inter alia, for perpetual and mandatory injunction against the defendants, regarding a shop/showroom bearing No.22, Archana Shopping Complex, Greater Kailash-I, New Delhi (hereafter referred to as "the Suit Property").
4. The plaintiff and defendant No.1 are husband and wife. It is the case of the parties that the suit property is owned by the plaintiff which is in his name and is not disputed by the defendants. At present he is not in physical possession of the same.
5. From perusal of the plaint and particularly paragraph No.19 as alleged by the plaintiff that defendant No.1 being wife was allowed to attend his business of M/s. Thousand Plus. Defendant No.1 had in her possession one set of keys of the suit property. On 05.07.2004 she opened the showroom and forcibly restrained the plaintiff from entering into his own shop where the plaintiff was running his sole proprietary concern since 1992. The wife of the plaintiff, defendant No.1 taking advantage of plaintiff's ill health has been visiting the shop and is allowed to manage the business of plaintiff from time to time. The defendant No.1 is thus permissive user/licensee of the suit shop.
6. The plaintiff's title qua suit property is not in dispute except the defence has been set up by the defendant to this effect that father of defendant No.1 had financed the plaintiff to purchase the suit shop.
7. As per the case of the plaintiff, the said shop was acquired by the plaintiff and his mother from its erstwhile owner vide an agreement CS (OS) No.857/2004 Page 2 of 7 dated 27.05.1980 and plaintiff was put in actual physical possession of the suit shop on 10.02.1979. Plaintiff has obtained telephone connection and electricity connection in the suit shop in the name of his business. The Sales Tax Registration was obtained and bank account was opened by the Plaintiff. Plaintiff has been declaring the suit shop as his personal asset in his income tax returns. Trade licence from MCD was also obtained by the Plaintiff in his own name and as sole proprietor. Plaintiff has been regularly discharging his ownership rights by paying the property tax to the MCD qua the suit shop. Plaintiff bore the cost of installing the fire fighting equipments in the suit property. The Plaintiff is bearing the monthly maintenance charges qua the suit shop. Plaintiff's mother also relinquished her half share in the suit shop in favour of the Plaintiff by Relinquishment Deed dated 07.08.2003. Manager and staff were employed by the plaintiff and salaries of the staff is paid by the plaintiff from the business income of his proprietary concern. In the Will dated 22.07.2003 the defendant has not even claimed any right qua the suit shop which is mentioned in para 16 of the Plaint.
8. The plaintiff claims that while he is not in possession of the suit property, the plaintiff had allowed the defendant No.1 to use the suit property as a licensee, he is, therefore, not obliged to seek possession of the suit property and a mere suit for injunction as filed by the plaintiff, is maintainable.
9. It is also urged that there is no requirement of a written agreement/license deed to show that the suit property was given to the CS (OS) No.857/2004 Page 3 of 7 defendant No.1 by the plaintiff and a mere oral permission to use the suit property is sufficient.
10. The learned counsel for the plaintiff in support of his submissions has relied on the following judgments:
(a) Delhi Gate Service Private Ltd. Vs. Caltex (India) Ltd. AIR 1962 P & H 370
(b) Sant Lal Jain Vs. Avtar Singh, AIR 1985 SC 857,
(c) E.P. Jeorge Vs. Thomas John, AIR 1984 KER 224,
(d) Smt. Shanti Devi & Anr. Vs. Mela Ram 1971 RLR 65 (1) Del.
(e) Merchant Vs. Charters (1977) 3 ALL ER 918 (922).
It has been held in the judgments cited at bar that suit for mandatory injunction, the prayer No.4 as prayed in the instant suit, is maintainable, if plaintiff approaches the Court within the reasonable period from revocation of licence.
11. Learned cousel for the defendant No.1 argues that there is not even a whisper of an averment in the plaint that the Suit Property was given by the plaintiff to the defendant No.1 as a licensee. Secondly, there is no averment in the entire plaint to even suggest that the plaintiff had permitted/allowed the defendant No.1 to use the Suit Property.
12. It is also argued by the learned counsel that the defendant No.1 has been in possession of the Suit Property since 1992. The plaintiff in fact delivered to the defendant No.1 the Suit Property for life as part of his legal and moral obligation to maintain the defendant No.1 and their children.
CS (OS) No.857/2004 Page 4 of 7
13. As regards the title of the Suit Property, it is argued that the plaintiff is not in the ownership of the suit property and in the written statement it is averred that it was the defendant No.1's father, who had financed the suit property and the remaining money came about by selling of the stridhan of the defendant No.1.
14. Learned counsel for defendants argued that the defendant No.1 is running the business of M/s. Thousand Plus, as also M/s. Jass Kaur Inc. since 1992 and relevant documents have been filed by the defendant No.1 who has been paying all the dues of the said property since 1992, hence the contention of the plaintiff that the plaintiff has filed the suit immediately without any delay is without any substance and decisions referred by the plaintiff are not applicable under these circumstances.
15. Lastly, it is argued by the counsel that a mere suit for injunction does not lie, if the plaintiff seeking such relief is not in physical possession. In support of her submission, the learned cousnel for the defendant No.1 relies upon the following judgments:
(i) Virender Gopal v. MCD AIR 2007 DEL 183
(ii) Anathula Sudhakar v. P. Buchi Reddy (2008) 4 SCC 594
16. During the course of hearing it was enquired by the court as to whether any cogent evidence is available on record to show that the defendant No.1 is in possession since 1992. There was no positive reply except the counsel just referred the pleadings. From the documents placed by the plaintiff it appears prima facie that there is no cogent CS (OS) No.857/2004 Page 5 of 7 evidence produced by the defendant No.1 in this regard.
17. Therefore, it has not been shown by defendants that plaintiff came to court after a considerable delay. It has also been held in para 7 of Sant Lal Jain (supra), that the suit is, in effect, one for possession though couched in the form of a suit for mandatory injunction as what would be given to the plaintiff in case he succeeds is possession of the property to which he may be found to be entitled. Therefore, the Apex Court has held that person should not be denied relief merely because he had couched the plaint in the form of a suit for mandatory injunction.
18. Prima facie, it appears that the plaintiff had approached the court at the first available opportunity without any delay by filing of the present suit. Licence may not necessrily be in writing due to the fact that the plaintiff and the defendant No.1 are husband and wife.
19. That the judgments Virender Gopal (supra) and Anathula Sudhakar (supra) referred by the defendants are clearly distinguishable and the same are not applicable in the facts and circumstances of the instant case. In the said judgment, plaintiff was sleeping for his rights and title was also in dispute, but in the present case, the position is materially different.
20. In the case of E.P. George (supra) and Smt. Shanti Devi (supra), it has been specifically held that the suit for injunction is maintainable in the absence of relief of possession in case the plaintiff approaches the court within reasonable time. From the pleadings in the plaint, it appears that the plaintiff has approached the court in a period of CS (OS) No.857/2004 Page 6 of 7 even less than a month. Thus, I am of the considered opinion that the suit filed by the plaintiff is prima facie maintainable and can be proceeded with for trial. However, it is made clear that any finding arrived at by means of this order shall not have any bearing when the matter is taken up by the court at the time of final hearing of the suit after trial. The question raised by the defendant would be considered and re-assessed after trial on the basis of evidence provided by the parties. Thus, these findings are tentative and are based upon the averments made in the plaint and documents available on record.
List the matter before Joint Registrar on 13.9.2011 for evidence.
MANMOHAN SINGH, J.
JUNE 03, 2011 dp CS (OS) No.857/2004 Page 7 of 7