M/S. Fridge Home & Ors. vs Mcd & Anr.
2008 Latest Caselaw 1897 Del

*        THE HIGH COURT OF DELHI AT NEW DELHI

+          REGULAR SECOND APPEAL NO.148/2003

%                          Date of Decision : October 24, 2008

M/s. Fridge Home & Ors.                         .....Appellants

                                 Through : Mr. A. P. Aggarwal,
                                           Advocate

                              Versus

MCD & Anr.                                      .....Respondents

Through : NEMO

CORAM:

HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

1.       Whether Reporters of local papers may be
         allowed to see the judgment?                        No
2.       To be referred to the Reporter or not ?             No
3.       Whether the judgment should be reported
         in the Digest ?                                     No


SUDERSHAN KUMAR MISRA, J :

1. This regular second appeal under Section 100 of the Code

of Civil Procedure, 1908 impugns the judgment of the first

Appellate Court passed on 13.5.2003. It arises in the following

circumstances :-

2. It is the appellants' case that the first appellant is a

partnership firm called M/s. Fridge Home. The second and the

third appellants are partners in that firm. On 5.4.1981, the

second respondent, Smt. Harbans Kaur, inducted the appellants

as tenants in the suit premises, which is shop No.2 located in

1/1, Main Bazar, Kailash Nagar, New Delhi. In order to run

their business from the said shop, the appellants obtained a

licence from the Municipal Corporation of Delhi on 18.1.1982.

For this purpose, they had also furnished a site plan of the said

shop to the Municipal Corporation of Delhi.

3. It is also the case of the appellants that the second

respondent, Smt. Harbans Kaur, had originally let out the

adjoining shop No.1 to one Smt. Parvati, and that she had

obtained a decree of eviction and possession in respect thereof

against Smt. Parvati on 12.2.1982. The appellants then

contend that on 15.11.1982, the third appellant, Shri Paramjit

Singh, was inducted by Smt. Harbans Kaur as a tenant in that

shop. From there, Shri Paramjit Singh claims to be running his

own business, called M/s. Fridge Air. Smt. Harbans Kaur had

also instituted proceedings to evict Shri Paramjit Singh from

that shop. In defence to that suit, it was, inter alia, contended

that the aforesaid decree dated 12.2.1982 obtained by Smt.

Harbans Kaur against her erstwhile tenant, Smt. Parvati,

pertaining to shop No.1 is a nullity because the tenancy of Smt.

Parvati was protected under the Delhi Rent Control Act. In the

instant suit, the appellants contended that since respondent

No.2, i.e., Smt. Harbans Kaur, was proceeding to execute the

decree obtained by her against Smt. Parvati to recover

possession of shop No.1, they apprehended substantial damage

to the adjoining shop No.2, i.e., the suit property. They also

apprehended that by the execution of the decree for possession

of shop No.1, they may also be dispossessed from the suit

property, i.e., shop No.2 and consequently, they moved a suit

for injunction praying that the second respondent be restrained

from dispossessing the appellants from shop No.2 or any part

thereof since they are in lawful possession of the same. It was

contended that both shop No.1 and shop No.2 were different

and were under the tenancy of different persons, and therefore

had nothing to do with each other. They also stated that they

had lost the lease deed and other relevant documents of the

suit property, i.e., shop No.2, in the year 1984.

4. The suit was resisted, inter alia, on the ground that the

first appellant was not a registered firm and was, therefore, not

competent to file the suit. It was also alleged that this suit was

filed by the appellants in collusion with Smt. Parvati, who was

the erstwhile tenant of shop No.1, and that in collusion with

Smt. Parvati, the appellants have demolished a portion of the

wall in between the two shops. The owner, i.e., the second

respondent herein, also disputed the site plan of shop No.2, i.e.,

the suit property, annexed by the appellants to their suit. The

said respondent, however, admitted that shop No.2 was let out

to appellants No.2 and 3 on 5.4.1991 through a rent note. She

also alleged that the appellant had prevented her from

executing the decree of possession granted in her favour with

regard to shop No.1.

5. Before this court, counsel for the appellants confined his

case to one aspect only. He submits that the statement made by

DW-1, Shri Beant Singh, who was the General Attorney and

husband of the defendant, to the effect that, "the shop is in the

same position which was at the time when it was in occupation

of Parvati Devi", amounts to unequivocal admission on the part

of the defendant that the size and dimensions of the adjoining

shop No.1 remained unaltered and was the same as it was at

the time Smt. Parvati was in occupation of that shop. He

submits that in view of this admission, concurrent findings of

both the courts below to the effect that since shops No.1 and 2

are admittedly in possession of real brothers, there is a strong

probability of breaking and changing the shape of the common

wall separating the two shops, because of which permanent

injunction sought by the appellants deserves to be declined, is

unsupportable. He submits that under the circumstances, the

impugned decision has given rise to a substantial question as to

whether the courts below were justified in ignoring the

aforesaid admission made by DW-1. It is contended that this

admission established the case of the appellants/plaintiffs on all

fours and that since it was made by the husband of the owner of

the premises, who was arrayed as defendant No.2 in the suit,

the permanent injunction sought by the appellants could not

have been denied to them.

6. I am afraid and do not agree with the contentions of the

learned counsel for the appellants in this regard. To my mind,

no substantial question of law arises in the facts and

circumstances of the instant case. The statement of DW-1, Shri

Beant Singh, relied upon by counsel for the appellants, needs to

be read as a whole along with all the other facts and

circumstances that have come on record. Even otherwise, I do

not think that the statement is of much help to the appellants.

Counsel for the appellants submits that by saying that the said,

"shop is in the same position which was at the time when it was

in occupation of Parvati Devi", the witness meant that the size

of shop No.1 remained unaltered and that it was of the same

size throughout. However, the record shows that this statement

has been recorded immediately after the suggestion that there

was no removal of the common wall was denied by that witness.

The record does not show this statement to have been made in

response to any separate, specific suggestion. Furthermore, in

his examination-in-chief, this witness has made a categorical

statement that, "in the meantime wall between the shop No.1

and 2 which was common wall was demolished by the plaintiff,

and hence the separate entity of shop No.1 was distorted." It is,

therefore, obvious that in his examination-in-chief, the witness

had categorically and clearly stated that the size of the shop

had been changed by the appellant. If the appellants wanted to

rebut this, they could have simply suggested to that witness in

cross examination that the size of shop No.1 had remained

unchanged, and that consequently, the size of shop no.2, which

was the suit property and in respect of which permanent

injunction against dispossession was sought, had also remained

unaltered. Unfortunately, this was not done for reasons best

known to the appellants. Nothing has been elucidated in the

cross-examination to suggest that the size of the shop in

question remained the same. A mere isolated statement that,

"the shop was in the same position", which is not in response to

any specific suggestion, is not the same thing and cannot,

under the circumstances, be taken to mean that the size of the

shop in question remained unchanged. The words "position"

and "size" are not synonyms. They are entirely different words

with distinct meanings, and looked at in the light of the

statement of the same witness in his examination-in-chief that

the appellants had distorted the separate entity of shop No.1 by

demolishing the common wall between the two shops, his

statement in cross-examination that the shop, "was in the same

position", cannot be taken as an admission that the size of the

suit property had remained unchanged. Looking to the totality

of circumstances and the evidence as a whole, including the

examination-in-chief as well as the immediately preceding

statements in his cross examination, to my mind, this line in the

cross examination is quite vague and it cannot, without

anything more, turn the whole case around. Furthermore,

physical size of the premises is a straight forward question of

fact. It was always open to the plaintiffs/appellants to have

proved this fact by direct evidence of the same but they have

failed to do so. The learned Addl. District Judge has carefully

examined this question. He finds that even the shape and size

of shop No.2, as shown in the site plan furnished by the

appellants to the Municipal Corporation of Delhi, clearly shows

that the partition wall between the two shops has been

tampered with and that the size and shape of shop no.2, as

indicated on that map, is unusual and rarely seen. He finds that

whilst the size of shop No.1 is now hardly 2' x 4', the size of

shops No.2, 3 and 4 is much bigger than the size of shop No.1.

Furthermore, the learned Addl. District Judge has also taken

note of the fact that the third appellant was also disbelieved

with regard to the manner in which he claimed to have come

into possession of shop No.1 in the other suit he had filed

concerning that shop. According to the learned Addl. District

Judge, this also reflected on the conduct of the appellants,

meaning thereby, that looking to the totality of the

circumstances, he did not consider their conduct above board.

He also finds it unusual that both the brothers are running

similar business from adjoining shops and that too by similar

sounding names, i.e., "Fridge Air" and, "Fridge Home".

Furthermore, on the one hand, appellant No.3 claims to be a

partner of the appellant firm Fridge Home, along with his

brother, i.e., appellant No.2, which is carrying on its business in

shop No.2; at the same time, he also claims to be running an

independent proprietorship from shop No.1 and is trying to

base his possession of shop No.1 on that ground. It is also

noteworthy that the appellants failed to prove the original site

plan filed before the Municipal Corporation of Delhi for

obtaining a licence for shop No.2. Only a document purporting

to be a copy thereof was filed by the appellants. Even this did

not bear any seal of the office of the Municipal Corporation of

Delhi. Since the appellants had claimed that they had filed the

requisite plan with the Municipal Corporation of Delhi for

obtaining their licence, nothing prevented them from

summoning the records of the Corporation to prove this fact.

The Civil Judge has also noted that Smt. Harbans Kaur had

instituted a suit against Smt. Parvati on 23.9.1980, i.e., before

the instant suit came to be filed. Along with that suit, Smt.

Harbans Kaur also filed a site plan of shop No.1. Since that suit

was for recovery of shop No.1, there could be no reason for

Smt. Harbans Kaur to file a wrong site plan and get her own

suit defeated. Consequently, the learned Civil Judge has relied

on that site plan as denoting the correct position of shop No.1

and the suit property, i.e., shop No.2 since they abut each other

with a common wall in between. He has also found that the

plan filed by the appellants in the instant suit denotes a shape

which is improbable. To my mind, the approach of the Civil

Judge in this regard is unexceptionable.

7. It is also an admitted fact that on the site, there were four

shops and now only three shops are left. It is also quite clear

that shops No.1 and 2 have been merged by removal of the

common wall between the two. In my view, the decision of the

learned Addl. District Judge in upholding the judgment of the

Trial Court is well reasoned and comprehensive. The conclusion

reached by the courts below is plausible and is based on cogent

evidence. Under the circumstances, to my mind, no substantial

question of law arises in this case. The appeal is, therefore,

dismissed.

Sudershan Kumar Misra, J.

October 24, 2008 rs/OPN