Satya Narain vs Ashok Chopra & Ors
2017 Latest Caselaw 395 Del

$~20
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                       Date of Decision: January 23, 2017

+                               RSA 30/2017

      SATYA NARAIN                                           ..... Appellant
                          Through:      Mr.Sanjay Kumar, Advocate

                                     versus

      ASHOK CHOPRA & ORS                                     ..... Respondents
                  Through:              None


CORAM:
HON'BLE MS. JUSTICE PRATIBHA RANI

JUDGMENT (Oral)

CM No.2902/2017 Exemption allowed, subject to all just exceptions. Application stands disposed of.

CM No.2901/2017 (Delay in filing) & CM No.2970/2017 (Delay in re- filing)

1. For the reasons stated in the applications, delay of 55 days in filing and 15 days in re-filing the appeal is condoned.

2. The applications stand disposed of.

RSA 30/2017

1. This Regular Second appeal under Section 100 CPC is filed against the concurrent judgments of the Courts below i.e. of the trial Court dated 31st October, 2011 and of the First Appellate Court dated 22nd August, 2016 whereby the suit of the appellant/plaintiff seeking mandatory and permanent

injunction has been dismissed.

2. The appellant/plaintiff filed the civil suit pleading as under:-

(i) The respondents/defendants who are partner of M/s Welcome Motor, I.B.P. Petrol Pump, Opposite Modi Hospital, Mandir Marg, Saket, New Delhi let out a stall to him on 19 th March, 1984 at the entrance of the said petrol pump on monthly rent of `400/- and accepting advance of ` 10,000/- towards refundable security deposit. The rent was increased from time to time and last rent paid was `900/- per month.

(ii) In August, 1993 he was asked to pay `2,000/- per month as rent and on his inability to pay the increased rent he was threatened to be forcibly dispossed from the stall.

(iii) On 13th October, 1993 after locking the khoka he left for his house. But when he returned on 14th October, 1993 in the morning he found that his khoka had disappeared along with the goods and some stone (rodi) had been stacked. The prayer made in the suit was to restore the possession by directing the respondents/defendants by way of mandatory injunction to reconstruct the khoka and return the goods.

3. A decree of permanent injunction was also prayed thereby restraining the respondents/defendants from forcibly dispossessing him from the suit property.

4. The plea taken in the written statement by the respondents/defendants are as under:

(i) That the respondents/defendants are mere licensees under the IBP Company for running the petrol pump.

(ii) The appellant/plaintiff was permitted to do repair work of battery and dynamo at the khoka but he started preparing batteries which was hazardous in nature and in violation of the license granted by the IBP to the

respondents/defendants.

(iii) The appellant/plaintiff was time and again informed about this hazardous nature of work and asked to discontinue the use of khoka and remove his goods.

(iv) On 13th October, 1993 he received a sum of ` 15,000/- in cash towards settlement and removed his goods from the khoka but later on with a view to extract more money he had been filing various applications to continue the litigation.

5. Both the Courts below after considering the evidence adduced by the parties held as under:-

(i) The respondents/defendants being only licensees under the license agreement with IBP Company, could not have leased out any part of the said property to the appellant/plaintiff.

(ii) The appellant/plaintiff himself has expressed his inability to depose about the status of the respondents/defendants as owner of the petrol pump and their capacity to lease out the same to the appellant/plaintiff. The respondents/defendants had no power to let out the property to the appellant/plaintiff.

(iii) In case a mandate is issued to the respondents/defendants to reconstruct the khoka which had already been removed, it would tantamount to create an interest in favour of the respondents/defendants through whom the appellant/plaintiff is claiming right which cannot be done.

6. As respondents/defendants are licensee of IBP, no right to lease out is vested in the respondents/defendants in respect of the suit property. No relief can be claimed by the appellant/plaintiff against a licensee by claiming himself to be a lessee of a licensee.

7. Before this Court the counsel for the appellant has argued that the instant appeal raises substantial question of law which has been raised at page 2 of the appeal and reads as under:-

"Whether the property in dispute is leasehold property which was allotted by the DDA and said property or part of the property is transferable and respondents have every right to sub-let or transfer the said property in any manner."

8. The above substantial question of law being raised by the appellant/plaintiff is beyond pleadings. Even in the suit instituted before the learned Trial Court, it was no where the case of the appellant/plaintiff that the respondents/defendants are having lease hold rights in the land on which the petrol pump is being run or it was allotted by the DDA. So there is no question of examining the right of the respondents/defendants to sub-let the same to the appellant/plaintiff or any other person. For the first time this contention is being raised in this second appeal which is beyond pleadings hence cannot give rise to any substantial question of law in this appeal.

9. There is concurrent findings of the facts of the Courts below that respondents/defendants is only a licensee under IBP Company having no power to lease out the same to the appellant/plaintiff.

10. I do not find any illegality in the judgments of the Courts below much less a substantial question of law arising in this case. The appeal is, therefore, dismissed.

11. The parties to bear their own costs.

CM No.2900/2017 Dismissed as infructuous.

PRATIBHA RANI (JUDGE) JANUARY 23, 2017/'pg'