Kamlesh Sharma And Anr. vs Bhu Dev Gaur
1995 Latest Caselaw 84 Del

JUDGMENT

C.M. Nayar, J.

(1) The present revision petition has been filed against the order dated 16/11/1988, passed by Additional Senior Sub Judge, Delhi. The learned Judge dismissed the appeal of the petitioner against the order dated 15/10/1988, by which the Trial Court allowed the application of the respondent/plaintiff under Order 39, Rules 1 and 2 of the Code of Civil Procedure and the petitioners were restrained from forcibly evicting respondent without due process of law.

(2) The respondent/plaintiff filed a suit for permanent injunction against the petitioners/defendants for restraining them and their agents from taking forcible possession of the shop in his occupation situated at a piece of land forming part of Khasra No. 112 in the revenue estate of village Civil Station in the area of Timarpur,Delhi, and as shown in red colour in the site plan, which was filed with the plaint.Respondent also moved an application under Order 39, Rules 1 and 2 Civil Procedure Code for ad interim injunction. The trial Judge considered the application as well as the respective contentions of the parties. The petitioners had contended that respondent was mere a licensee and, therefore, he was liable to beevicted. The trial Court held that the question whether the respondent is a licensee and there is a relationship of licensor and licensee between the parties or whether the respondent was owner by adverse possession have to be decided at the stage of the trial. The respondent was held to be in occupation of the premises and in this background the restraint order was passed on the petitioners.

(3) The petitioners were aggrieved by the order of the Trial Court and filed an appeal in the Court of Additional Senior Sub Judge. The Appellate Court has mentioned in the order that the respondent/plaintiff alleged that he was in possession in his own right and the petitioners had alleged that the said respondent was a licensee whose license had been revoked. The question whether the respondent was in occupation of the premises in his own right or whether he was merely alicensee, whose license had been revoked, is a question which was required to be decided by the evidence which the parties had yet to lead. The learned Judge further held that there was nothing on the record to show at that stage that the respondent was a licensee under the petitioner. The respondent was in continuous possession of the premises since 1984 and the learned Trial Court had rightly exercised discretion in passing the restraint order from forcibly evicting the respondent from the shop in question. The petitioners were aggrieved by the order of the Additional Senior Sub Judge and filed the present revision, petition.

(4) The learned Counsel for the petitioners has contended that the plaint does not disclose any cause of action and on present facts it can be held that the respondent was a mere licensee whose license had already been revoked. He has further argued that a person who is given possession of a property as a licensee cannot claim status of a lessee even if he is given exclusive possession. He has strongly relied upon the Full Bench judgment of this Court: as reported in ChanduLal BalKrishan, Madan Mohan, Mohan Lal v. M.C.D. 1978 R.L.R. 278.

(5) The learned Counsel has next found fault with the order of the Trial Court as well as of the Appellate Court on the ground that some amount of damages and license fee should have been fixed and the respondent should have been directed to deposit that money for use of the premises in question. This would have maintained the balance between the parties and the petitioners who are legally entitled to the premises, would not have suffered further on account of free use and occupation of the same by the respondent.

(6) There is no doubt that in case the respondent is held to be a licensee and he was given possession of the premises the rights accruing to him as a lessee will not arise and he is liable to be treated as a licensee and on the expiry of license he can always be asked to vacate the premises.

(7) The question, however, which arises in the present revision petition is as to whether the respondent has been held to be licensee. This point is not yet determined either by the Trial Court or by the Appellate Court. The said Courts have only determined that there is a prima facie case and balance of convenience is in favor of the respondent and protected his occupation. This, however, does not mean that the respondent has got the status of a lessee and is entitled to protection under the law. The Trial Court has merely restrained the petitioners from forcibly evicting the respondent except by due process of law. The Appellate Court has confirmed the order and protected the occupation of the respondent obviously during the pendency of the suit. The ultimate decision in the matter will be dependent on the findings in respect of the issues framed in the suit. The learned Counsel for the petitioner has stated that the issues have already been framed and the matter is ripe for trial. The petitioner shall be at liberty to raise the plea, as to whether, the respondent is liable to pay any damages as an interim measure during the pendency of the suit and in case such a plea is raised, the Trial Court shall decide according to law.

(8) The suit was filed as far back as 1988 and it will be in the interest of justice that the same is disposed of as expeditiously as possible. There is no infirmity and illegality in the order of the Trial Court as well as the Appellate Court which calls for interference in the present proceedings. This will, however, be subject to the respective contentions of the parties in the main suit. The revision petition is disposed of. The parties are directed to appear before the Trial Court on 10thFebruary, 1995, for further proceedings in matter. There will be no order as to costs.