* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO 163/2010
Date of Decision: 01.11.2010
DURGA PRASHAD ..... Appellant
Through: Mr. Bharat Gupta, Adv.
versus
PREMWATI & ORS ..... Respondents
Through: Mr.Parvendra Kumar Sharma, Adv.
CORAM:
HON'BLE MR. JUSTICE MOOL CHAND GARG
1. Whether the Reporters of local papers may be allowed
to see the judgment? No.
2. To be referred to Reporter or not? No.
3. Whether the judgment should be reported in the Digest? No.
: MOOL CHAND GARG,J (Oral)
C.M.7218/2010
Exemptions allowed subject to all just exceptions.
FAO 163/2010
1. This order shall dispose of an appeal filed by the appellant
against the order dated 15.12.2009 whereby while allowing his
application under Order 39 Rules 1 and 2 of the CPC, the Additional
District Judge has dismissed the application filed by the appellant
under Order 40 Rule 1 CPC. The appellant who filed a suit in the Court
of Additional District Judge as plaintiff claims that he was a tenant in
shop bearing No.246, Katra Peran, Tilak Bazar, Delhi-6 (hereinafter
called as the suit shop) measuring 5x6ft. under one Shri Phool Chand
who has since expired. Respondent No.1 is the wife of late Shri Phool
Chand and the respondents No. 2 to 6 are his sons. The appellant has
sought possession of the suit property from the respondents who found
the appellant sitting in the suit shop on 25.5.09 when he visited the
same. It was urged by the appellant that the respondent had taken
unauthorized possession of the suit shop by breaking open the locks.
He complained to the police to whom the appellant showed the rent
receipt dated 22.03.1994 qua which it was stated by the respondent
FAO 163/2010 Page 1 of 4
that it was forged and fabricated and accordingly, no action was taken
by the police. Thereafter, he filed a complaint and then filed the present
suit along with applications under Order 39 Rules 1 and 2 of the CPC
and Order 40 Rule 1 of the CPC.
2. During the course of hearing, I enquired from the appellant as to
whether he was having rent receipts after 1994 till 2009 to which he
answered in the negative. It was stated by him that the respondents
were not accepting rent. No explanation, however, was given as to why
the appellant has not taken recourse to Section 27 of the DRC Act for
deposit of rent. On the other hand, learned counsel for the respondents
submits that the suit property was, in fact, vacated by the appellant suo
motto in the year 1994 after accepting huge amount from the
respondent since then it is the respondent who is in possession of the
suit property. It has been denied that the respondents took over the
forcible possession of the property or that the appellant has any prima
facie case or balance of convenience for the purpose of seeking relief in
the form of appointment of a receiver.
3. I have gone through the record and have also perused the
impugned order. It would be appropriate to take note of the certain
observations made by the ADJ which goes to show that the learned ADJ
has taken note of the story of both the side and has rightly come to a
conclusion and while the appellant may be entitled to any injunction
order under Order 39 Rules 1 and 2 CPC but he was not entitled. To
the relief of appointing a receiver. The observation made by the learned
ADJ are reproduced hereunder:
“I have heard the ld. Counsel for the parties and have
perused the record of the case file carefully. The ld. Counsel
for the plaintiff referred to several documents including the
electricity bill of June, 2009, postal receipt of the money
order dated 12.2.09 and 21.2.09, copy of the local sales tax
registration, central sales tax and sales invoices dated
11.12.01 as well as copy of the deposit challan of the sales
tax dated 1.4.95, 1.7.95, 1.10.95 and local sales tax and
central sales tax for the period 1995 to 1996, Central sales
tax assessment order dated 1995-96,receipt of deposit of
local sales tax and central tax dated 30.9.01 and 31.12.01
respectively and ST form, and submitted that rent stands
paid upto March, 1994 and thereafter the rent was not
accepted as was sent by money order dated 12.2.09 and
21.2.09.
FAO 163/2010 Page 2 of 4
There is no sufficient explanation as to why the rent
was not paid for such a long period by the plaintiff which
prima facie demolish the case of the plaintiff as also the
documents relied upon as referred to above so as to plead
land show the possession during the relevant period are not
the documents of possession prima facie which documents
can be easily procured by the plaintiff specially keeping in
view the admitted pleadings regarding the dispute with Shri
Phool Chand starting from 1992-93 when he, plaintiff was
not allowed even to perform pooja in the suit shop and had
to return back without performing the pooja. There is no
document on record so as to substantiate the plea prima
facie that there was some interaction between the parties to
the suit and the police station concerned with regard to the
opening of the shop because of foul smell by the beat
constable on the complaint by the defendants. Rather the
story/ pleadings by the plaintiff as put forward by the
plaintiff in itself shows that the plaintiff was not at all
visiting the shop regularly and as such the story of irregular
visit by the plaintiff is neither substantive on facts as
pleaded nor does it appeal to the reason in the given facts.
On the other hand, the plea taken by the defendants with
regard to the possession of the suit shop taken over from the
plaintiff by the deceased Phool Chand, prima facie looks to
be substantial defence in response to the the plea of the
plaintiff and admission of the dispute in the year 1992-93 as
above and subsequent event as per the admission of the
plaintiff itself in the plaint. Although the defendants have not
placed any documents with regard to the possession whereas
the possession of the suit shop till the plaintiff was
dispossessed as pleaded in the plaint without any supporting
documents of incident of foul smell as well as facts of
possession by the plaintiff as pleaded is also not beyond
doubt and as such no prima facie view can be taken in
favour of the plaintiff in the given facts and circumstances
that either he was regularly visiting the shop or was in
possession of the shop as tenant before the date when he
found himself dispossessed and defendants in possession of
the suit shop, who has admittedly not paid rent since 1994
and approached this court on the basis of complaint only
and not on the basis of any evidence in respect of the story
of beat officer which story looks to be a concocted story
prima facie. However, in the facts and circumstances of the
case where defendants is also lacking support to their
possession of the shop so their deceased father Shri Phool
Chand prima facie view is taken on the basis of the
pleadings and documents on record and the plea of the
plaintiff which need to be proved by way of evidence.
Accordingly, it would be in the interest of justice and fair
trial of the case that till pendency of the suit the defendants
are restrained from alienating or transferring the possession
of the suit shop to third person and to keep status quo in
FAO 163/2010 Page 3 of 4
respect of the suit shop till the decision of the suit as in the
given facts balance of convenience lies in favour of the
plaintiff who shall suffer irreparable loss in case no such
orders are passed on the application filed under Order 39
Rules 1 & 2 CPC. Accordingly, the application under Order
39 Rules 1 & 2 CPC is partly allowed with direction to the
defendants as above whereas the application filed under
Order 40 CPC in the given facts would be against the interest
of the defendants who pleaded themselves to be in
possession of the suit shop since 1994 as per pleadings
taken in defence of the suit which plea is probable and is
plausible defence which need to be belied by the plaintiff
during evidence while proving the case of dispossession in
the year 2005 as per pleadings of the plaintiff. As such there
is no case for appointment of the receiver prima facie in
favour of the plaintiff in the given facts as discussed above.
The application under Order 40 CPC as such is dismissed
although in support of the same the plaintiff relied upon the
case law in case of Batliboi & Co. Vs. N.K. Verma reported in
49(1993) DLT 310 and Meghji Jeth Shah Vs. Kalyanji Najik
Shah reported in AIR 1987 Bombay 273 of which facts are
distinguishable from the facts in hand as in case of Batliboi
& Co. (Supra) there was evidence in the form of local
commissioner for passing the order on the misc. applications
whereas in the case of Meghji Jeth Shah (Supra) there was
prima facie view of Hon’ble Apex Court that the plaintiff was
running the business till he was wrongly dispossessed
whereas in the present case no prima facie view is taken of
the plea of the plaintiff and as such the application filed by
the plaintiff under Order 40 CPC needs to be dismissed.”
4. I concur with the reasoning given by the learned ADJ taking into
consideration the facts and circumstances of the case. I am unable to
agree with the learned counsel for the appellant that it was a case
where a receiver also ought to have been appointed as prayed for.
5. The Appeal is accordingly dismissed.
6. No costs.
MOOL CHAND GARG,J
NOVEMBER 01, 2010
‘ga’
FAO 163/2010 Page 4 of 4