RSA No.43/2011

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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Date of Judgment: 28.02.2011

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RSA No.43/2011 & CMs No.4311-12/2011

OM PRAKASH SAINI

………..Appellant

Through: Mr. Akhil Mittal, Advocate.

Versus

SUSHIL KUMAR

……….Respondent.

Through: Nemo.

CORAM:

HON'BLE MS. JUSTICE INDERMEET KAUR

1.Whether the Reporters of local papers may be allowed to

see the judgment?

2.To be referred to the Reporter or not?

Yes

3.Whether the judgment should be reported in the Digest?

Yes

INDERMEET KAUR, J. (Oral)

1

This appeal has impugned the judgment and decree dated

29.01.2011 which has affirmed the findings of the trial Judge dated

28.04.2010 whereby the suit filed by the plaintiff Om Prakash

seeking permanent injunction against the defendant restraining

him

from

dispossessing

him

from

the

portion

of

the

premises/compound of Laxmi Super Station, Laxmibai Nagar, New

Delhi had been dismissed.

2

The plaintiff claimed himself to be a tenant in respect of the

said portion since 1976. His case was that the initial rate of rent

was `300/- per month which was later on enhanced to `600/- per

month and was inclusive of electricity and water charges. He is in

physical possession of the suit property. He had been assessed to

2011:DHC:1255

RSA No.43/2011

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house tax by the NDMC and he is being paid house tax since then.

He had also paid rent to the defendant. He was being harassed by

the defendant and the defendant was threatening to dispossess

him. Suit was filed.

3

In the written statement, the defendant controverted his

claim. It was stated that the plaintiff had encroached upon the

premises of the plaintiff on the night intervening 05/06.07.1999;

police complaints had been lodged; it was denied that the plaintiff

is a tenant in the premises. It was stated that the plaintiff is

stealing electricity and report to that effect had also been lodged;

the plaintiff is a tress-passer. The suit premises had been leased

out by M/s Hindustan Petroleum to the defendant and the house

tax was being paid by the defendant in his own name.

4

On the pleadings of the parties, the following two issues were

framed:-

“1.

Whether the plaintiff is entitled to relief of permanent injunction as

claimed in the plaint? OPP.

2. Relief.”

5

Oral and documentary evidence was led. Three witnesses

were examined on behalf of the plaintiff. The defendant had

examined two witnesses. The site plan of the portion in occupation

of the defendant was proved as Ex. PW-1/C. The plaintiff in support

of his oral evidence had relied upon a rent receipt Ex. PW-1/B for

the sum of `900/- stated to be the rent payment for a period of

three months. This document is dated 21.05.1976. Perusal of this

document clearly shows that it was a payment made on account of

tyre repairs; it nowhere mentions that it was issued to the plaintiff.

Trial Judge had noted that the plaintiff had admitted in his cross-

examination that the rent was being paid by him to the Manager;

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RSA No.43/2011

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the said document was even otherwise not issued by the Manager.

This document, after careful scrutiny, had been discarded. Ex. PW-

1/1 to Ex. PW-6 were the challans allegedly issued by the NDMC to

the plaintiff for keeping some tools and machines on the road. They

range between dates 16.12.1988 to 15.07.1999. Trial Judge had

noted that these documents on scrutiny clearly show that the

plaintiff was running his tyre repair shop on a pavement in front of

Laxmi Super Service. He was challaned by the NDMC for keeping

his tools and machines on the pavement. This was clear from the

deposition of PW-3; suit had been filed by the plaintiff in the year

1999; after that date, no challans had been issu