Smt Tara Devi & Anr vs Mcd
2012 Latest Caselaw 2027 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                               Date of Judgment: 23.03.2012

+     CM(M) 349/2012 & CM No.5295/2012


SMT TARA DEVI & ANR                                     ..... Petitioners
                  Through                Mr. B. S. Chaudhary, Adv.

                     versus


MCD                                                   ..... Respondent
                              Through    Mr. Sanjeev Sabharwal, Adv.


      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR


INDERMEET KAUR, J. (Oral)

1 The impugned order is dated 08.12.2011 which has endorsed the

finding of the trial Judge dated 08.02.2011 whereby the application filed

by the petitioners under Order XXXIX Rules 1 & 2 of the Code of Civil

Procedure (hereinafter referred to as the 'Code') had been dismissed.

2 Record shows that the present suit is a suit for permanent and

mandatory injunction which has been filed by the two plaintiffs against

the MCD seeking a prayer that the MCD be restrained from

dispossessing the petitioners or from removing their articles from the

two suit shops i.e. shops No.1074-75, Khoya Mandi, Bijli Road, Pili

Kothi, Delhi. Contention is that petitioner No. 1 along with her husband

was running the business of grocery and dry fruits from the aforenoted

shops; after the death of her husband, she continued this work with her

son; the respondent started creating hurdles; 'tehbazari' rights have been

granted to the petitioners but for one reason or the other, the possession

of the petitioners is disturbed by the MCD; they have made illegal

demands upon the petitioners. Cause of action last arose in favour of the

petitioners and against the respondent when on 11.12.2010 in the late

evening, the officials of the MCD entered into the shop of the plaintiffs

and sought to remove their articles; suit was accordingly filed.

3 Both the courts below have declined the prayer made by the

plaintiffs seeking interim protection on their application filed under

Order XXXIX Rules 1 & 2 of the Code. The impugned judgment had

noted that not a single document has been placed on record by the

petitioners to show their possession much less settled possession to

afford them an order in their favour.

4 Learned counsel for the petitioners has relied upon the logo of the

MCD (page 116 of the paper book); submission being that this logo has

been issued by the MCD itself qua the disputed shops and as such it

shows that the respondent /MCD has recognized their tehbazari rights.

This submission is disputed by the learned counsel for the respondent

who has appeared on an advance notice; his contention is that this logo

is for the shops allotted in favour of the allottees Sunita Devi and Vinay

Kumar; this logo does not pertain to the present petitioners; original

record of the department has also been brought before the Court to

substantiate this submission.

5 The second document relied upon by the learned counsel for the

petitioner is a document which is a receipt (page 110 of the paper book);

this shows that certain storage charges of `62/- and `762/- have been

taken by the MCD in the year 1987-1988; the contention of the

petitioners is that this document also establishes a fact that the

petitioners were in possession of the premises. Counter submission of

the department is that these are store charges which have been levied

upon the petitioners; the illegal display of the articles had been removed

by the MCD and stored in the warehouse of the MCD for which the

petitioners had to pay requisite fee which was in the sum of `762/- and

`62/- respectively before they could get their articles released. This

document also does not show the legal possession of the petitioners as

has been urged by them.

6 The last document relied upon by the learned counsel for the

petitioners is the challan issued by the MCD in the sum of `1,600/- in

favour of petitioner No. 1 and petitioner No. 2 (page 94 of the paper

book); this challan also shows that the petitioners have in fact been

challaned for unauthorized occupation of the aforenoted premises; they

could not on their own put up khokha for the sale of the articles as have

been noted in the plaint.

7 Both the two courts below have correctly appreciated that there is

no document on record to establish the prima-facie legal possession of

the plaintiffs; it was in this background that the impugned order had

noted that the petitioners are not entitled to any interim relief. Vehement

arguments have continued to be addressed by the learned counsel for the

petitioner in spite of the fact that even on a specific query put to the

learned counsel as to whether he has any other document apart from the

noted ones, he has no answer but to continue to repeat the same

arguments.

8 The impugned order in this background, rejecting an order under

Order XXXIX Rules 1 & 2 of the Code declining to grant the petitioners

any interim prayer over an alleged illegal right does not in any manner

suffers from an infirmity. This petition is an abuse of the process of the

Court. Petition is dismissed with costs of `10,000/-.

INDERMEET KAUR, J MARCH 23, 2012 A