Flt. Ltd. Gurcharan Singh Sohal ... vs Mrs. Jasbir Kaur Sohal & Ors.
2011 Latest Caselaw 3025 Del

*          HIGH COURT OF DELHI : NEW DELHI

+                      CS (OS) No.857/2004

%                      Judgment decided on :         03.06.2011

FLT. LTD. GURCHARAN SINGH SOHAL (RETD.)
                                                   ......Plaintiff
                       Through: Ms Maninder Acharya, Adv. with Mr Om
                                Prakash, Adv.

                       Versus

MRS. JASBIR KAUR SOHAL & ORS.                  .....Defendants
                Through: Ms Prachi Vashishta, Adv.

Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                        No

2. To be referred to Reporter or not?                     No

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

MANMOHAN SINGH, J.

1. Issues in the matter were framed on 20.05.2011. As per the

said order, issue No.1 is to be treated as preliminary issue which read as

under:--

"Whether the suit for mandatory injunction is maintainable in view of the fact that the Plaintiff is not in the physical possession of suit property? OPP"

2. The court has heard the matter on the issue of maintainability

of the suit for mandatory injunction in the absence of relief of possession

of the suit property bearing Shop bearing No.22 (Ground Floor), Archana

Shopping Complex, Greater Kailash, New Delhi-1100 48 and the case

has been reserved for orders.

3. The plaintiff has filed the present suit, inter alia, for perpetual

and mandatory injunction against the defendants, regarding a

shop/showroom bearing No.22, Archana Shopping Complex, Greater

Kailash-I, New Delhi (hereafter referred to as "the Suit Property").

4. The plaintiff and defendant No.1 are husband and wife. It is

the case of the parties that the suit property is owned by the plaintiff

which is in his name and is not disputed by the defendants. At present he

is not in physical possession of the same.

5. From perusal of the plaint and particularly paragraph No.19 as

alleged by the plaintiff that defendant No.1 being wife was allowed to

attend his business of M/s. Thousand Plus. Defendant No.1 had in her

possession one set of keys of the suit property. On 05.07.2004 she

opened the showroom and forcibly restrained the plaintiff from entering

into his own shop where the plaintiff was running his sole proprietary

concern since 1992. The wife of the plaintiff, defendant No.1 taking

advantage of plaintiff's ill health has been visiting the shop and is

allowed to manage the business of plaintiff from time to time. The

defendant No.1 is thus permissive user/licensee of the suit shop.

6. The plaintiff's title qua suit property is not in dispute except

the defence has been set up by the defendant to this effect that father of

defendant No.1 had financed the plaintiff to purchase the suit shop.

7. As per the case of the plaintiff, the said shop was acquired by

the plaintiff and his mother from its erstwhile owner vide an agreement

dated 27.05.1980 and plaintiff was put in actual physical possession of

the suit shop on 10.02.1979. Plaintiff has obtained telephone connection

and electricity connection in the suit shop in the name of his business.

The Sales Tax Registration was obtained and bank account was opened

by the Plaintiff. Plaintiff has been declaring the suit shop as his personal

asset in his income tax returns. Trade licence from MCD was also

obtained by the Plaintiff in his own name and as sole proprietor.

Plaintiff has been regularly discharging his ownership rights by paying

the property tax to the MCD qua the suit shop. Plaintiff bore the cost of

installing the fire fighting equipments in the suit property. The Plaintiff is

bearing the monthly maintenance charges qua the suit shop. Plaintiff's

mother also relinquished her half share in the suit shop in favour of the

Plaintiff by Relinquishment Deed dated 07.08.2003. Manager and staff

were employed by the plaintiff and salaries of the staff is paid by the

plaintiff from the business income of his proprietary concern. In the Will

dated 22.07.2003 the defendant has not even claimed any right qua the

suit shop which is mentioned in para 16 of the Plaint.

8. The plaintiff claims that while he is not in possession of the

suit property, the plaintiff had allowed the defendant No.1 to use the suit

property as a licensee, he is, therefore, not obliged to seek possession of

the suit property and a mere suit for injunction as filed by the plaintiff, is

maintainable.

9. It is also urged that there is no requirement of a written

agreement/license deed to show that the suit property was given to the

defendant No.1 by the plaintiff and a mere oral permission to use the suit

property is sufficient.

10. The learned counsel for the plaintiff in support of his

submissions has relied on the following judgments:

(a) Delhi Gate Service Private Ltd. Vs. Caltex (India) Ltd. AIR 1962 P & H 370

(b) Sant Lal Jain Vs. Avtar Singh, AIR 1985 SC 857,

(c) E.P. Jeorge Vs. Thomas John, AIR 1984 KER 224,

(d) Smt. Shanti Devi & Anr. Vs. Mela Ram 1971 RLR 65 (1) Del.

(e) Merchant Vs. Charters (1977) 3 ALL ER 918 (922).

It has been held in the judgments cited at bar that suit for

mandatory injunction, the prayer No.4 as prayed in the instant suit, is

maintainable, if plaintiff approaches the Court within the reasonable

period from revocation of licence.

11. Learned cousel for the defendant No.1 argues that there is not

even a whisper of an averment in the plaint that the Suit Property was

given by the plaintiff to the defendant No.1 as a licensee. Secondly, there

is no averment in the entire plaint to even suggest that the plaintiff had

permitted/allowed the defendant No.1 to use the Suit Property.

12. It is also argued by the learned counsel that the defendant

No.1 has been in possession of the Suit Property since 1992. The

plaintiff in fact delivered to the defendant No.1 the Suit Property for life

as part of his legal and moral obligation to maintain the defendant No.1

and their children.

13. As regards the title of the Suit Property, it is argued that the

plaintiff is not in the ownership of the suit property and in the written

statement it is averred that it was the defendant No.1's father, who had

financed the suit property and the remaining money came about by selling

of the stridhan of the defendant No.1.

14. Learned counsel for defendants argued that the defendant

No.1 is running the business of M/s. Thousand Plus, as also M/s. Jass

Kaur Inc. since 1992 and relevant documents have been filed by the

defendant No.1 who has been paying all the dues of the said property

since 1992, hence the contention of the plaintiff that the plaintiff has filed

the suit immediately without any delay is without any substance and

decisions referred by the plaintiff are not applicable under these

circumstances.

15. Lastly, it is argued by the counsel that a mere suit for

injunction does not lie, if the plaintiff seeking such relief is not in physical

possession. In support of her submission, the learned cousnel for the

defendant No.1 relies upon the following judgments:

(i) Virender Gopal v. MCD AIR 2007 DEL 183

(ii) Anathula Sudhakar v. P. Buchi Reddy (2008) 4 SCC 594

16. During the course of hearing it was enquired by the court as to

whether any cogent evidence is available on record to show that the

defendant No.1 is in possession since 1992. There was no positive reply

except the counsel just referred the pleadings. From the documents

placed by the plaintiff it appears prima facie that there is no cogent

evidence produced by the defendant No.1 in this regard.

17. Therefore, it has not been shown by defendants that plaintiff

came to court after a considerable delay. It has also been held in para 7

of Sant Lal Jain (supra), that the suit is, in effect, one for possession

though couched in the form of a suit for mandatory injunction as what

would be given to the plaintiff in case he succeeds is possession of the

property to which he may be found to be entitled. Therefore, the Apex

Court has held that person should not be denied relief merely because he

had couched the plaint in the form of a suit for mandatory injunction.

18. Prima facie, it appears that the plaintiff had approached the

court at the first available opportunity without any delay by filing of the

present suit. Licence may not necessrily be in writing due to the fact that

the plaintiff and the defendant No.1 are husband and wife.

19. That the judgments Virender Gopal (supra) and Anathula

Sudhakar (supra) referred by the defendants are clearly distinguishable

and the same are not applicable in the facts and circumstances of the

instant case. In the said judgment, plaintiff was sleeping for his rights and

title was also in dispute, but in the present case, the position is materially

different.

20. In the case of E.P. George (supra) and Smt. Shanti Devi

(supra), it has been specifically held that the suit for injunction is

maintainable in the absence of relief of possession in case the plaintiff

approaches the court within reasonable time. From the pleadings in the

plaint, it appears that the plaintiff has approached the court in a period of

even less than a month. Thus, I am of the considered opinion that the suit

filed by the plaintiff is prima facie maintainable and can be proceeded

with for trial. However, it is made clear that any finding arrived at by

means of this order shall not have any bearing when the matter is taken up

by the court at the time of final hearing of the suit after trial. The question

raised by the defendant would be considered and re-assessed after trial on

the basis of evidence provided by the parties. Thus, these findings are

tentative and are based upon the averments made in the plaint and

documents available on record.

List the matter before Joint Registrar on 13.9.2011 for

evidence.

MANMOHAN SINGH, J.

JUNE 03, 2011 dp