Punjab-Haryana High Court
Pappu @ Babbu Lal Thr Lrs & Ors vs Ved Parkash & Ors on 14 March, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:037295
RSA-6405-2017(O&M) 2024:PHHC:037295
RSA-6461-2017 (O&M) -1-
116 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Date of decision :14.03.2024
RSA-6405-2017(O&M)
Pappu alias Babu Lal through LRs
and others ...Appellants
Vs.
Ved Parkash and others ...Respondents
RSA-6461-2017 (O&M)
Pappu alias Babu Lal through LRs
and others ...Appellants
Vs.
Ved Parkash and others ...Respondents
CORAM:- HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present: Mr. Johan Kumar, Advocate
for the appellants.
***
ANIL KSHETARPAL, J.(Oral)
1. With the consent of the learned counsel representing the
appellants, these two connected regular second appeals shall stand disposed of
by this common order.
2. These two appeals have been filed by the counter-claimants. The
plaintiffs (respondents herein) filed a suit for the grant of decree of permanent
injunction claiming that they are in possession of the shop while working as
'Ved Tailor and Drapers', since 1990. The defendants, while contesting the suit
claimed that the plaintiff is not in possession of shop. Subsequently, it was
asserted that the plaintiff was permitted to occupy the shop as a licensee in
February, 2006. Thus, a counter-claim for the grant of relief of mandatory
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Neutral Citation No:=2024:PHHC:037295
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injunction was prayed for. The trial court dismissed the suit whereas, decreed
the counter-claim. However, the First Appellate Court has reversed the
judgment and decree passed by the trial Court while recording the following
two findings:-
i. The plaintiff is proved to be in settled
possession of the shop since 1990 as he has
produced electricity bills and its payment from
1990 till filing of the suit.
ii. The counter-claimants have failed to prove the
authenticity of the license granted in favour of
the plaintiff in the year 2006 as the plaintiff is
in continuous possession of the shop since
1990.
3. The First Appellate Court observed that the counter-claimants can
file the separate suit for possession.
4, Heard the learned counsel representing the appellant at length and
with his able assistance perused the paper-book.
5. Learned counsel representing the appellants submits that the
electricity bills from the year 1990 have been issued in the name of their
predecessor. He further submits that the suit for mandatory injunction is
maintainable as a substitute for suit for possession. He relies upon judgment
passed in 'Joseph Severance and others Vs. Benny Mathew and others'
2005 (2) RCR (Rent) 493.
6. This Court has considered the submission of the learned counsel
representing the appellant. It shall be noted here that the counter-claimants
filed the counter-claim specifically asserting that the plaintiff was permitted to
occupy the shop as a licensee in February 2006. However, they have failed to
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prove this fact. The plaintiff have produced the electricity bills from the year
1990 till 2007, which shows that the plaintiff is in continuous possession of the
shop since 1990. The First Appellate Court has already granted liberty to the
counter-claimants to file an appeal. The remedy of filing a suit for mandatory
injunction shall be awailed promptly, i.e. immediately after the cause of action
arises.
7. On a Court question, the learned counsel representing the
appellants admits that the remedy for the plaintiff is not only limited to the
filing of a counter-claim.
8. In the circumstances of the present case, the plaintiff is in settled
possession. In absence of the evidence to prove that the plaintiff was inducted
as a licensee by the counter-claimants, the suit for mandatory injunction shall
not be maintainable. This Court has carefully read the judgment passed by the
Supreme Court in Joseph Severance's case (Supra). In that case, the
relationship of licensor and licensee was not in dispute. The Court came to
conclusion that a license was granted and it had been terminated. Hence, the
suit filed by licensor was held maintainable as he terminated the license. With
the greatest respect, the aforesaid judgment shall not be applicable to the facts
of the matter at hand
9. Keeping in view the aforesaid facts and discussion, both the
appeals are dismissed.
10. All the pending miscellaneous applications, if any, are also disposed
of.
(ANIL KSHETARPAL)
14.03.2024 JUDGE
neeraj Whether speaking/reasoned : Yes No
Whether Reportable : Yes No
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