Delhi High Court
Mr. Vinod Kumar vs Delhi Wakf Board on 21 October, 2009
Author: V.B.Gupta
* HIGH COURT OF DELHI : NEW DELHI
FAO No.318 of 2009 & CM No.14687/09
% Judgment reserved on: 20th October, 2009
Judgment delivered on: 21st October, 2009
Mr. Vinod Kumar,
S/o Sh. Rajesh Kumar,
R/o Shop No. 1116,
Masjid Kazi Wali Main Bazar,
Pahar Ganj,
New Delhi
....Appellant
Through: Mr. K. S. Bhati, Advocate
Versus
Delhi Wakf Board,
Through its Chief Executive Officer,
5028, Darya Ganj,
New Delhi.
...Respondent
Through: Nemo
Coram:
HON'BLE MR. JUSTICE V.B. GUPTA
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported
in the Digest? Yes
FAO No.318/09 & CM No. 14687/09 Page 1 of 8
V.B.Gupta, J.
Appellant by way of present appeal has
challenged order dated 14th July, 2009, passed by
Additional District Judge, Delhi. Vide impugned order,
application of appellant under Order 39 Rule 1 and 2
Code of Civil Procedure (for short as „Code‟) has been
dismissed by trial court.
2. Appellant‟s case is that, he is a lawful tenant and
is in possession of Shop no. 1116 at Masjid Kazi Wali,
Main Bazar, Pahar Ganj, New Delhi, where he is
running business of readymade garments since 11th
June, 1997. Appellant has taken possession of the said
shop from Sh. Mahinder Kumar, who was a tenant in
the suit property. Appellant filed an application on 12th
February, 1998, for transfer of tenancy rights in his
favour, but no decision has been taken as yet by
respondent.
3. All of a sudden on 24th January, 2007, appellant
received an eviction order dated 22nd January, 2007,
under Section 54 of the Wakf Act, 1995 ( for short as
„Act„), in which it was stated that appellant is an
encroacher in the said suit property. Appellant made
representation to respondent stating that he was a
lawful tenant in the property. Respondent passed an
order dated 24th February, 2007 asking him to vacate
the said property within 15 days.
4. Respondent in its written statement took the plea
that appellant is in illegal occupation of the suit
property and possession of shop was taken by him
without prior permission and consent of respondent.
Appellant has no document to support his case and is
simply an encroacher.
5. It is contended by learned counsel for appellant
that respondent has passed the eviction order without
giving sufficient opportunity to the appellant, while it
is admitted fact that respondent accepted/received
arrears of rent from appellant.
6. Other contention is that appellant is in possession
since 1997 as sub-tenant of the respondent. In 1997,
tenant Mahinder Kumar filed an application for
transfer of tenancy and handed over the possession to
appellant. Appellant has not been given due
opportunity for consideration of his application for
change of tenancy. Application of the appellant for
change of tenancy, is pending with respondent.
Without disposing of the same, eviction order has been
passed, against the appellant. Under these
circumstances, impugned order is liable to be set
aside.
7. Principles for grant of temporary injunction are
well settled. There has to be,
(i) Prima facie case;
(ii) Balance of convenience should be in favour
of party seeking injunction and;
(iii) Irreparable loss would be caused if
injunction prayed for is not granted.
8. It is appellant„s own case, that he is a sub-tenant
in the property. However, there is nothing on record to
show that appellant took possession of shop in
question from the previous tenant Mr. Mahinder
Kumar, with prior permission and consent of the
respondent.
9. Appellant has nowhere stated as to on what rate
of rent, he has taken the shop in question and to whom
he is paying the rent and upto what period rent has
been paid.
10. Appellant himself has placed on record copy of
eviction order dated 22nd January, 2007, passed under
Section 54 of the Act. As per this eviction order,
appellant is an unauthorized occupant of Wakf
property, that is shop in question. A show cause notice
was issued to him. Father of appellant appeared on
several dates and was heard. He could not show any
authority under which appellant was occupying the
Wakf property. Appellant did not file any reply to the
show cause notice.
11. However, appellant made representation against
the eviction order taking the plea that, he took the
possession of shop from Mr. Mahinder Kumar, in the
year 1997 and filed an application before Wakf Board
on 12th February, 1998 for becoming tenant of the
Board. Appellant also filed photo copy of receipt of
Rs.21,000/- which was paid by appellant in the name of
tenant. As per photocopy of the receipt it was issued in
the name of Mr. Mahinder Kumar, the previous tenant
and not the present appellant.
12. There is no document on record to show that
appellant is a sub-tenant in the shop in question or has
taken possession of the shop, with prior permission or
consent of the respondent.
13. Trial court also observed that appellant has no
documents to show in his favour, ever issued by
respondent. The appellant is not having prima facie
case or balance of convenience in his favour.
14. In Shiv Kumar Chadha Vs. Municipal
Corporation of Delhi, (1993)3 SCR522, Supreme
Court observed that;
"A party is not entitled to an order of
injunction as a matter of right or
course. Grant of injunction is within the
discretion of the court and such
discretion is to be exercised in favour of
the plaintiff only if it is proved to the
satisfaction of the court that unless the
defendant is restrained by an order of
injunction, an irreparable loss or
damage will be caused to the plaintiff
during the pendency of the suit. The
purpose of temporary injunction is,
thus, to maintain the status quo. The
court grants such relief according to
the legal principles-ex debito justitiae.
Before any such order is passed the
court must be satisfied that a strong
prima facie case has been made out by
the plaintiff including on the question of
maintainability of the suit and the
balance of convenience is in his favour
and refusal of injunction would cause
irreparable injury to him".
It further observed;
"the court should be always willing to
extent its hand to protect a citizen who
is being wronged or is being deprived of
a property without any authority in law
or without following the procedure
which are fundamental and vital in
nature. But at the same time judicial
proceedings cannot be used to protect
or to perpetuate a wrong committed by
a person who approaches the court".
15. As appellant is an unauthorized occupant of shop
of respondent, prima facie, he has no legal right to
remain in possession. I do not find any reason to
disagree with the findings of the trial court.
16. Present appeal is thus not maintainable and same
is dismissed with costs of Rs.5,000/-. Appellant is
directed to deposit the costs, with trial court, within
one month from today, failing which it shall recover
the same in accordance with law.
CM NO. 14687/2009
17. Dismissed.
18. Copy of this order be sent to trial court for
compliance.
October 21, 2009 V.B.GUPTA, J.
bhatti
