Kailash Chand vs Defence Service Officers ...
2014 Latest Caselaw 1154 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RSA No. 174/2012 & CM No. 18546/2012

%                                                         4th March, 2014
KAILASH CHAND                                             ......Appellant
                          Through:       None.


                          VERSUS

DEFENCE SERVICE OFFICERS INSTITUTE           ...... Respondent
                  Through:  Mr. Pradeep K. Dubey, Adv.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1.    This regular second appeal is filed against the concurrent judgments

of the courts below; of the trial court dated 7.2.2012 and the first appellate

court dated 29.9.2012; which have dismissed the suit filed by the appellant-

plaintiff for injunction with respect to the premises being shop no.4, Defence

Services Officer's Institute (DSOI) Complex/DSOI Staff Quarters, Delhi.


2.    The case of the respondent-defendant was that the appellant was a

licensee and a licence deed was executed between the parties. The licence

deed has been admitted by the appellant and proved on record as Ex.PW-

1/D3. Once with open eyes appellant entered into a licence deed and which
RSA 174/2012                                                               Page 1 of 4
 allowed him to run the shop for a limited timing from 9.00 AM to 5.00 PM,

appellant is only a licencee and not a tenant.


3.    The trial court has exhaustively dealt with the issue and referred to the

Division Bench judgment of this Court in the case of D.T.T.D.C Vs.

D.R.Mehra 62 (1996) DLT 234 as also the Full Bench judgment of this

Court in the case of Chandu Lal Vs. Municipal Corporation of Delhi AIR

1978 Delhi 174 which holds that the equitable relief of injunction cannot be

granted to a licensee after his licence is terminated and in fact licensor is

entitled to use reasonable force to remove the person who uses the licenced

premises after termination of the licence. The relevant observation of the

trial court are contained in paras 28 and 29 and which read as under:-


               "28. The Hon'ble High Court of Delhi D.T.T.D.C Vs.
                    D.R.Mehra 62 (1996) DLT 234 has observed that:
                    "In our view injunction is an equitable relief and the
                    court must see whether a person who is a trespasser can
                    seek the helping hand of the court for protecting his
                    unlawful possession as against the owner. A person who
                    seeks equity must do equity. He must also come to court
                    with clean hands. When he does these things there will be
                    no occasion for him to seek an injunction inasmuch as
                    the trespass would have automatically stood vacated. If
                    he does not do these things, he cannot at the same time as
                    for the helping hand of the court to protect his illegal
                    possession.


RSA 174/2012                                                                Page 2 of 4
                      "It is further observed that "it is argued for the appellant
                     that this may be anamolous. It is said that the trespasser
                     had a "right" to an injunction against the true owner, and
                     this complementary to the duty of the owner not to evict
                     the trespasser outside the judicial process. In our view,
                     there is no anamaly. Each of these is based on a different
                     legal principle. If the plaintiff wants the defendant to act
                     in accordance with law he must frist abide by the law
                     himself and vacate the property as one would expect a
                     law abiding citizen to behave."
               29.   While the Hon'ble High Court of Delhi in the case titled
                     as Chandu Lal Vs. Municipal Corpn. Of Delhi AIR 1978
                     Delhi 174 has observed that:-
                     "The petitioner being licensee with liberty to occupy and
                     use the Kiosk for a period of 11 months in the first
                     instance could not be said to be in legal possession of the
                     premises, the legal possession all long remained with the
                     corporation. On revocation of the licensee they ceased to
                     enjoy the liberty to continue to occupy the Kiosk so as to
                     drive the corporation to evict them in due course of law,
                     nor can the petitioners possession be said to be "settled
                     possession: as was sough to be made out."
4.    I may note that the Full Bench in the case of Chandu Lal (supra) has

held that licensor can use reasonable force to evict licencee who refused to

vacate the licenced premises.


5.    A second appeal under Section 100 CPC is maintainable only if there

arises a substantial question of law. The aforesaid facts do not show that any

substantial question of law arises. There is no illegality or perversity in the

concurrent judgments of the courts below.


RSA 174/2012                                                                  Page 3 of 4
 6.    The appeal is without any merit and is accordingly dismissed, leaving

the parties to bear their own costs.




MARCH 04, 2014                             VALMIKI J. MEHTA, J.

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