R.S. Shekhawat vs Delhi Race Club (1940) Ltd.
2017 Latest Caselaw 5595 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            RFA No.592/2017

%                                                        11th October, 2017

R.S. SHEKHAWAT                                              ..... Appellant
                             Through:        Mr. Amit Verma, Advocate.
                             versus

DELHI RACE CLUB (1940) LTD.                                     ..... Respondent

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not? YES

VALMIKI J. MEHTA, J (ORAL)

C.M. Nos. 36627/2017 (for stay) & 36646/2017 (for recalling of order dated 7.7.2017)

1. By this application (C.M. No.36646/2017), the appellant

seeks recall of the order passed by this Court dated 7.7.2017 and

which order reads as under:-

"After arguments and at the stage of dictation of the judgment, learned counsel for the appellant states that instead of passing a judgment the appeal be disposed of as not pressed. Ordered accordingly."

2. A reading of the order dated 7.7.2017 shows that

complete arguments were heard and judgment was to be dictated in

open Court when counsel for the appellant thought it fit that instead of

inviting a judgment the appeal be disposed of as not pressed because

the judgment would have been strictly against the appellant.

3. Today, a new counsel appears for the appellant along

with the appellant in person and states that the order dated 7.7.2017 be

recalled because the appellant had not given instructions to his

Advocate not to press the appeal. I may note that it has almost become

a very contagious problem that dishonest litigants are not ready to

abide by what their duly authorized Advocates do. It is not disputed

and could not be disputed that the appeal was argued on 7.7.2017 by

the Advocates of the appellant who had filed the appeal and who were

authorized to argue the matter as also decide the course of action

required with respect to the appeal. It is not permissible for the

litigants to stand up and question the stand of the earlier Advocates on

the ground pleading that the litigant had not given instructions because

an Advocate has always the necessary instructions by his Vakalatnama

to take steps in accordance with law with respect to the appeal unless

of course a fraud is played by the Advocate upon his client. There is

no issue of fraud upon the appellant in the facts of the present case and

as will be seen from the facts narrated hereinafter.

4. This Regular First Appeal was filed by the defendant in

the suit challenging the impugned judgment dated 16.3.2017 of the

trial court whereby the trial court decreed the suit of the

respondent/plaintiff for possession of the suit property. Suit property

was Stable Area Lane No.B-1/B-2, Delhi Race Club Road, New Delhi

as shown in the site plan Ex.PW1/3.

5. The facts of the case are that the appellant/defendant was

employed by the respondent/plaintiff as a trainer for horses and

therefore was given the suit property being a two room set. Besides

use of the suit property for performing his duty of training horses, the

appellant/defendant with his family resides in the suit property.

Disputes and differences arose between the appellant/defendant and

the respondent/plaintiff because there was an incident that the

appellant/defendant picked up a fight with respect to horses with one

Smt. Anita Chauhan. The licence of the appellant/defendant was

therefore suspended on 6.4.2013 vide Ex.PW1/4 in the Session 2013-

14 and which was not recommended to be renewed. Accordingly, the

respondent/plaintiff claimed that the appellant/defendant and his

family could no longer stay in the suit property and had to vacate the

same. The respondent/plaintiff was the lessee of the lease hold

property from NDMC, and the respondent/plaintiff was running the

club on the land, and part of which land/property is the suit property.

Respondent/plaintiff also claimed damages of Rs.20,000/- per month

for illegal occupation of the suit property by the appellant/defendant

from January, 2015. After issuing the legal notice Ex.PW1/5 the

subject suit was filed.

6. The appellant/defendant contested the suit and firstly

pleaded for stay of the suit on account of the Suit No.229/2013 filed

by him against the respondent/plaintiff being pending. It was pleaded

by the appellant/defendant that he was working as professional horse

trainer under a licence issued to him by the respondent/plaintiff for

last several years. He pleaded that one Smt. Anita Chauhan wrongly

picked up a fight on false pretext and that the respondent/plaintiff

wrongly cancelled the training agreement. It was pleaded that

appellant/defendant was occupying the stable area for 27 years and

hence was entitled to possession thereof. He denied that his licence

was cancelled or suspended by the club for 2013-14 Session vide

Ex.PW1/4.

7. After pleadings were complete, the trial court framed the

following issues:-

"1. Whether the suit is not valued properly for the purpose of Court Fees and Jurisdiction? OPD.

2. Whether plaintiff is entitled to decree of possession of suit property i.e. B-1/B-2, Stable Area, Delhi Race Course Club Road as per site plan? OPD.

3. Whether plaintiff is entitled to damages of Rs.20,000/- per month with effect from January 2015 along with interest? OPP.

4. Whether plaintiff is entitled to damages of Rs.2.80 lacs with interest for the pre suit period? OPP.

5. Whether plaintiff is entitled to decree of permanent injunction restraining the defendant from creating any third party interest in the suit property? OPP

6. Relief."

8. The only and the main issue was with respect to the

entitlement of the possession of the respondent/plaintiff of the suit

property and this issue being issue no.2 was decided in favour of the

respondent/plaintiff in terms of paras 24 to 35 of the impugned

judgment and which paras read as under:-

"24. As far as relief of possession is concerned, as decided in the above issue in so far as it is not the case of either of the parties that the actual physical possession of the property was handed over to the plaintiff by the defendant or his father under some lease deed or any other similar document, this suit is being considered as a suit for mandatory injunction for ousting a licencee. It is pleaded case of the plaintiff is that Delhi Race Course Club is a lease hold property taken by the plaintiff Club from L&DO as per lease deed dated 29.04.1959 Ex. DW2/1. There is nothing available on record to controvert that plaintiff Club is in continuous and uninterrupted possession of the entire Race Club of which suit property is a part ever since 1959 till date. It is case of the plaintiff that as a Race Club issues yearly licences to Horse trainers and if accepted they allow access to the lease hold property belonging to the plaintiff. It is their case that defendant Shri R S Shekhawat is one of such trainers who was issued yearly licence but post

cancellation of his licence on 06.04.2013, defendant has no right to remain over the plaintiff's property.

25. On the contrary it is argued on behalf of the defendant that he is in occupation of the suit property, as shown in site plan, for last around 27 years and that the same was allotted by the plaintiff to his father. The factum of property being allotted to his father has been stated by him in his cross- examination done by Ld. Counsel for plaintiff on 22.08.2016. However, he accepted that he does not have any document in support of his plea. Evidently, neither any documentary or oral evidence is led in support of his claim. A plea is taken by the defendant that he is neither a lessee nor a licensee of the plaintiff and is occupying property under his own rights. During the entire trial defendant has failed to explain that in case it was not permissive usage of the property, under what circumstances he gained access of the suit property. A plea is raised that a separate suit has been filed by him against a plaintiff Club challenging the cancellation of his trainer licence and that till such time the suit is decided, no relief of eviction can be sought by the plaintiff.

26. In my considered view, this plea is of no avail to the defendant in so far as issuance of trainer licence does not ipso fact means that every trainer holding a licence can stay in plaintiff's property with his family permanently. Defendant has failed to place on record the copy of the trainer's licence or any other document to show as to what are available to him under such a licencee.

27. Another plea raised is that the suit property is not a part of property in occupation of the Delhi Race Course Club and as such plaintiff has no right, title or claim over the same. It is found that this plea has been devised and presented in the Court only during the course of final arguments in so far as nowhere in the written statement this plea has been specifically taken. It is belief of the defendant that the suit property is outside the peripheral wall of Delhi Race Course Club, it was incumbent upon him to first plead it and then also show same through the site plan duly acknowledged by the NDMC or the L&DO. Even otherwise this plea is self contradictory in so far as detailed supra, defendant accepted that the suit property was allotted by the plaintiff to his father. It is available on record that the two room set which is occupied by the defendant is right next to the stable where horses are kept. It appears that the defendant in the course of final arguments, took a stand that he is squatting over the property held by the plaintiff.

28. In the absence of any document to show any independent right over the suit property, the status of the defendant is reduced to that of a permissive usage under a licence under Easement Act. Section of 52 of the Indian Easements Act, 1882 :-

52. "Licence" defined- where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a licence.

29. Plain reading of Section 60 and 62 of the Act provides that all licences subject to certain exceptions are revocable in nature. Section 60 of Indian Easements Act, 1882-

60. Licence when revocable- A licence may be revoked by the grantor, unless-

(a) it is coupled with a transfer of property and such transfer is in force:

(b) the licensee, acting upon the licence, has executed a work of a permanent character and incurred expenses in the execution. Section 62 of Indian Easements Act, 1882-

62. Licence when deemed revoked--

(a) when, from a cause preceding the grant of it, the grantor ceases to have any interest in the property affected by the licence;

(b) when the licensee releases it, expressly or impliedly, to the grantor or his representative;

(c) where it has been granted for a limited period, or acquired on condition that it shall become void on the performance or non- performance of a specified act, and the period expires, or the condition is fulfilled;

(d) where the property affected by the licence is destroyed or by superior force so permanently altered that the licensee can no longer exercise his right;

(e) where the licensee becomes entitled to the absolute ownership of the property affected by the licence;

(f) where the licence is granted for a specified purpose and the purpose is attained or abandoned, or becomes impracticable;

(g) where the licence is granted to the licensee as holding a particular office, employment or character, and such office, employment or character ceases to exist;

(h) where the licence totally ceases to be used as such for an unbroken period of twenty years, and such cessation is not in pursuance of a contract between the grantor and the licensee;

(i) in the case of an accessory licence, when the interest or right to which it is accessory ceases to exist.

30. Bare perusal of the above statutory provision shows that a permissive usage under a licence could be expressed or implied. Bare perusal of legal notice dated 02.02.2016 Ex.PW1/7 to 10 it is found that there is a specific reference whereby defendant is intimated that his trainer licence stands terminated. He is also informed that while working as a trainer he was residing at B1/B2. The notice further calls upon to vacate and hand over the possession of this area. As such this legal notice which was sent through registered post at the admitted address is deemed to be served on the defendant is sufficient to terminate the licence to the suit property. Even otherwise in terms of Section 116 of Evidence Act as reproduced supra, once it is found that the defendant was allowed to occupy the property as a trainer under a licence, he is stopped from claiming any other right or to challenge the title of the plaintiff.

31. In the same line a lot of stress was laid by ld. counsel for the defendant that lease deed of Delhi Race Course Club has expired on 31.12.1994. Court is apprised that during the course of arguments that the issue between the plaintiff and the L&DO is subjudice before the Hon'ble High Court in a different petition whereby Delhi Race Course Club has been granted an injunction order as a dispute is only qua arrears of lease charges. As detailed supra, the dispute qua alleged termination of lease between plaintiff and L&DO has nothing to do with the defendant as far as this suit is concerned by virtue of Section 116 of Evidence Act.

32. At this juncture, Ld. Counsel for the plaintiff has submitted that as per settled legal proposition failure of defendant to reply the legal notice containing important facts, amounts to admission of those facts. Plaintiff has relied upon Kalu Ram Vs. Sita Ram, 1980 RLR (Note) 44 wherein Hon'ble Court has observed-

"If plaintiff before filing suit makes serious assertions in a notice to defendant then defendant must not remain silent by ignoring to reply. If he does so then adverse inference may be raised against him."

In another case titled Abdul Gaffar Vs. DDA, 2001 RLR 249, Hon'ble Court has observed-

"If a legal notice is given by a party and the same is not replied and contents not denied then silence of the noticee raises presumption against him."

In another case titled Delhi Jal Board Vs. Kaveri Infrastructure Pvt. Ltd., 206 (2014) DLT 136, Hon'ble Court has observed-

"(iii) Principle of "Duty to Speak"- When seller write several letters but there was silence on part of buyer in replying to those letters, there was duty to speak and failure to speak will forfeit all rights of buyer".

33. It is highlighted that despite due service of legal notice defendant sat over the same and did not reply. Combined reading of the above statutory proceeding shows that failure of defendant to reply to the legal notice calls by drawing adverse inference against him.

34. In conclusion of the above discussion, I see no reason as to why the defendant hereby be allowed to continue to occupy the suit property described in site plan as B1/B2, stable area, Delhi Race Course Club, New Delhi.

35. This issue is accordingly answered in favour of the plaintiff and against the defendants." (underlining added)

9. It is seen from the aforesaid paras that trial court has

rightly held that in view of Section 116 of the Indian Evidence Act,

1872 that once the appellant/defendant was allowed to occupy the suit

property as a trainer by the respondent/plaintiff under a licence,

therefore the appellant/defendant is estopped from claiming any rights

in the property and challenging the title of the respondent/plaintiff.

Trial court has also rightly held that permissive possession of the

licencee is very much contemplated under the provisions of the

Easements Act, 1882 and once such licence is terminated then the

appellant/defendant would have no right, title and interest to stay in

the suit property. Trial court has also held in para 25 of the impugned

judgment that the appellant/defendant has no documentary proof that

he has right, title and interest in the suit property as there was an

allotment to his father. Trial court has accordingly disbelieved the plea

of the appellant/defendant that he is not a lessee or licencee and he is

occupying the suit property under his own rights.

10. In my opinion, the reasoning and discussion of the trial

court for decision of issue no.2 is faultless and there is no reason to

interfere with the impugned judgment. Counsel for the

appellant/defendant argued that the subject suit could not be decided

because the appellant/defendant had already filed the suit for

declaration and injunction which was pending, however, the

contention of the counsel for the appellant/defendant is completely

misconceived in view of the provision of Section 11 Explanation I

CPC and which provision states that if two suits are pending, then,

even if a later suit is decided prior to the earlier filed suit then the

decision in the later suit will operate as res judicata for the earlier

filed suit. I may note that the appellant/defendant had taken up a

defence that the present suit should be stayed on account of the earlier

suit filed by him but he did not succeed on this aspect and the subject

suit was decided in terms of the impugned judgment dated 16.3.2017.

11. It is high time that grossly dishonest litigants such as the

appellant must be put to notice that judicial time is valuable and that

dishonest litigants such as the appellant should not be allowed to take

a convenient stand of recalling an order by which after arguments the

appeal was disposed of as not pressed. There will be no sanctity to the

court proceedings and passing of orders whereby the appeal would

have been disposed of on an earlier date by passing a judgment, but no

judgment is passed because then counsel thought it fit to not invite a

judgment. If the malafide plea of the appellant is accepted then courts

will never be able to act upon and believe the statements of the

Advocates because litigants whom they represent can always

dishonestly and conveniently seek to contend that the Advocates had

no authority or right to withdraw a case, and which they otherwise

have as per their Vakalatnama. Accordingly, though there is no

reason for recalling of the order dated 7.7.2017, yet, I heard the

counsel for the appellant on merits and it is found that the appeal has

no substance whatsoever. The RFA No.592/2017 is also therefore

dismissed on merits besides holding that there is in fact no ground for

seeking recall of the order dated 7.7.2017. Since the appeal is

dismissed, all pending applications stand disposed of.

12. Considering that the application seeking recall of the

order dated 7.7.2017 is a gross abuse of process of law and gross

waste of precious judicial time, and that the appellant is illegally in

possession of the suit premises, the present applications and the appeal

are dismissed with costs of Rs. 2 lacs which will be paid by the

appellant to the website www.bharatkeveer.gov.in within a period of

six weeks from today. In case, costs are not deposited by the

appellant, then Registry will list the matter in the Court for appropriate

action to be taken against the appellant.

13. I may note that the subject matter of costs under Sections

35 and 35A CPC are with respect to costs of proceedings for costs

incurred by a litigating party. Sections 35 and 35A CPC do not deal

with imposition of penal costs which are caused on account of the

gross wastage of judicial time by dishonest litigants. In the opinion of

this Court, so far as such penal costs are concerned, since there is no

provision in the CPC as Sections 35 and 35A do not apply, courts can

therefore always exercise their inherent powers under Section 151

CPC for imposing penal costs and which are not subject matter of

Sections 35 and 35A CPC.

14. The appeal and the applications are dismissed with the

aforesaid observations.

OCTOBER 11, 2017                            VALMIKI J. MEHTA, J
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