Jagdish Prasad Gupta vs Kamal Kumar Gupta
1997 Latest Caselaw 147 Del

JUDGMENT

S.N. Kapoor, J.

(1) An application under Section 151, Civil Procedure Code was moved by the petitioner seeking a direction to pay the damages at the rate of Rs. 4,000.00 per month. That plea was rejected by the learned Additional District Judge on the ground that the rent of the premises was Rs. 350.00 per month. There was controversy with regard to the status of the defendant as tenant. Consequently, it was not possible to pass an order as prayed for,

(2) Feeling aggrieved, the present revision petition has been filed.

(3) Relevant facts in brief are as under: (A)The petitioner is father of the respondent/tenant. The premises No. 5908, Subhash Mohalla No.2,GandhiNagar,Delhi consistsof2shops,6rooms,5kitchens and one bath, one latrine and a staircase as shown in "Annexure A". In 1978 the respondent/son was allowed to use 3 rooms ad 3 kitchens. Just for the sake of obtaining licence the petitioner issued a rent receipt for the period 1st April, 1978 to 30th April, 1978 (AnHexureB). The respondent in Marrh, 1981 vacated the permises. The respondent left and carried on his business at Govind Garh, Patiala upto August, 1982. The respondent was allowed to do business in 2 rooms and 3 kitchens. In January, 1988 the petitioner urged the respondent to vacate the premises since he was merely a licensee. When the respondent started making additions and alternations a Suit No. 343/90 was filed for permanent injunction against the respondent. That suit is still pending. The respondent/son illegally constructed and occupied the whole of the property, excepting one shop and refused to vacate the same. Thereafter a suit No. 4/92 for declaration, possession and damages as well as perpetual and mandatory injunction, was filed and therein the above said application under Section 151 was moved.

(4) After going through the record and the impugned order it appears that so long as the claim of the petitioner that the respondent was just a licensee and not a tenant the matter could not be decided. It is apparent that this fact cannot be decided without recording the evidence. If prima fade view is taken that admittedly a rent receipt was issued by the petitioner, and as such it is evident that the respondent was a tenant and not a licencee. If the respondent is tenant then suit itself may be barred in view of provisions of Section 50 of the Delhi Rent Control Act. It may be mentioned that the question of damages will arise only after it is decided whether the petitioner is a tenant or a licensee whose licence has been revoked. There is yet another aspect and that is about the computation of damages. Neither the application nor the present revision petition lays down any basis for arriving at a conclusion that damages could be payable at monthly rent of Rs. 4,000.00 . Consequently, the impugned order was the only order which could be passed in the circumstances, and accordingly there is no force in this revision petition. It is dismissed accordingly.

(5) A copy of this order be sent to the learned Trial Court concerned through learned Additional District Judge for information and to proceed in this matter in accordance with law.