Smt Tara Devi & Anr vs Mcd

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                               Date of Judgment: 23.03.2012

+     CM(M) 349/2012 & CM No.5295/2012


SMT TARA DEVI & ANR                                     ..... Petitioners
                  Through                Mr. B. S. Chaudhary, Adv.

                     versus


MCD                                                   ..... Respondent
                              Through    Mr. Sanjeev Sabharwal, Adv.


      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR


INDERMEET KAUR, J. (Oral)

1 The impugned order is dated 08.12.2011 which has endorsed the finding of the trial Judge dated 08.02.2011 whereby the application filed by the petitioners under Order XXXIX Rules 1 & 2 of the Code of Civil Procedure (hereinafter referred to as the 'Code') had been dismissed. 2 Record shows that the present suit is a suit for permanent and mandatory injunction which has been filed by the two plaintiffs against the MCD seeking a prayer that the MCD be restrained from CM(M) No. 349/2012 Page 1 of 5 dispossessing the petitioners or from removing their articles from the two suit shops i.e. shops No.1074-75, Khoya Mandi, Bijli Road, Pili Kothi, Delhi. Contention is that petitioner No. 1 along with her husband was running the business of grocery and dry fruits from the aforenoted shops; after the death of her husband, she continued this work with her son; the respondent started creating hurdles; 'tehbazari' rights have been granted to the petitioners but for one reason or the other, the possession of the petitioners is disturbed by the MCD; they have made illegal demands upon the petitioners. Cause of action last arose in favour of the petitioners and against the respondent when on 11.12.2010 in the late evening, the officials of the MCD entered into the shop of the plaintiffs and sought to remove their articles; suit was accordingly filed. 3 Both the courts below have declined the prayer made by the plaintiffs seeking interim protection on their application filed under Order XXXIX Rules 1 & 2 of the Code. The impugned judgment had noted that not a single document has been placed on record by the petitioners to show their possession much less settled possession to afford them an order in their favour.

4 Learned counsel for the petitioners has relied upon the logo of the CM(M) No. 349/2012 Page 2 of 5 MCD (page 116 of the paper book); submission being that this logo has been issued by the MCD itself qua the disputed shops and as such it shows that the respondent /MCD has recognized their tehbazari rights. This submission is disputed by the learned counsel for the respondent who has appeared on an advance notice; his contention is that this logo is for the shops allotted in favour of the allottees Sunita Devi and Vinay Kumar; this logo does not pertain to the present petitioners; original record of the department has also been brought before the Court to substantiate this submission.

5 The second document relied upon by the learned counsel for the petitioner is a document which is a receipt (page 110 of the paper book); this shows that certain storage charges of `62/- and `762/- have been taken by the MCD in the year 1987-1988; the contention of the petitioners is that this document also establishes a fact that the petitioners were in possession of the premises. Counter submission of the department is that these are store charges which have been levied upon the petitioners; the illegal display of the articles had been removed by the MCD and stored in the warehouse of the MCD for which the petitioners had to pay requisite fee which was in the sum of `762/- and CM(M) No. 349/2012 Page 3 of 5 `62/- respectively before they could get their articles released. This document also does not show the legal possession of the petitioners as has been urged by them.

6 The last document relied upon by the learned counsel for the petitioners is the challan issued by the MCD in the sum of `1,600/- in favour of petitioner No. 1 and petitioner No. 2 (page 94 of the paper book); this challan also shows that the petitioners have in fact been challaned for unauthorized occupation of the aforenoted premises; they could not on their own put up khokha for the sale of the articles as have been noted in the plaint.

7 Both the two courts below have correctly appreciated that there is no document on record to establish the prima-facie legal possession of the plaintiffs; it was in this background that the impugned order had noted that the petitioners are not entitled to any interim relief. Vehement arguments have continued to be addressed by the learned counsel for the petitioner in spite of the fact that even on a specific query put to the learned counsel as to whether he has any other document apart from the noted ones, he has no answer but to continue to repeat the same arguments.

8 The impugned order in this background, rejecting an order under Order XXXIX Rules 1 & 2 of the Code declining to grant the petitioners any interim prayer over an alleged illegal right does not in any manner suffers from an infirmity. This petition is an abuse of the process of the Court. Petition is dismissed with costs of `10,000/-.

INDERMEET KAUR, J MARCH 23, 2012 A CM(M) No. 349/2012 Page 5 of 5