Delhi High Court
Santosh Kumar vs Col. Satsangi’S Kiran Memorial ... on 12 October, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 12th October, 2018.
+ RSA 148/2018
SANTOSH KUMAR ..... Appellant
Through: Mr. Avniash Kumar Lakhanpal, Adv.
Versus
COL. SATSANGI'S KIRAN MEMORIAL AIPECCS
EDUCATIONAL COMPLEX & ANR ..... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
CM Nos.42968/2018 & 42970/2018 (both for exemption)
1. Allowed, subject to just exceptions.
2. The applications are disposed of.
RSA 148/2018 & CM No.42969/2018 (for stay)
3. This Regular Second Appeal (RSA) under Section 100 of the Code of
Civil Procedure Code, 1908 (CPC) impugns the judgment and decree [dated
16th August, 2018 in RCA SCJ No.8/17 (CNR No.DLST03-000251-2017)
of the Court of Senior Civil Judge (South)] of dismissal of First Appeal
under Section 96 of the CPC filed by the appellant / defendant against the
judgment and decree [dated 7th December, 2016 in CS No.83061/2016 of
the Court of Civil Judge-02 (South)] allowing on admissions the suit of the
respondents / plaintiffs for mandatory injunction directing and commanding
the appellant / defendant to handover vacant and peaceful possession of one
room on the ground floor of the property of the respondents / plaintiffs
being a public school in the name of Col. Satsangi's Kiran Memorial Public
School established by the respondent/plaintiff no.2 All India Personality
Enhancement and Cultural Centre for Scholars Society and the hostel
accommodation wherein was being managed by the respondent/plaintiff
no.1 Col. Satsangi's Kiran Memorial AIPECCS Educational Complex.
4. The counsel for the appellant / defendant has been heard and the
copies of the trial court record annexed to the memorandum of appeal
perused.
5. The respondents / plaintiffs instituted the suit, from which this
Second Appeal arises, pleading that (i) the respondent no.2 / plaintiff is a
Society registered under the Societies Registration Act, 1860 and has
established Col. Satsangi's Kiran Memorial Public School; (ii) the said
school has a complex in the name of Col. Satsangi's Kiran Memorial
AIPECCS Educational Complex which inter alia runs and manages the
hostel for the students and also a residential complex for staff and teachers,
run by the respondent no.2 / plaintiff Society; (iii) the appellant / defendant
had been retained by the respondent no.1 / plaintiff for washing clothes of
the students on piece rate basis fixed and decided mutually between the
appellant / defendant and the respondent no.1 / plaintiff; (iv) the role of the
appellant / defendant was confined only to washing the clothes of the
students and to get payment from the respondent no.1 / plaintiff on piece
rate basis; (v) for the said purposes, the appellant / defendant was provided
two rooms for his residence-cum-washing in the property aforesaid of the
respondents / plaintiffs; (vi) the license granted by the respondents /
plaintiffs to the appellant / defendant in this regard was withdrawn in June,
2013 but the appellant / defendant did not leave the two rooms in which he
was allowed to carry out his duties; (vii) the respondents / plaintiffs could
take back possession of only one room on 11 th January, 2014 but the
appellant / defendant resisted vacating the other room; (viii) the appellant /
defendant instituted a suit for permanent injunction for restraining the
respondents / plaintiffs from taking possession of the other room but the
said suit was dismissed vide judgment dated 15 th July, 2015; (ix) in the
aforesaid judgment, it was held that the status of the appellant / defendant
was merely that of a licensee and which licence had been terminated on 11 th
July, 2013; (x) the application of the appellant / defendant for interim stay
in the aforesaid suit was also dismissed and the appeal preferred by the
appellant / defendant thereagainst also dismissed; and, (xi) the appellant /
defendant, in the pleadings in the suit filed by him, also admitted being a
licensee under the respondents / plaintiffs. Hence, the reliefs of mandatory
injunction, directing the appellant / defendant to hand over possession of
the remaining one room and for permanent injunction restraining the
appellant / defendant from parting with possession of the said room to any
other person were claimed in the suit.
6. The appellant / defendant contested the suit aforesaid by filing a
written statement inter alia pleading, that (a) the suit was bad for non-
joinder of Central Government who was the owner of the land underneath
the property of the school; (b) the appellant / defendant was a permanent
licensee, after getting construction made by investing his own funds and
with due permission of the respondents / plaintiffs; (c) the entire portion in
occupation of appellant/defendant was developed by the appellant /
defendant by investing his own funds, after due approval of School
Manager who inducted the appellant / defendant; and, (d) the permanent
license could not be revoked.
7. The Suit Court, vide order dated 7th December, 2016 allowed the suit
on admissions, under Order XII Rule 6 of the CPC, reasoning that (i) the
appellant / defendant had admitted that he was permitted by the respondents
/ plaintiffs to stay in the premises for a particular job work; (ii) the appellant
/ defendant had also admitted that the said work had been withdrawn by the
respondents / plaintiffs (iii) service of notice of vacation by the respondents
/ plaintiffs on the appellant / defendant also stood admitted; (iv) the
appellant / defendant had also admitted that the suit earlier filed by him for
permanent injunction was dismissed on 15th July, 2015; (v) in Maria
Margarida Sequeira Fernandes Vs. Erasmo Jack De Sequeira (2012) 5
SCC 370, it had been held that no one acquires title to the property if he or
she was allowed to stay in the premises gratuitously; even by long
possession of years or decades or even if the person has spent some money
in the property for repair etc., such person would not acquire any right or
interest in the property and will remain licensee only; (vi) hence, the plea of
the appellant / defendant that he had spent his own funds and developed the
property was without any substance in the context of present facts and
circumstances of the case; (vii) Order XII Rule 6 of the CPC had been
enacted to avoid trial if there was any admission or admission could be
inferred from facts and circumstances of the case; (viii) reliance in this
regard was placed on Anar Devi Vs. Nathu Ram (1994) 4 SCC 250,
ASSOCHAM Vs. Y.N. Bhargava (2011) 185 DLT 296 and Harbhajan
Singh Vs. Mahinder Singh @ Micy (2014) 208 DLT 690. Thus, a direction
was issued to the appellant / defendant to vacate and the appellant /
defendant was restrained from parting with possession of the premises to
any third party.
8. The First Appeal preferred by the appellant / defendant was
dismissed after recording various contentions made by the counsel for the
appellant / defendant and reasoning that (a) a perusal of the plaint and the
written statement clearly revealed that appellant / defendant had admitted
all the basic facts of the case; (b) the appellant / defendant had admitted that
he was kept in the premises as a licensee as he was given contract for
washing the clothes of students of the hostel; (c) the appellant / defendant
had also admitted that he had filed a previous suit for permanent injunction
and which suit was dismissed; (d) the appellant / defendant had also
admitted that his contract of washing was revoked / withdrawn and a letter
had been issued to him to vacate the premises; (e) the only contention of the
appellant / defendant in the appeal was that he had raised constructions of
permanent nature and due to which he had acquired status of a permanent
licensee as per Section 60(b) of the Indian Easements Act, 1882 and could
not be evicted; however, the appellant / defendant had not filed any
documentary proof nor any photographs to show what type of construction
had been raised by him and what expenses had been incurred by him
therefor; (f) the appellant / defendant had not even mentioned the details of
construction carried out or any specific date, month or year when the
construction was carried out; (g) the appellant / defendant had also failed to
show that he had any permission to carry out any such construction; (h) the
pleas of the appellant / defendant did not fall under Section 60(b) of the
Indian Easements Act; and, (i) the trial court was therefore right in allowing
the suit under Order XII Rule 6 of the CPC.
9. The counsel for the appellant / defendant argues that, (i) the case did
not fall under Order XII Rule 6 of the CPC; (ii) the Suit Court and the First
Appellate Court have given different reasons for rejecting the plea of the
appellant / defendant of the licence of the appellant / defendant being
permanent; (iii) neither of the Courts have dealt with the plea of the
appellant / defendant that the respondents / plaintiffs had no title to the land
underneath the property of the school and a portion whereof is in
occupation of the appellant / defendant; and, (iv) even if the written
statement of the appellant / defendant did not disclose any defence, it was
always open to the appellant / defendant, once issues were framed and suit
was put to trial, to amend his written statement.
10. I will take up the last of the aforesaid arguments first.
11. To say the least, the same is preposterous. A suit, if on the pleadings
therein does not raise any triable issues, cannot be put to trial in expectation
that the written statement will be amended and amendment will be allowed
and the amended written statement will raise triable issues.
12. The court cannot frame an issue and put a suit to trial when the
parties, on perusal of the pleadings, are not found to be on issue at any
question of law or fact. Attention of the counsel for the appellant /
defendant in this regard is drawn to Order XV of the CPC which has been
referred to in several of the judgments under Order XII Rule 6 of the CPC.
In Ashoka Estate Pvt. Ltd. Vs. Dewan Chand Builders Pvt. Ltd. 159
(2009) DLT 233, reiterated in Vireet Investments Pvt. Ltd. Vs. Vikramjit
Singh Puri 2017 SCC OnLine Del 11183 and again reiterated in
Bhupinder Jit Singh Vs. Sonu Kumar 2017 SCC OnLine Del 11061, it
was held (i) that the plaintiff, if otherwise found entitled to a decree on
admission, cannot be deprived thereof by astute drafting of the written
statement and/or by taking pleas therein which have no legs to stand upon;
(ii) the Court is to read the pleadings of the parties meaningfully; (iii) issues
are to be framed on 'material' and not all propositions of law and fact
which may be contained in the pleadings and which are not material i.e. on
the outcome whereof the outcome of the suit does not depend; (iv) a plea,
which on the face of it is found by the Court to be untenable, does not
require the framing of any issue. In Adarsh Kumar Puniyani Vs. Lajwanti
Piplani 2015 SCC OnLine Del 14022 it was held that material propositions
of law or fact would mean such issues which are relevant and necessarily
arise for deciding the controversy involved; if a plea is not valid and
untenable in law or is not relevant or necessary for deciding the controversy
involved, the Court would not be bound and justified in framing issue on
such unnecessary or baseless pleas, thereby causing unnecessary and
avoidable inconvenience to the parties and waste of valuable Court time;
(v) the Court is not obliged to, on finding pleas to have been raised in the
written statement, mechanically frame issues thereon. If issues were to be
framed in such manner, the same would be in disregard of the word
'material' in Order XV Rule 1 of the CPC; (vi) the enquiry thus to be made
at the time of framing of issues is, whether the pleas raised in the written
statement, purportedly in defence to the claim in the plaint, have any
material bearing to the outcome of the suit and if it is found that irrespective
of the findings thereon, the plaintiff would be entitled to the relief, the
parties are not to be put to trial in the suit. Similarly, in Zulfiquar Ali
Khan Vs. Straw Products Ltd. 87 (2000) DLT 76, it was observed that it is
a notorious fact that to drag the case, a litigant often takes all sorts of false
or legally untenable pleas and it was held that legal process should not be
allowed to be misused by such persons and only such defence as give rise to
clear and bona fide dispute or triable issues should be put to trial and not
illusory or unnecessary or mala fide based on false or untenable pleas to
delay the suit. It was yet further held that the Court is not bound to frame
an issue on unnecessary or baseless pleas, thereby causing unnecessary and
avoidable inconvenience to the parties and waste of valuable Court time.
Reference in this regard may also be made to Kawal Sachdeva Vs. Madhu
Bala Rani 2013 SCC OnLine Del 1479, P.S. Jain Co. Ltd. Vs. Atma Ram
Properties (P) Ltd. (2013) 205 DLT 302, Vansons Footwear (P) Ltd. Vs.
USP Fashion Weaves (P) Ltd. 2018 SCC OnLine Del 6998 and A.N. Kaul
Vs. Neerja Kaul 2018 SCC OnLine Del 9597.
13. However, the counsel for the appellant / defendant is not aware of
Order XV Rule 1 of the CPC which is as under:
"1. Parties not at issue-- Where at the first hearing of a suit it appears that the
parties are not at issue on any question of law or of fact, the Court may at once
pronounce judgment."
14. Though the present case also falls under Order XII Rule 6 of the CPC
but even if not, it clearly falls under Order XV Rule 1 of the CPC and no
error has been committed by the Suit Court and the First Appellate Court in
allowing the suit of the respondents / plaintiffs without any trial.
15. As far as the argument of the counsel for the appellant / defendant of
there being no admission in the written statement of the appellant /
defendant is concerned, in Vijaya Myne Vs. Satya Bhushan Kaura 2007
SCC OnLine Del 828 (DB), Rajesh & Co. Vs. Ravissant Pvt. Ltd. 2012
SCC OnLine Del 2197 (DB), ING Vysya Bank Ltd. Vs. Vikram Hingorani
2014 SCC OnLine Del 478 (DB) (SLP(C) Nos.8694-8696/2014 preferred
whereagainst was dismissed on 25th April, 2018) and A.N. Kaul supra, it
has been held that rarely is there any admission in express terms but the
Court has to read the written statement meaningfully and then see whether
it raises any defence; the court is not required to mindlessly and
mechanically frame issues in all the suits and relegate the parties to trial
when a meaningful reading of the written statement does not disclose any
defence and the suit is bound to be decreed.
16. As far as the contention of the counsel for the appellant / defendant,
of the Suit Court as well as the First Appellate Court having given different
reasoning with respect to the plea of permanent licensee is concerned, I do
not find the reasoning to be different. It is just that the reasoning given by
the First Appellate Court is more elaborate than the reasoning given by the
Suit Court. However, both the Courts are right in what they have held. In
fact, mention may also be made of Gesture Hotels And Food Pvt. Ltd. Vs.
The New Delhi Municipal Council AIR 2014 Del 143 and Ambika Soni
Vs. Union of India (2015) 222 DLT 195 where, on a reading of Section 60
along with Section 64 of the Indian Easements Act, it has been held that the
only remedy of a licensee who has been wrongly removed is to recover
compensation from the licensor and a licensee, after termination of the
license, can neither retain accommodation nor seek to be put back into
possession thereof. Thus, the very premise of the defence of the appellant /
defendant on this ground has no basis in law.
17. I have even otherwise enquired from the counsel for the appellant /
defendant as to what and how much construction was raised by the
appellant / defendant.
18. The counsel for the appellant / defendant states that two rooms were
constructed by the appellant / defendant.
19. On enquiry, it is clarified that the said two rooms were the same two
rooms of which the appellant / defendant was in occupation and possession
of one of which has already been taken.
20. I have enquired from the counsel for the appellant / defendant,
whether the appellant / defendant had taken any permission for construction
from the Municipal Corporation.
21. The answer is in the negative.
22. Section 60(b) of the Indian Easements Act, which makes a licence
irrevocable where the licensee, acting upon the licence, has executed a work
of a permanent character and incurred expenses in the execution, cannot be
read as permitting a licensee to execute works, though of a permanent
character, but otherwise illegal i.e. in violation of laws. No law can be
interpreted as permitting an illegality and / or violation of another law.
When Section 60(b) of the Indian Easements Act makes the license of a
licensee who has executed works of a permanent character, irrevocable, it
has to be necessarily understood that the works of permanent character have
been carried out in accordance with law i.e. after obtaining all the requisite
permissions for the works which require permission. Works, even if of
permanent character, which have been carried out without such
permissions, are mere illegalities and have to be ignored and no benefit
thereof can be given under any law to any person. The plea of the appellant
/ defendant of permanent license is doomed for this reason also.
23. That brings me to the last argument of the counsel for the appellant /
defendant, of the plea in the written statement of the appellant / defendant
of the land underneath the property of the school of the respondents /
plaintiffs belonging to the government.
24. The appellant / defendant has not controverted that he was inducted
into the property of the respondents / plaintiffs school by the respondents /
plaintiffs. Once the appellant / defendant came into the premises with the
permission of the respondents / plaintiffs, the appellant / defendant is barred
by Section 116 of Evidence Act, 1872 from challenging the right or title of
the respondents / plaintiffs. Reliance in this regard can be placed on S.K.
Sarma Vs. Mahesh Kumar Verma (2002) 7 SCC 505.
25. This Second Appeal is thoroughly misconceived and an abuse of the
process of law. It is found that the appellant / defendant, by so abusing the
process of law, has already overstayed in the premises of the school for the
last over five years. The counsel for the appellant / defendant, on enquiry,
states that no mesne profits have been decreed against the appellant /
defendant and no claim therefor is pending. It is also found that though
during the pendency of the First Appeal there was a stay of execution, but
while vacating the said stay at the time of dismissal of First Appeal, equities
were not balanced and the appellant / defendant was not directed to pay any
compensation to the respondents / plaintiffs for the period for which he
enjoyed the stay. Considering all the said facts, while dismissing this
appeal, the appellant / defendant is also burdened with costs of Rs.1 lac. If
the said costs are not paid, the respondents / plaintiffs shall be entitled to
recover the same by execution as a decree.
Decree sheet be drawn up.
RAJIV SAHAI ENDLAW, J.
OCTOBER 12, 2018
'gsr'
