* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 03.05.2011
+ R.S.A. No.35/2006 & CM No. 1362/2006 (for stay)
SMT PRERNA ARORA . ...........Appellant
Through: Mr. Rajat Aneja, Advocate
Versus
SHRI VIJAY PAL RANA & ORS. ..........Respondents
Through: None.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J. (Oral)
1 This appeal has impugned the judgment and decree dated 06.08.2005 which had endorsed the finding of the trial Judge dated 13.08.2002 whereby the suit filed by the plaintiff Prerna Arora (seeking a mandatory injunction to the effect that the locks illegally put upon the godowns and the office block at 46/5, Khera Kalam Road, Khera, P.S. Samaypur Badli, Delhi by the defendant be directed to be removed; further prayer was that a decree for RSA No.35/2006 Page 1 of 4 permanent injunction be granted in favour of the plaintiff restraining the defendant from removing the goods of the plaintiff) had been dismissed.
2 The case of the plaintiff is that she is the tenant of the defendant @ Rs.34,000/- per month. Apart from four godowns, a residential/office block had also been let out to the plaintiff which comprised of two rooms on the ground floor and one room on the first floor. As per averments in the plaint, three godowns had been handed back to the defendant but the defendant had illegally put his locks on remaining godown as also on the residential/office block. The prayers made in the plaint are aforenoted. The plaintiff had also filed an application under Order 6 Rule 17 of the Code of Civil Procedure (hereinafter referred to as the „Code‟) seeking amendment in her plaint as also the second application under Order 1 Rule 10 of the Code.
3 The trial Judge had held that the suit is not maintainable in the present form; the court was of the view that the plaintiff is admittedly not in possession of the suit property; mandatory injunction could not have been granted.
4 This view was endorsed in the first appeal.
5 This is a second appeal. It is yet at the stage of admission. Today vide separate order, the appeal has been admitted and the RSA No.35/2006 Page 2 of 4 substantial question of law has been formulated. It reads as under:-
"Whether the findings in the impugned judgment dated 06.08.2005 endorsing finding of the trial Judge dated 13.08.2002 is a perverse finding and if so, its effect?"
6 The arguments urged on behalf of the appellant have force. The plaintiff has specifically averred in paras 8 & 9 of the plaint that he had handed over only three godowns out of four godowns to the defendant; the fourth godown had been illegally locked by the defendant; office block had also been illegally taken over by the defendant by snatching the keys of the field staff of the plaintiff. There is no reason as to why the prayers made in the plaint (original plaint) were not maintainable. The suit was maintainable. The finding in the impugned judgment which had endorsed the finding of the trial Judge is an illegality on this count. This is a fit case for remand.
7 Matter is accordingly remanded back to the concerned court. For the said purpose, the parties are directed to appear before the District & Sessions Judge, Tis Hazari, Delhi on 11.05.2011 at 10:30 AM who shall assign the case to the concerned Civil Judge who shall decide it on merits keeping in view of the fact that the suit (original plaint) was well maintainable. The applications of the plaintiff under Order 6 Rule RSA No.35/2006 Page 3 of 4 17 and under Order 1 Rule 10 of the Code shall also be considered afresh.
8 Appeal is disposed of in the above terms.
INDERMEET KAUR, J.
MAY 03, 2011
a
RSA No.35/2006 Page 4 of 4