Delhi High Court
Akbar Hussain vs Jai Dev Vashisth on 3 February, 2015
Author: V.K.Shali
* HIGH COURT OF DELHI AT NEW DELHI
+ R.S.A. No.8/2015 & C.M. No.413/2015
Decided on : 3rd February, 2015
AKBAR HUSSAIN ...... Appellant
Through: Mr. Praveen Kumar Jain & Mr. Swetab
Kumar, Advocates.
Versus
JAI DEV VASHISTH ...... Respondent
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J. (ORAL)
1. This is a regular second appeal filed by the appellant against the
judgment dated 3.11.2014 passed by the learned Additional District
Judge.
2. The main contention of the learned counsel for the appellant is that
the judgment of the first appellant court suffers from perversity inasmuch
as the evidence has not been correctly appreciated to arrive at a correct
finding that the appellant is a tenant in respect of the suit property and
consequently, it has fallen into grave error by passing a decree for
permanent injunction as well as mandatory injunction against the present
appellant in the appeal.
3. Before dealing with the submission made by the learned counsel
for the appellant, it may be pertinent here to give the brief background of
the case.
4. The respondent herein filed a suit for mandatory and permanent
injunction against the present appellant. The case which was setup by the
respondent against the appellant was that he was a tenant in respect of
shop bearing No.WZ-345, C Block, Hari Nagar, New Delhi, and was
running an atta chakki. It was also stated by him that he had employed
the present appellant as a person helping him in running the said business.
The respondent had also permitted the family of the present appellant to
reside on the terrace over the shop as well as also permitted him to
supplement his income by running a juice crusher outside the shop. It is
alleged by the respondent that in the year 1998, the present appellant was
caught by the Delhi Vidyut Board stealing electricity directly from the
mains for the purpose of running his juice crusher machine because of
which he was asked to pay a hefty sum of Rs.16,000/- to the DVB for the
purpose of restoration of electricity to the shop. Because of these
reasons, the services of the present appellant were dispensed with by the
respondent and the amount of Rs.16,000/- was also deposited by the
respondent with the DVB. The termination of the services of the
appellant also resulted in calling upon him to vacate the shop; however,
as he did not oblige the respondent, consequently, this led to filing of a
suit for mandatory as well as permanent injunction seeking a direction to
the appellant that he must not only remove himself from the shop in
question but also clear the terrace above where his family was staying.
5. The suit was contested by the present appellant. He took the plea
that he is not the employee under the respondent. It was his case that he
was a tenant under the respondent directly and carrying on his business of
running a supplier of juice as well as weaving of cotton etc. during
winters. On the pleadings of the parties, following issues were framed:-
"1. Whether this court has no jurisdiction to try this
matter? OPD
2. Whether the plaintiff has not approached the court
with clean hands and has concealed material facts?
OPD
3. Whether the plaintiff is entitled for the relief of
permanent injunction as prayed for? OPP
4. Whether the plaintiff is entitled for the relief of
mandatory injunction as prayed for? OPP
5. Relief."
6. The parties adduced their evidence. Both the appellant/defendant
as well as the respondent/plaintiff examined themselves as the sole
witnesses as DW-1 and PW-1 respectively.
7. The learned trial court observed that the respondent had not been
able to prove that the appellant was his employee and consequently,
dismissed the suit partially although perpetual injunction was passed in
favour of the respondent restraining the appellant from dispensing the
respondent/plaintiff from the shop in question except in accordance with
due process of law.
8. Feeling aggrieved, the respondent/plaintiff preferred an appeal.
The said appeal was decided by the impugned order who decreed the suit
of the respondent/plaintiff in complete. The reasons given by the first
appellate court for decreeing the suit that the analysis of evidence arrived
at by the learned trial court with regard to the present appellant being an
employee of the respondent has not been established by any credible
evidence, was discarded. The first appellate court observed that the trial
court has been oblivious to the fact that the present appellant was
employed as a petty employee by a small time trader doing his business
of atta chakki from the shop in question, who would be hardly expected
to keep a record of the employee by maintaining a register, attendance or
otherwise, or issuing an appointment letter. This analysis of the learned
first appellate court seems to be quite reasonable, credible and correct that
a small time trader, who employees any helper in his shop for the purpose
of facilitating his business would hardly or would hardly be expected to
issue a formal letter of appointment as is done in the course of regular
employment. Therefore, there was absolutely correct observation passed
by the court that the relationship of master and servant was established
between the appellant and the respondent. The onus of proving that the
appellant was the tenant under the respondent obviously shifted on to him
for which he has failed miserably in showing through any credible
evidence that he was the tenant under the respondent.
9. On the contrary, the factum of cross-examination of the appellant
as DW-1 clearly supports and belies the case of the appellant himself that
he was doing the business from the shop in question of selling the juice.
This is evident from the fact that he had admitted that there was an atta
chakki and masala chakki still lying in the shop in question. He has
admitted that DVB had levied a penalty of Rs.16,000/- or so for
fraudulent abstraction of electricity. He is also admitting that the
aforesaid amount was paid by the respondent though he makes an
improvement in his cross-examination stating that out of the said amount
of Rs.16,000/-, a sum of Rs.5,000/- was contributed by him also. All
these admissions made by the appellant in his cross-examination clearly
establish that there is preponderance of evidence and probability that he
was an employee of the respondent in respect of the shop in question and,
therefore, the trial court had wrongly denied the relief of mandatory as
well as permanent injunction to the respondent.
10. I do not find that the judgment and the first appellate court suffers
from any perversity and consequently, no substantial question of law is
involved. Accordingly, the regular second appeal is dismissed.
V.K. SHALI, J.
FEBRUARY 03, 2015
'AA'
