Parmanand Jha vs Sanatan Dharam Sabha
1997 Latest Caselaw 662 Del

JUDGMENT

Manmohan Sarin, J.

(1) The petitioner is aggrieved by the order dated 17.5.1997, passed by the Senior Civil Judge in MCA.197/90, dismissing the appeal filed by the petitioner against the order dated 11.5.1990, passed by Shri H.S. Sharma, Sub-Judge, Ist Class, Delhi, dismissing the application of the petitioner under Order Xxxix Rules 1 & 2 of the Code of Civil Procedure.

(2) Petitioner had filed a suit for permanent injunction wherein he moved an application under Order Xxxix Rules 1 & 2, Cpc, for restraining the respondent Sanatan Dharam Sabha from dispossessing him without the due process of law. Plaintiff claims to be a tenant in possessing of a room at the Radha Krishna Mandir, Shahid Capt.Gaur Marg, East of Kailash, New Delhi, on a monthly rental of Rs. 300.00 , including water and electricity charges. He claims to have been using common a latrine and bathroom.

(3) The case of the petitioner is that he has been functioning as the head priest of the temple and had also been employed as Clerk-cum-caretaker by the respondent Sabha at the temple. A sum of Rs. 800.00 per month was paid to the petitioner while the respondent got a receipt signed only for Rs. 100/. It is claimed that his salary in the year 1975 was Rs. 300.00 per month and rent of Rs. 200.00 was deducted from January 1988. Prior to 1988, Rs. 50.00 were deducted for the old room. Petitioner claims that he had asked for an increase in the salary as a result of which the respondent asked him to vacate the premises.

(4) Respondents deny that the petitioner was a tenant. It is claimed that he was, by virtue of his employment, given a room, free of rent, for residence. Electricity and water charges were paid by the respondent. The petitioner was paid salary @ Rs. 100.00 . However, he was entitled to perform Poojas and conduct other religious ceremonies, the income from those was retained by him.

(5) Petitioner claims that he has been in settled possession. He has a ration card and his name appears in the voters list. It is contended that even a trespasser could not be dispossessed without the due process of law. It is contended that the petitioner being in settled possession, the question whether it was in the capacity as a tenant or by virtue of his being an employee, required evidence and consideration during trial. Pending the same, his possession ought to be protected.

(6) The learned Civil Judge held that the petitioner did not have a prima facie case. He held that the appointment letter dated 31.10.1983, which is not disputed by the petitioner, negated the petitioner's plea of tenancy. In para No. 2 of the said letter it is specifically mentioned that the petitioner had been given one room within the premises of the temple and that no rent was to be charged. The petitioner, at best, could be said to be a Licencee, which stood terminated. Petitioner himself claims, to be under threat of dispossession.

(7) Learned Senior Civil Judge also re-affirmed the findings of the Civil Judge and, in particular, placed reliance on the letter dated 31.10.1983, the signatures on which were admitted by the petitioner.

(8) Before the Senior Civil Judge, the petitioner had assailed the finding of the Civil Judge on the ground that the petitioner had been denied the opportunity to bring on record the evidence in support of his case of tenancy and the trial Court had failed to exercised the discretionary power to protect the possession of the petitioner in between. Learned Senior Civil Judge also distinguished on facts, the judgments cited by the petitioner, viz. Kamlesh Sharma & Another Vs. Bhu Dev Gaur and Hem Chand Jain Vs. Anil Kumar & ors. . The learned Senior Civil Judge also considered the judgment of the Apex Court in Ram Krishna Mahale Vs. Mrs. Shobha Vehkat Rao , wherein it was observed that a person in settled possession of the property should not be dispossessed by the owner except by the due process of law. Reliance was also placed on the judgment of this Court in Gm Modi Hospital & Research Centre Vs. Shankar Singh Bhandari to the effect that the person who asserts that he should not be dispossessed must show that he has a right under law to remain in possession. The learned Senior Civil Judge thereupon held that possession of the petitioner was, at best, of a Licencee and he could not be said to be in settled possession.

(9) Learned counsel for the petitioner again urged before me that once the possession of the petitioner was duly established over a long period of time, it was settled possession and the petitioner should be permitted to lead evidence to establish his claim of tenancy and during this period the possession of the petitioner ought to be protected.

(10) I am in full agreement with the findings reached by the Civil Judge as well as the Senior Civil Judge that the petitioner has failed to make out a prima facie case. The petitioner has failed to even prima facie make out a case of being a tenant. Letter dated 31.10.1983, which is admitted totally, negates the claim of tenancy. Neither has a receipt ever been issued with regard to rent being paid by the petitioner nor has any salary receipt showing deduction of rent brought to the attention of the Court. Learned counsel for the petitioner relied on Machhi Singh Vs. State of Punjab (1983 (3) Scc 489) to urge that a person in settled possession ought not to be dispossessed. Learned counsel also relied on the decision in State of U.P. & Ors. Vs. Maharaja Dharmender Prasad Singh . This authority is to the effect that the lessor cannot resume possession by use of force even after expiry or even termination of the lease. This is a case relating to re-entry and is clearly distinguishable from the facts of the present case, where petitioner has failed to make out a prima facie case for tenancy requiring investigation during trial.

(11) In Kamlesh Sharma & Another Vs. Bhu Dev Gaur the Court had held that the petitioner had a prima facie case of being a tenant and the balance of convenience was in his favour. The possession was, therefore, protected, which was assailed in revision. The Court only observed that the Courts below had protected the occupation of the respondent during the pendency of the suit and the point whether the respondent was a tenant or a licencee was yet to be determined. The said decision can, at best, be an authority for protection of possession once prima facie case is established of being a tenant and is of no help to the petitioner.

(12) In Gn Mehra Vs. International Airport Authority of India reported at 1996 I Ad (Delhi) 1042 I had occasion to consider the plea whether a person whose licence had expired by efflux of time could be evicted without following the procedure under the Public premises (Eviction of unauthorized Occupants) Act, 1971 by use of self permissible force by the licensor. The plea taken by the licencee was that even such a person could not be dispossessed without due process of law. The case law was reviewed and I find it appropriate to reproduce the relevant portion of the judgment: The question to be considered is the nature of the plaintiff's occupation. The plaintiff was a licencee and the said licence had expired. In the case reported at 1978 Delhi 174 - Chandu Lal Vs. Municipal Corporation of Delhi a Full Bench of this Court held that the plaintiff, whose licence stood revoked was not in settled possession and was not entitled to any protection on against dispossession. The Court permitted self help and use of minimum force to the owner. The Court held that it was a matter of privilege to occupy the kiosk. The Court as noted approved the use of minimum force and self help without owner being driven to obtain a decree from a Court of Law. The owner had a right to re-enter the premises and reinstallation provided it did not use more force than necessary. Reference may also be made usefully to 1996 (1) Ad Delhi 299 - Delhi Tourism and Transportation Development Corporation Ltd. Vs. D.R. Mehta & Sons wherein Ramamoorthy,J after reviewing the Law on the subject held that upon revocation of the licence, the person in occupation becomes a trespasser and had no right to continue in possession. Reference may also be made to - D.H. Maniar & Others Vs. Waman Laxmi Kulav wherein the Apex Court laid down that after the revocation of the licence the person in possession becomes a trespasser and he has no semblance to a right to continue in occupation of the premises. He cannot seek the protection from the Court of Law. Reference may also be made to 1995 R.L.R. 112 - Mahadev Saularam Vs. Pune Municipal Corporation. In this case, the premises in question had been acquired under Land Acquisition Act. However, the owners/appellants were permitted to occupy the premises on leave and licence basis. As the Appellants did not vacate, an eviction order was passed, which was challenged and matter went upto Supreme Court. The Special Leave Petition was dismissed. However, a suit was filed wherein injunction was refused, but was granted in appeal. The said order was reversed by the High Court under Article 227 and the appellant challenged it in the Supreme Court. The Apex Court laid down that once the appellant had no legal right to remain in possession, no injunction could be granted. Mr. Lekhi, attempted to distinguish the case by saying that there was an eviction order. However, the said eviction order does not make any material difference as to the principle laid down by the Court that prior to grant of discretionary relief of injunction, the Court must be satisfied that a strong prima facie was made out. Further refusal of injunction would cause irreparable loss. The balance of convenience must be in favour of granting injunction. The Court held that it was settled that no injunction could be granted against the true owner at the instance of a person in unlawful possession.

(13) To sum up, petitioner has failed to make out a prima facie case of being a tenant requiring an enquiry or investigation during trial. The petitioner's case at best is of a Licencee whose Licence stands terminated. It is not a case of settled possession. It is a case where petitioner continues to be in unlawful occupation and is not entitled to the equitable relief of injunction.

(14) Having considered and discussed the factual matrix of the case and legal position, I find no material irregularity or error in exercise of jurisdiction in the impugned appellate order or the order of the Civil Judge declining the grant of injunction. The revision petition has no merit and the same is dismissed.