Delhi District Court

Sh. Raj Kumar Gupta vs M/S Hotel Oasis on 6 April, 2010

IN THE COURT OF SHRI AMIT KUMAR, JSCC/ASCJ/GJ(NW), ROHINI COURTS, DELHI

S123/08/97

Sh. Raj Kumar Gupta

S/o Late Sh. Pokhpal
of Khokha/Pan Shop in
Hotel Oasis, Pitampura (HD8),
Delhi110034. .....Plaintiff

Versus

1. M/s Hotel Oasis

service to be effected through its
Manager Sh. Narinder Kumar
of HD8, Pitampura,
Delhi34.

2. Sh. Kishan Singhal,

Assistant Manager of Hotel Oasis,
HD8, Pitampura,
Delhi110034.

3. Municipal Corporation of Delhi

Service to be effect Through its Commissioner
Town Hall, Chandni Chowk
Delhi110006. .....Defendants

Date of Institution of the Suit : 14.03.1997

Date of Reserve for Judgment : 18.03.2010

Date of final Judgment : 06.04.2010

JUDGMENT

1. Present is a suit seeking relief of Perpetual Injunction on the averments that plaintiff is a panwari and
was inducted as a tenant by Hotel Oasis on a monthly rent of Rs.3,000/ with a security deposit of
Rs.25,000/ and further when the plaintiff could not pay the rent on monthly basis, he was directed by
defendant No.1 to pay Rs.115/ per day which plaintiff has duly paid and since then is in lawful
possession of his khokha i.e. a pan shop. However, the defendants now are trying to dispossess the
plaintiff from the suit property without following the due process of law and hence by way of original
suit it was prayed that the original defendants i.e. Hotel Oasis and its Assistant Manager/defendant
No.2 should be restrained from dispossessing or removing the plaintiff from this Khokha without
following the due process of law.
2. In the written statement filed by the the original two defendants, it was stated that the suit is without
any cause of action as plaintiff was never inducted as a tenant but was given only a license to run a
shop of betels on payment of license fees in accordance with the sales at his Pan Shop and the same has
not been paid since Dec.'96 and the other story of security deposit or the rent is absolutely false.
3. Subsequent to that a Local Commissioner was appointed in this case who gave his report dated
24.04.1997 and found that plaintiff is in possession of Pan Shop abutting Hotel Oasis. The parties were
directed to maintain status quo in view of the report of the Local Commissioner. However,
subsequently the injunction application of the plaintiff was dismissed vide order dated 05.04.2002.
4. It is also important to note that prior to that on 07.09.2000 MCD was impleaded as defendant No.3 in
this case on an application filed by the plaintiff and prior to that plaintiff was examined by my Ld.
Predecessor on 01.08.2000 on which date he has given a statement that the suit property i.e. the
Khokha/his Pan Shop has been demolished by one Shamsher and Subhash alleged to be the employees
of MCD. In the meantime plaintiff also preferred an application u/o 39 rule 2A CPC on 05.08.1997
upon which an issue in respect of the contempt was framed by my Ld. Predecessor on 09.09.1998 as
under:
1. As to whether the defendant is liable for the contempt of the court, if any its effect? OPA.
and on the main suit after pleadings of the parties following issues were framed by my Ld. Predecessor
on 05.04.2000:
1. Whether the plaintiff is entitled to relief of Perpetual Injunction as claimed? OPP

2. Relief

5. My findings on the main issues as well as on the contempt application are as under:

ISSUE NO.1 (In the main suit):

The onus of proving this issue was on the plaintiff who himself has appeared as PW1 and
has stated that he was running a Pan Shop on rent and was paying rent to defendant No.2
who was the Manager of defendant No.1 and has also placed on record the copies of the
payment made daily to defendant No.2 vide his personal diary maintained vide Ex.PW1/1
to Ex.PW1/13. However, very surprisingly in his examination in chief itself he states that
he was asked by defendants No.1 & 2 to vacate the Khokha by 18.03.1997 and he therefore
vacated the Khokha on 15.03.1997 at 12.00Noon and handed over the keys in the office of
defendants No. 1 & 2 but they did not refund his security. Hence he filed the suit which
clearly means that plaintiff himself has admitted that possession of the suit premises was
handed over by him to defendants No. 1 & 2 voluntarily of his own on 15.03.1997.

6. Further he has admitted while giving his statement in the court dated 01.08.2000 and
subsequently on 03.10.2007 that suit property has already been demolished by MCD and in
facts it appears that entire suit has become infructuous. Ld. Counsel for the defendants in
this regard has strongly relied upon the judgment of Hon'ble Supreme Court reported in
2008 IV AD (SC) 72 titled as Sri Thimmaiah V Shabira & Ors. and has argued that once it
is proved on record that plaintiff is not in possession of the property, the question of
granting him Perpetual injunction without claiming possession does not arise, whereas Ld.
Counsel for the plaintiff has stated that Local Commissioner who visited the property on
24.04.1997 has found the plaintiff in possession of the property and therefore, plaintiff has
 proved on record that he is in possession of the property and as such is entitled to the relief
of injunction.

7. I have considered the submissions made by the parties. Admittedly plaintiff himself has
stated that he handed over the possession to defendant No.1 & 2 on 15.03.1997 but that was
prior to the visit of the Local Commissioner but subsequently he has admitted in the court
while being examined u/o X CPC on 01.08.2000 and subsequently by the court on
03.10.2007 wherein he has admitted that suit property has been demolished by the MCD
which shows that even if on the date of the visit of the Local Commissioner the plaintiff
was in possession of the suit property but the suit property ceased to exist subsequently
since demolished by the MCD and as such the entire suit of the plaintiff has become
infructuous as the only prayer made in the suit and the only issue framed in the suit is in
respect of the injunction against unlawful dispossession asked by the plaintiff and once he
himself states in the court that he is not in possession and more so the suit property is not in
existence, he is not entitled to the relief of injunction.

8. Further, even if it is presumed for the sake of arguments that the suit property do exists
and the plaintiff is in possession of the property, the plaintiff on merits is required to show
that he has any right, title or interest may be as a tenant/licensee or as owner to protect his
possession in the property.

Admittedly the onus to prove that the Khokha/Pan Shop is situated on the property of Hotel Oasis was
on the plaintiff. It was for the plaintiff to show that he is a tenant or licensee of Hotel Oasis on the
property owned by Hotel Oasis. Though defendant No.1 Hotel Oasis has stated in its written statement
that plaintiff was given this place on the license basis, yet it was for the plaintiff or defendant No.1 to
show that they have any right on the land underneath this Khokha. It is the claim of the MCD that this
was an encroachment on the government land and the same was removed as per the DMC Act and the
plaintiff has miserably f ailed to prove that he has any right, title or interest in the Khokha or the land
underneath it belongs to Hotel Oasis. Though it is correct that stairs leading to Hotel Oasis also abuttes
the khokha of the plaintiff, as shown in the photographs filed by the Local Commissioner but that does
not mean that if the stairs are on the municipal land, the plaintiff has also a right to run his khokha on
the municipal land. Plaintiff has failed to prove the issue in his favour and the same accordingly is
decided against him.
9. It is also important to mention here that Ld. Counsel for the plaintiff has strongly relied upon the
crossexamination of defendant witnesses to show that the documents made available with them i.e. site
plan, sanctioned plan of Hotel Oasis has been concealed and as such it should be held that plaintiff has
a right to protect his possession but I do not find any force in this contention as the plaintiff has to stand
on his own legs or he should have well summoned the sanctioned plan of defendant No.1 from the
record to prove that the land on which the suit property exists does not belong to MCD but is a part and
parcel of Hotel Oasis. Plaintiff cannot take benefit of the nonproduction of the documents by the
defendants when the onus to prove the issue was on him.
10. It is also important to mention here that MCD has strongly argued that the suit is barred by Section
11 of the CPC i.e. by the principles of resjudicata on the averments that a similar suit of the plaintiff
based on the same cause of action filed against the MCD and Hotel Oasis was dismissed on 20.11.2000
by Sh. Daya Prakash, the then Civil Judge, Delhi and as such this suit should also be rejected on the
ground of resjudicata.
11. I have heard the submissions on it and since it is legal point, has been considered. Admittedly the
present suit was instituted prior to that suit i.e. on 14.03.1997 when MCD was not a party, who was
impleaded as defendant No.3 on 07.09.2000 whereas that suit bearing No. 2223/99 was instituted on
06.10.1999 wherein MCD and Hotel Oasis were party and it was specifically mentioned in that suit that
a similar suit against Hotel Oasis and another is pending in the court. However, this fact was not
mentioned in the application filed in this court u/o VI rule 17 CPC. Record shows that a preliminary
issue was framed in that suit to the effect whether plaintiff has any right to carry on the business on the
suit property and it was decided that he has no such right. Ld. Counsel for the plaintiff has submitted
that since this issue was not decided on merits, it cannot operate as resjudicata to this suit whereas the
counsel for the defendants has argued that since the issue was decided after hearing the parties, the
same was heard and decided and has attained finality and as such operates resjudicata to this case. The
Ld. Counsel for the plaintiff in this regard has placed reliance upon the following judgments Chandan
Dass V UOI & Ors. AIR 1968 P&H 529; AIR 2000 NOC 21 (Madras); (2002) 2 Supreme Court Cases
85; 1963 Supp.(2) SCR 127 and AIR 1987 Delhi 226.
12. I have heard their submissions. Admittedly MCD was party to that suit and subsequently became
party to this suit and further when in October was made a party to this suit, the suit decided by Sh.
Daya Prakash was already subjudice which means that the cause of action, the parties, the suit property
in both the suits were common. That suit was decided on 20.11.2000 when MCD was already a party in
this suit and though evidence was not recorded in that case but a specific issue to the effect "whether
plaintiff has any right to carry on the business in the suit property" was framed and decided by the court
after hearing the parties. Whether right or wrong that issue attained finality and was not challenged by
the plaintiff in any court and he cannot be permitted to raise that issue again without challenging the
order once it has attained finality. The suit was not rejected for any technical reason or being barred by
any law to hold that present suit is not barred by the principles of resjudicata. It was a finding of the
fact given by the court after hearing parties and plaintiff is bound by that order once it has attained
finality. The judgments relied upon by the plaintiff with utmost respect are not applicable to the facts
before me as the previous suit was not dismissed or rejected on a technical issue or a legal issue but
was decided on the facts and as such I find force in the contention of the counsel for the defendants that
the present suit is also barred by principles of resjudicata.
13. Now I will take up the issue of contempt petition. The onus of proving this issue was also on the
plaintiff and in this regard plaintiff in his testimony has simplicitor stated that on 24.06.1997 Shamsher
and Subhash came to the suit property and on instruction of the defendants demolished his Khokha.
Apart from this single line statement he has not led any evidence and admittedly this Shamsher Ali and
Subhash are the employees of MCD and the date on which the statusquo order was passed i.e.
21.04.1997, the MCD was not a party to this litigation. MCD was impleaded as defendant only on
07.09.2000 and they being not a party to this case on 21.04.1997 cannot be presumed to be aware about
the orders of statusquo passed by this court and as such there cannot be a contempt committed by them
when they are not aware about the orders passed. The plaintiff/applicant was required to lead cogent
evidence to show and prove that action taken by the MCD was at the behest and instance of the then
defendants No. 1 & 2, which he fails to show.
14. Otherwise also as per the sheet dated 04.11.1999 defendant No.2 has already died and plaintiff has
failed to show that who on behalf of Hotel Oasis which is a private limited concerned instigated MCD
to demolish the Khokha despite being aware of the orders dated 21.04.1997 passed by this court. The
issue, therefore, is not proved by the plaintiff and the contempt application is dismissed.
15. RELIEF:
In view of my findings given on both the issues, the suit and contempt application is
dismissed with no order as to costs. Decree Sheet be prepared. File be consigned to Record
Room.