Delhi High Court
Dinesh Kumar vs Bhagwan Mahavir Hospital & Ors. on 4 April, 2018
$~33
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 04.04.2018
+ RSA 53/2018 & CM Nos. 12678-82/2018
DINESH KUMAR ..... Appellant
Through: Mr. Aseem Kr. Katoch, Advocate.
Versus
BHAGWAN MAHAVIR HOSPITAL & ORS. ..... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J (Oral)
1. This second appeal impugns an order dated 05.03.2018 dismissing the
appellant's first appeal, being RCA No.75/17, against a decree in a Civil
Suit No. 61961/16 directing vacation of the suit property i.e. a kiosk located
in the premises of respondent No.1.
2. The facts of the case are that the appellant/plaintiff had filed a suit
seeking a mandatory injunction against his eviction from the kiosk being run
by him, with permission of respondent No.1. The suit was dismissed on
22.08.2017 and a cost of Rs.1,00,000/- was imposed by the learned Trial
Court which was of the opinion that the appellant/plaintiff had resorted to
"luxury litigation". His appeal against the same was dismissed, however,
the cost was reduced from Rs.1,00,000/- to Rs.25,000/-. This amount has
not been deposited.
RSA 53/2018 Page 1 of 4
3. It is the appellant's case that he has no other place to earn his
livelihood from and has been running the kiosk for the last about a decade
and that the impugned order has erred in not even looking into the facts of
the case, therefore, it ought to be set aside.
4. Respondent No. 3 was permitted by respondent No.1, to operate for a
period of one year, the Kiosk an HPMC juice stall located in the premises of
the hospital. This tenure was extended successively but it got over on
31.08.2015. The impugned order considered that there was no written
agreement between the appellant and either of the respondents to run the
kiosk. His interest to run the same came through respondent No.3, in terms
of the latter's agreement with respondent No.1; the tenure of the agreement
had already expired; initially it was only for one year and successive
extensions too had ended. The impugned order further noted that the
appellant had utterly failed to show on record as to what legal authority he
had to continue being in possession of the kiosk in question after the expiry
of the term of the agreement.
5. The learned counsel further states that eviction of the appellant from
the property could be done only in terms of the Public Premises Act
(Eviction of Unauthorized Occupants) Act, 1971 and that the notice dated
09.08.2016 cannot be taken into consideration because it has not been signed
by an authorized person i.e. it has not been issued by a designated officer
under the said Act. The Court would note that neither of these grounds were
raised in the appellant's contentions suit nor in his first appeal. In any case,
this contention cannot be a reason for interfering with the impugned order
because the appellant is a rank outsider and his right to continue in the suit
RSA 53/2018 Page 2 of 4
premises comes to an end when respondent No. 3's tenure to run the kiosk
ended.
6. The learned counsel refers to the agreement (at page 95 of the paper
book) seeking to draw a benefit therefrom for the appellant. However, as
noted in the impugned order, the appellant is not a party to the said
agreement. It is between the hospital/respondent No. 1 and the respondent
No.3. There being no privity of contract with the appellant, any reference to
the said contract would be of no avail to him.
7. It is the appellant's case that the impugned order has erred in not
considering the entire facts and the law, and the Appellate Court can always
look into the matter so as to do justice in the matter. In support of his
contentions, he relies upon the dicta of the Supreme Court in Vinod Kumar
vs. Gangadhar, (2015) 1 SCC 391, wherein it held that:-
"19. Being the first appellate court, it was the duty of
the High Court to have decided the first appeal keeping in
view the scope and powers conferred on it under Section 96
read with Order 41 Rule 31 CPC mentioned above. It was
unfortunately not done, thereby, resulting in causing
prejudice to the appellant whose valuable right to prosecute
in the first appeal on facts and law was adversely affected
which, in turn, deprived him of a hearing in the appeal in
accordance with law. It is for this reason, we are unable to
uphold the impugned judgment of the High Court."
8. The said principle of law is well established, but the appellants'
reliance on it is misplaced. So is the reference to the Public Premises Act,
2007 as the suit property was not given out to him by a statutory authority
RSA 53/2018 Page 3 of 4
under the Act. The Court is of the view that the occasion to look into the
facts will arise only when the appellant could prima facie show that he had
any right in the suit property. The appellant is not a party to the contract
between respondent No.1 and respondent No. 3; rights that flow to the
appellant were only through respondent No. 3; since the tenure of the said
contract has come to an end, the appellant would have no cause of action
against respondent no.1.
9. In view of the above, the Court finds no reason to interfere with the
impugned order. There is no merit in the appeal. It is dismissed.
NAJMI WAZIRI, J.
APRIL 04, 2018
sb
