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High Court Of Delhi
OM PARKASH KUTHIALA - Appellant
Versus
SHARAD ROHTAGI - Respondent
Decided On : 09/21/1998
Held:
It appears that the entire argument has been built up as if the possession was ever delivered to the appellant; it was a simple privilege and it Has come to an end for he was never in "possession". The appellant might have been allowed to use it. User docs not amount to possession so long as any vested right is not created in the property.
A court while granting relief is supposed to adopt a justice oriented approach and could always grant appropriate relief to avoid unnecessary multiplication of suits and to do substantial justice in between the parties. Supposing the decree for possession is granted in respect of barsati as well as latrine and the appellant is allowed to use the terrace without having any right therein, it would just amount to perpetuating illegal and unauthorised occupation of the terrace and then throttling justice by the niceties and technicalities of the rules of procedure. This shall be against the basic tenets of doing substantial justice in between the parties. One cannot ignore a a well known judicial proverb that all rules of procedure are hand maids of justice. In such circumstances, I find it difficult to accept the submission of the learned counsel for the appellant. In so far as loss of revenue is concerned, Section 12 (ii) of the Court Fee Act is an appropriate answer. Since the appellant way never in possession, relief of prohibitory injunction to enter upon terrace and mandatory injunction to remove its article from the terrace, if there is any, could be the only relief. Since court fee should have been paid on permanent and mandatory injunction also, it would be appropriate if in exercise of the powers granted under Section 12(2) of the Court Fee Act, the respondent is directed to pay court fee for perpetual injunction against the respondent not to enter upon terrace and mandatory injunction to remove article from the terrace, if there is any, within three weeks. On doing so, the respondent shall be entitled to permanent injunction as well as mandatory injunction as aforesaid.
( 1 ) THIS appeal is directed against a decree for possession of Barsati Floor of House No. 51/3 (Original Road) Deshbandhu Gupta Road, Western Extension Area, Karol Bagh, New Delhi.
( 2 ) BRIEFLY stated, the relevant facts which have led to the filing of the present appeal are as under:
( 3 ) ON 26th October 1971, Smt. Mangla Devi let out the first floor and a motor garage on the ground floor in the aforesaid premises by lease deed dated 26/10/1971. Under clause 13 of the said deed, the lesser had permitted use of terrace on the second floor temporarily without any compensation. Clauses 13 and 14 of the said lease deed are as under:
"13. That the Lessor has permitted temporarily without any compensation the use of the terrace on the second floor. The Lessee covenants with the Lessor specifically that he will not obstruct or make any hindrance in the construction of the second floor if the Lessor obtains requisite permission to do so from the Authorities concerned. 14. That no part of the second floor has been let out to the Lessee and the entire premises on the second floor including the Barsati and terrace exclusively belong to the Lessor which she may utilise for any purpose whatsoever including fresh construction of the premises". (emphasis supplied ).
( 4 ) THE barsati was lying locked. In 1983, it was found that the tenant had broken upon the lock of the barsati and started using the same. Though the appellant promised to remove his goods, according to the case of the plaintiff, he did not vacate. Accordingly, the plaintiff/respondent filed the suit for a decree of possession of "the Barsati of the House No. 51/3, Original Road now known as Deshbandhu Gupta Road, Western Extension Area, Karol Bagh, New Delhi shown in red in the plan" and also "for Rs. 10,800. 00. . . against the defendant".
( 5 ) THIS suit was contested inter alia on the ground that the defendant was and continues to be in possession as tenants and in respect of first floor and garage on the ground floor, for, his demand and request to include the barsati floor in the tenancy of the defendant was accepted by the landlord. The defendant is not liable to pay any amount.
( 6 ) THE trial proceeded on following three issues:
1. Whether the plaintiff is entitled to a decree of possession? 2. Whether the plaintiff is entitled to a decree for recovery of Rs. 10,800. 00 as prayed for? 3. Relief.
( 7 ) THE learned trial court decreed the possession of the entire barsati floor including the barsati as shown in the site plan Ex. P6 and he also decreed recovery of Rs. 10,800. 00 against the defendant. The appellate court upheld the judgment and decree of the first appellate court.
( 8 ) FEELING aggrieved by the aforesaid judgment and decree, the second appeal has been filed.
( 9 ) SHRI Madan Bhatia, learned Sr. counsel appearing on behalf of the appellant contends and rightly so that the barsati and terrace are two separate premises though both are situated on the second floor especially in view of the Clauses 13 and 14 of the lease deed REFERRED TO to above. The appellant was granted licence of the terrace on the second floor. The decree, as has been passed could not have been granted, for, firstly, the appellant was entitled to use the terrace until lesser was in a position to make construction after taking requisite permission; secondly, the plaint is founded on the allegation that the appellant forcibly opened the barsati in January 1983 and occupied it. the cause of action in para 12 is confined to barsati, the damages for wrongful use and occupations are confined to barsati; the court fee has been paid on barsati only and the notice dated 22/3/1985 is also confined to barsati; thirdly, the licence in question was not revocable; there is no averment in the plaint that the licence was ever revoked, nor any court fee has been paid thereon. He further contends that the plaint lacks material particulars so far as the terrace is concerned, and the pla
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