Delhi High Court
Smt Prerna Arora vs Shri Vijay Pal Rana & Ors. on 3 May, 2011
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 03.05.2011
+ R.S.A. No.35/2006 & CM No. 1362/2006 (for stay)
SMT PRERNA ARORA . ...........Appellant
Through: Mr. Rajat Aneja, Advocate
Versus
SHRI VIJAY PAL RANA & ORS. ..........Respondents
Through: None.
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
06.08.2005 which had endorsed the finding of the trial Judge
dated 13.08.2002 whereby the suit filed by the plaintiff Prerna
Arora (seeking a mandatory injunction to the effect that the locks
illegally put upon the godowns and the office block at 46/5, Khera
Kalam Road, Khera, P.S. Samaypur Badli, Delhi by the defendant
be directed to be removed; further prayer was that a decree for
permanent injunction be granted in favour of the plaintiff
restraining the defendant from removing the goods of the
plaintiff) had been dismissed.
2 The case of the plaintiff is that she is the tenant of the
defendant @ Rs.34,000/- per month. Apart from four godowns, a
residential/office block had also been let out to the plaintiff which
comprised of two rooms on the ground floor and one room on the
first floor. As per averments in the plaint, three godowns had been
handed back to the defendant but the defendant had illegally put
his locks on remaining godown as also on the residential/office
block. The prayers made in the plaint are aforenoted. The plaintiff
had also filed an application under Order 6 Rule 17 of the Code of
Civil Procedure (hereinafter referred to as the „Code‟) seeking
amendment in her plaint as also the second application under
Order 1 Rule 10 of the Code.
3 The trial Judge had held that the suit is not maintainable in
the present form; the court was of the view that the plaintiff is
admittedly not in possession of the suit property; mandatory
injunction could not have been granted.
4 This view was endorsed in the first appeal.
5 This is a second appeal. It is yet at the stage of admission.
Today vide separate order, the appeal has been admitted and the
substantial question of law has been formulated. It reads as
under:-
"Whether the findings in the impugned judgment dated 06.08.2005 endorsing
finding of the trial Judge dated 13.08.2002 is a perverse finding and if so, its
effect?"
6 The arguments urged on behalf of the appellant have force.
The plaintiff has specifically averred in paras 8 & 9 of the plaint
that he had handed over only three godowns out of four godowns
to the defendant; the fourth godown had been illegally locked by
the defendant; office block had also been illegally taken over by
the defendant by snatching the keys of the field staff of the
plaintiff. There is no reason as to why the prayers made in the
plaint (original plaint) were not maintainable. The suit was
maintainable. The finding in the impugned judgment which had
endorsed the finding of the trial Judge is an illegality on this
count. This is a fit case for remand.
7 Matter is accordingly remanded back to the concerned
court. For the said purpose, the parties are directed to appear
before the District & Sessions Judge, Tis Hazari, Delhi on
11.05.2011 at 10:30 AM who shall assign the case to the
concerned Civil Judge who shall decide it on merits keeping in
view of the fact that the suit (original plaint) was well
maintainable. The applications of the plaintiff under Order 6 Rule
17 and under Order 1 Rule 10 of the Code shall also be considered
afresh.
8 Appeal is disposed of in the above terms.
INDERMEET KAUR, J.
MAY 03, 2011
a
