Ranbir Singh vs Vidya Sagar Sood
1996 Latest Caselaw 974 Del

JUDGMENT

Lokeshwar Prasad, J.

(1) The present Revision Petition is directed against order dated the 2nd May, 1989, passed by the learned Additional District Judge, Delhi in Mca No. 19/84 - entitled Ranbir Singh and Others v. Vidya Sagar Sood b Others, whereby the learned Additional District Judge dismissed the appeal of the petitioners filed by them against the order dated 8th August, 1984, passed by the learned Sub Judge 1st Class, Delhi in Suit No. 304/84 entitled Ranbir Singh & Others v. Vidya Sagar Sood and Others.

(2) The facts relevant for the disposal of the present Revision Petition, briefly stated, are that the petitioners have filed a suit for permanent injunction against the respondents in the Court of learned Civil Judge, Delhi, averring that M/s. Senior Estate Agency (petitioner No. 5), a firm of which petitioner Nos. 1 to 4 are the partners, is a tenant in respect of property, bearing No. 35/1 and 35/2, Raghunandan Singh Building, H-Block, Connaught place. New Delhi as also the terrace (as shown red in the site plan annexed to the plaint), forming part of the petitioner's tenancy. It is averred that originally one Shri Bhagat Singh was the tenant for the entire premies, consisting of two shops and the terrace above as shown red in the site plan. Subsequently M/s. Senior Estate Agency (petitioner No. 5) became the tenant of the above said premises. As per the averments made in the plaint the respondents are the neighbours of the petitioners and are carrying on their business in the adjoining shops. In the plaint it is also stated that the petitioners are in possession of the tenanted premises since 1947 and have construed a kitchen, a bathroom and a store cum servant quarter on the terrace in or about 1947. It is further stated that the entrance to the terrace is from the premises of the petitioners i.e., from the residential-cum-commercial portion of Shop No. 35/1 and 35/2, Raghunandan Singh Building, H-Block, Connaught Place, New Delhi and no outsider can enter the terrace without first entering into the residential-cum-commercial portion of Shops No. 35/1 and 35/2, under the tenancy of the petitioners. It is averred that the respondents with ulterior motive and with the help of 'Goondas', are bent upon harassing and creating problem/trouble for the petitioners by threatening and trying to dispossess the petitioners from the above said premises. The petitioners, therefore, filed a suit for permanent injunction against the respondents with the prayer that the respondents be restrained from dispossessing the petitioners from Shops No. 35/1 and 35/2, Raghunandan Singh Building. H-Block, Connaught Place, New Delhi and the terrace above the said shops, more particularly shown red in the site plan annexed to the plaint.

(3) The petitioners alongwith the plaint also filed an application under Order 39 Rules I and 2 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the CPC'). The learned trial Judge vide order dated 30th July, 1984 appointed Mr. I.S. Kharbanda, an Advocate as a local Commissioner and the local Commissioner, in compliance with the orders of the Court, visited the spot, made inquiries and thereafter submitted his report dated the 1st August, 1984. The local Commissioner has reported in his above said report that the petitioners have direct approach and access to the terrace and that the respondents have no direct or indirect approach or access to the same. He has also reported that the petitioners are in possession of premises No. 35/1 and 35/2, Raghunandan Singh Building, H-Block, Connaught Place, New Delhi and are also in possession and control of kitchen, bathroom and store-cum-servant-quarter marked 'A', 'B' and 'C' on the site plan annexed to the said report and are fully in control and in possession of the terrace and the same is being used and enjoyed by them.

(4) The learned Trial Judge vide order dated 8th August, 1984 declined to give any relief to the petitioners and dismissed their application, filed by them under Order 39 Rules 1 and 2, CPC.

(5) The petitioners challenged the order dated 8th August, 1994, passed by the learned Sub Judge, Delhi in appeal and the learned Additional District Judge, Delhi vide impugned order dismissed the appeal also filed by the petitioners with costs.

(6) Feeling aggrieved, the petitioners have preferred the present revision. Notice of the revision was given to the respondents who have entered appearance through their Advocate.

(7) During the pendency of the revision, one of the respondents, namely, Shri B.R. Dhiman (respondent No. 2), filed an application under Order 23 Rule 3, Civil Procedure Code stating therein that he has no right or interest in the property in dispute which is in the possession and tenancy of the petitioners.

(8) I have heard the learned Counsel for the petitioners at length and have also carefully gone through the documents/material on record. I could not have the benefit of the arguments of the learned Counsel for the respondents as on 18th November, 1996 when the matter was fixed for final arguments, none appeared on behalf of the respondents despite the fact that the matter was called out twice -- earlier at its turn and later at the end of the list at 3.00 p.m.

(9) During the arguments, the learned Counsel for the petitioners while referring to the pleadings of the parties and the report of the local Commissioner dated the 1st August, 1984, submitted that the impugned order was against law and facts, resulting into miscarriage of justice and therefore liable to be set aside.

(10) In so far as the above aspect is concerned I would first examine the scope of interference by the High Court in such like matters in exercise of powers under Section 115, Civil Procedure Code and thereafter would revert back to the facts of the present case.

(11) As per settled, law culled out from various decisions, the discretionary orders, passed by the Trial Court should not be lightly interfered with and if the finding, made by the lower Court, is neither manifestly perverse nor erroneous, the High Court cannot substitute its findings for the one reached by the lower Court on a reappraisal of evidence. But when the matter impugned is perverse or is contrary to the provisions of law, interference becomes inevitable for meeting the ends of justice.

(12) In case Vinod Kumar Arora v. Smt Surjeet Kaur, , their Lordships of the Supreme Court have held : "In our view/the High Court was fully justified in rejecting the finding of the Rent Controller and the Appellate Authority, even though it is a finding of fact, because both the Authorities have based their findings on conjectures and surmises and secondly because they have lost sight of relevant pieces of evidence which have not been controverted." "Having regard to all these vitiating factors, the High Court was fully entitled to reverse the findings of the Rent Controller and the Appellate Authority and examine the case of the respondent and give her relief. The so-called findings of fact suffer from inherent defects which deprive them of their binding force on the Revisional Court."

(13) Clause (b) of Proviso to Sub-section (1) of Section 115, Civil Procedure Code provides that the High Court shall not, under the above section, vary or reverse any order made or any order deciding an issue, in the course of a suit or other proceedings except where the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom the same was made.

(14) In the light of the legal principles, noticed hereinabove, it is clear that the powers under Section 115, Civil Procedure Code can only be exercised in exceptional cases where the Court feels that the order is perverse or is contrary to the provisions of law or that the order if allowed to stand would occasion failure of justice or would cause irreparable injury to the party against whom the same was made.

(15) With the above said statement of law I now revert to the facts of the case at hand.

(16) On a perusal of the impugned order dated the 2nd May, 1989, passed by the learned Additional District Judge, Delhi, it is apparent that the same is based on the premises that the petitioners are tenants only in respect of the two shops bearing Nos. 35/1 and 35/2, Raghunandan Singh Building, H-Block, Connaught Place, New Delhi and the terrace above the aforesaid two shops and that they are in possession of the above mentioned portion of the property in dispute (Para 5 of the impugned judgment).

(17) From a perusal of the Trial Court record it is apparent that the above findings of the learned Additional District Judge, on which the impugned order is based, are against the pleadings of the parties in the Trial Court. The petitioners/plaintiffs in the plaint, have made a specific averment to the effect that petitioner/plaintiff No. 5, which is a firm of which petitioners/plaintiffs I to 4 are the partners, in a tenant in respect of property Nos. 35/1 and 35/2, H- Block, Connaught Circus, Raghunandan Singh Building, New Delhi and terrace above shops. In Para 7 of the plaint, the petitioners /plain tiffs have again made a specific averment staling therein that the petitioners/plaintiffs are in possession of the above tenanted premises since 1947 and have constructed a kitchen, bathroom and a store-cum-servant quarter on the terrace in the year 1947. In the prayer clause of the plaint again a specific prayer has been made by the petitioners/plaintiffs to the effect that a decree for permanent injunction, in favour of the plaintiffs and against the defendants, be passed restraining the defendants, their employees, legal heirs, agents, servants, administrators etc. from dispossessing the plaintiffs from the tenant premises bearing Nos. 35/1 and 35/2 and the terrace above shops in Raghunandan Singh Building, H- Block, Connaught Circus, New Delhi, shown red in the site plan without due process of law. In the application dated 30th July, 1984, filed under Order 39 Rules I and 2 read with Section 151, Civil Procedure Code again a specific prayer has been made to the effect that the respondents 1 to 4 be restrained by means of an ad interim injunction not to interfere with the peaceful possession and use of the demised terrace, shown in red in site plan and situated in premises Nos. 35/1 and 35/ 2, Raghunandan Singh Building, H-Block, Connaught Place, New Delhi in the occupation of the plaintiffs/applicants 1 to 5.

(18) The learned trial Judge, with a view to find out as to who is in possession of the property in dispute appointed Mr. I.S. Kharbanda an Advocate as a local Commissioner vide order dated 30th July, 1984. The local Commissioner visited the premises in dispute and submitted his report dated 1st August, 1984. In his report dated the 1st August, 1984, the local Commissioner has categorically stated that the petitioners/plaintiffs are in possession of the premises in dispute i.e. 35/1 and 35/2, Raghunandan Singh Building. H-Block, Connaught Circus, New Delhi, kitchen, bathroom and store-cum-servant quarter (tin shed). The local Commissioner has also categorically stated in his above said report that the petitioners/plaintiffs have access and control over the terrace and are using and enjoying the same. From the above said report of the local Commissioner, it is also clear that on the day the local Commissioner visited the premises, the local Commissioner found the petitioners/plaintiffs in possession of the property in dispute including the terrace portion. The report of the local Commissioner, as already stated, is dated the 1st August, 1984 and is on record. Till date no objection to the said report has been filed by any of the parties.

(19) The observations of the learned trial Judge and that of the learned Additional District Judge in so far as the same relate to the report of the local Commissioner, are also not tenable in the eyes of law because at this stage the Court is not concerned with the merits of the case. At this stage the Court for grant of interim relief, has simply to see whether the petitioners have,a prima fradie case whether the balance of convenience in his favour of the petitioners and if the interim relief is not granted in that event the petitioners would suffer such an irreparable loss which cannot be compensated in terms of money.

(20) On the basis of material on record, more particularly, the facts stated in the report of the local Commissioner dated the 1st August, 1984, it is apparent that the petitioners/plaintiffs have a prima facie case, the balance of convenience is also in their favour and if the interim relief, as prayed, is not allowed in that event irreparable loss/damage is likely to be caused to the petitioners/ plaintiffs.

(21) In view of the above discussion the petition is allowed. The impugned order is set aside and respondents I to 4 are restrained from interfering in the peaceful possession and use of the demised terrace, shown red in the site plan annexed to the plaint situated in premises No. 35/1 and 35/2, Raghunandan Singh Building, H-Block, Connaught Place, New Delhi, in the occupation of the petitioners/plaintiffs, till further orders. In the facts and circumstances of the case, no order as to costs.

(22) Nothing stated hereinabove shall amount to expression of any opinion on the merits of the case by this Court.

(23) Trial Court record be returned forthwith and thereafter the file -be consigned to Record Room.