Om Prakash Saini vs Sushil Kumar
2011 Latest Caselaw 1199 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                Date of Judgment: 28.02.2011

+             RSA No.43/2011 & CMs No.4311-12/2011



OM PRAKASH SAINI                                ...........Appellant
                          Through: Mr. Akhil Mittal, Advocate.

                    Versus

SUSHIL KUMAR                                      ..........Respondent.
                          Through:     Nemo.


CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

    1. Whether the Reporters of local papers may be allowed to
       see the judgment?

    2. To be referred to the Reporter or not?                    Yes

    3. Whether the judgment should be reported in the Digest?
                                                         Yes



INDERMEET KAUR, J. (Oral)

1 This appeal has impugned the judgment and decree dated

29.01.2011 which has affirmed the findings of the trial Judge dated

28.04.2010 whereby the suit filed by the plaintiff Om Prakash

seeking permanent injunction against the defendant restraining

him from dispossessing him from the portion of the

premises/compound of Laxmi Super Station, Laxmibai Nagar, New

Delhi had been dismissed.

2 The plaintiff claimed himself to be a tenant in respect of the

said portion since 1976. His case was that the initial rate of rent

was `300/- per month which was later on enhanced to `600/- per

month and was inclusive of electricity and water charges. He is in

physical possession of the suit property. He had been assessed to

house tax by the NDMC and he is being paid house tax since then.

He had also paid rent to the defendant. He was being harassed by

the defendant and the defendant was threatening to dispossess

him. Suit was filed.

3 In the written statement, the defendant controverted his

claim. It was stated that the plaintiff had encroached upon the

premises of the plaintiff on the night intervening 05/06.07.1999;

police complaints had been lodged; it was denied that the plaintiff

is a tenant in the premises. It was stated that the plaintiff is

stealing electricity and report to that effect had also been lodged;

the plaintiff is a tress-passer. The suit premises had been leased

out by M/s Hindustan Petroleum to the defendant and the house

tax was being paid by the defendant in his own name.

4 On the pleadings of the parties, the following two issues were

framed:-

"1. Whether the plaintiff is entitled to relief of permanent injunction as claimed in the plaint? OPP.

2. Relief."

5 Oral and documentary evidence was led. Three witnesses

were examined on behalf of the plaintiff. The defendant had

examined two witnesses. The site plan of the portion in occupation

of the defendant was proved as Ex. PW-1/C. The plaintiff in support

of his oral evidence had relied upon a rent receipt Ex. PW-1/B for

the sum of `900/- stated to be the rent payment for a period of

three months. This document is dated 21.05.1976. Perusal of this

document clearly shows that it was a payment made on account of

tyre repairs; it nowhere mentions that it was issued to the plaintiff.

Trial Judge had noted that the plaintiff had admitted in his cross-

examination that the rent was being paid by him to the Manager;

the said document was even otherwise not issued by the Manager.

This document, after careful scrutiny, had been discarded. Ex. PW-

1/1 to Ex. PW-6 were the challans allegedly issued by the NDMC to

the plaintiff for keeping some tools and machines on the road. They

range between dates 16.12.1988 to 15.07.1999. Trial Judge had

noted that these documents on scrutiny clearly show that the

plaintiff was running his tyre repair shop on a pavement in front of

Laxmi Super Service. He was challaned by the NDMC for keeping

his tools and machines on the pavement. This was clear from the

deposition of PW-3; suit had been filed by the plaintiff in the year

1999; after that date, no challans had been issued by the NDMC to

the plaintiff. These documents had also been discarded as they did

not in any manner create any tenancy in favour of the plaintiff qua

the defendant. The plaintiff had also relied upon Ex. PW-3/2

showing the statement of account with the NDMC; in this

document also the name of the assessee is M/s Hindustan Petrol

Pump Ltd, M/s Luxmi Super Service and the name of the plaintiff

Om Prakash has been appended. Ex. PW-3/2 clearly shows that the

assessee is M/s Luxmi Super Service; it is also not the case of the

plaintiff Om Prakash that he is the owner of M/s Luxmi Super

Service. This document also does not in any manner advance the

case of the plaintiff. PW-3 had also in his cross-examination

admitted that the house tax is demanded from the owner as also

from the occupier of the premises. This answers the query as to

why this notice had been issued to the plaintiff.

6 These were the only documents filed by the plaintiff in

support of his case to establish his tenancy qua the defendant all of

which had been belied. Per contra, DW-1 had stated that Luxmi

Super Service existed since 1962; DW-2 had proved the dealership

agreement Ex. DW-1/2 between the HPCL and the defendant; DW-2

had also deposed that the petrol pump was being operated by the

defendant and it had been allotted to HPCL by the Ministry of

Urban Development who had given it on a rental basis to the

defendant. This oral and documentary evidence appreciated by the

trial Judge had been reaffirmed by the first appellate court; it was

held that the plaintiff is only a tress-passer. These are two

concurrent findings of fact against the plaintiff.

7 This is a second appeal. It is at the admission stage. The

substantial question of law has been framed at page 8 of the body

of the appeal. Vehement contention of the learned counsel for the

appellant is that even assuming he is a tress-passer, he cannot be

dispossessed without due process of law; his suit was simplicitor a

suit for injunction.

8 The plaintiff is forgetting a fact that for the relief of

injunction which is an equitable relief, he must establish that he

has come to the Court with clean hand; this has been negatived.

The plaintiff had claimed himself to be a tenant which claim has

not been proved; he being only a tress-passer, he could not have

been granted the equitable relief of injunction. Discretion had been

exercised by the two fact finding courts below in a fair and

judicious manner. No substantial question of law has arisen.

9 Appeal as also pending applications are dismissed in limine.

INDERMEET KAUR, J.

FEBRUARY 28, 2011 A