Valmiki J. Mehta, J.
1. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) is filed by the North Delhi Municipal Corporation/appellant impugning the Judgment of the First Appellate Court dated 16.2.2012 by which the first appellate court has set aside the Judgment of the Trial Court. Trial Court had by its Judgment dated 31.10.2011 dismissed the suit of the respondents/plaintiffs so far as the relief/claim of permanent injunction against dispossession is concerned, but had decreed the suit for recovery of rent of Rs.391.84/- against the appellant/defendant/tenant. As a result of the impugned judgment of the first appellate court appellant/defendant has been restrained from interfering with the possession of the respondents/plaintiffs of the suit property forming a portion of Municipal no. 2650, Ward no.V, Roshan Pura, Nai Sarak, Delhi-110006.
2. The facts as pleaded by the respondents/plaintiffs were that the appellant/defendant was a tenant in the suit property which was shown in red colour in the site plan filed. It was pleaded that the earlier owners sold the suit property to the respondents/plaintiffs by a registered Sale Deed dated 17.4.1997/Ex.PW1/1. On purchase of the property the earlier owner issued a Letter of Attornment dated 1.5.1997 to the appellant/defendant. The entire property, of which the suit/tenanted property formed a part, was in a dilapidated state and the appellant/defendant who had been running the school in the suit/tenanted premises had shifted the school to another location and the school therefore was not functioning from the suit/tenanted property for a long period of time of about 25 years. It is the further case of the respondents/plaintiffs that since the suit premises were not used, were in a dilapidated condition, hence, the same were abandoned by the appellant/defendant from September, 1997 and from when respondents/plaintiffs came to be in possession of the suit property. Respondents/plaintiffs sent a Legal Notice dated 27.1.1998 to put these facts on record. It is further averred in the plaint that on 22.4.1998 some persons claiming to be the employees of the appellant/defendant came to the suit/tenanted property and asked the respondent no.3/plaintiff no.3 to open the lock and threatened to dispossess the respondents/plaintiffs from the suit/tenanted premises. The subject suit therefore came to be filed that the appellant/defendant had no right to dispossess the respondents/plaintiffs from the suit/tenanted premises which was abandoned by the appellant/defendant. Arrears of rent till abandonment of Rs. 391.84/- were also claimed.
3. Appellant/defendant contested the suit and pleaded that there was never any abandonment of the suit/tenanted premises. It was pleaded that respondents/plaintiffs forcibly prevented the appellant/defendant from entering into the suit/tenanted property and consequently a report was lodged with the police on 16.4.1998. Appellant/defendant stated that the respondents/plaintiffs had put a lock in the suit/tenanted premises on 29.4.1998 and which was illegal. The rent to the previous owner was said to be paid upto 31.3.1998 showing that there could not be abandonment in September, 1997. The action of the respondents/plaintiffs of forcibly putting lock on the premises so that the appellant s/defendant s employees cannot enter the premises was pleaded to beillegal. It was finally pleaded that the chowkidar of the appellant/defendant sought to enter the suit premises on 29.4.1998 and he was illegally not allowed to do so. The suit was hence prayed to be dismissed.
4. After pleadings were complete, trial court on 10.8.2000 framed the following issue:-
i) Whether the suit is bad for want of notice u/s. 478 of the D.M.C. Act? OPD
ii) Whether the suit is bad for non joinder of parties? OPD
iii) Whether the plaintiff is entitled to the decree for the recovery as asked for in plaint? OPP
iv) Whether the plaintiff is entitled to the decree for permanent injunction as asked for in the plaint? OPP
5. The main issue is issue no.4 as to whether the appellant/defendant had abandoned the suit premises and the respondents/plaintiffs were entitled to an injunction as they were in legal possession pursuant to abandonment of the suit/tenanted premises by the appellant/defendant and hence appellant/defendant should not forcibly dispossess the respondents/plaintiffs. This issue was decided by the trial court in favour of the appellant/defendant by persuasive reasoning given in paras 10 and 11 of its judgment, and these paras read as under:-
10. The burden to prove the issue was upon the plaintiff. PW-1 stated that the suit property was purchased by the plaintiffs on 17.4.1997 by a registered sale deed. The copy of sale deed is proved as Ex.PW-1/1. The site plan is proved as Ex.PW-1/2. The plaintiffs have averred that the portion shown in red colour in the sit plan Ex.PW-1/2 was under the tenancy of the defendant and the chowkidar of the defendant has stopped coming to the premises after the first week of September, 1997 and the plaintiffs are in exclusive possession of the tenanted portion as well as the rest of the property bearing Municipal No. 2650, Ward No. V, situated at Roshanpura, Nai Sarak, Delhi-06. It is prayed by the plaintiff that the defendant be restrained from interfering with their peaceful possession in respect of property bearing Municipal No. 2650, Ward No. V, situated at Roshanpura, Nai Sarak, Delhi-06 and from forcibly dispossessing the plaintiffs from the suit property without due process of law. 11. Admittedly, the defendant is the tenant of the suit property and the PW-1 clearly admitted that at the time of purchase of the premises, MCD was in possession of the portion of the property bearing Municipal No. 2650, Ward No. V, situated at Roshanpura, Nai Sarak, Delhi-06. PW-1 also admitted that the red portion in the site plan was under the tenancy of MCD and its school when it was purchased. It is the case of the plaintiffs that after the first week of September, 1997, the chowkidar of the defendant is not coming and they are in possession of the suit property exclusively, but, in the cross-examination, PW-1 admitted that Whenever the chowkidar of the MCD used to come we were told by him and we were told by him and we opened the lock of the main door. This witness also admitted that chowkidar was also having a key and in the cross-examination, it is also admitted that the officials of MCD came to the premises on 22.4.1998. It is admitted that no official of the MCD has not handed over the possession of the tenanted portion to the plaintiffs. It is stated by PW-1 as since September, 1997 nobody visited the premises and the possession of the tenanted portion automatically came to them. After purchase of the suit property, the plaintiffs should have given some notice to the defendant to the effect that the building is in dilapidated condition and the plaintiffs were required to send the notice that the building came in their possession after 17.04.1997 i.e. after execution of the sale deed. The PW-1 admitted that the chowkidar used to visit after the first week of September, 1997 and he was having key. Thus, it cannot be said that the plaintiffs were in exclusive possession of the tenanted property. None of the official of the defendant has handed over the possession of the premises. If the building is in dilapidated condition, then, the tenancy does not come to an end as the defendant is a tenant of a portion of the property since the year 1972. The plaintiffs have not approached the MCD authorities to have declared the building as dangerous. Simply on the averments of the plaint, the building cannot be declared dangerous. As per the D.M.C. Act, it is upon the Commissioner to declare a building dangerous and for this purpose, the plaintiffs were required to give some application to the MCD. No application has been given by the plaintiffs to the MCD. Plaintiffs are not able to prove that any letter of allotment was sent by Sh. Satish Chandra Mathur to the defendant. The plaintiffs have also not produced Sh. Satish Chandra Mathur in the witness box to show that the letter of allotment was served on the defendant. The plaintiffs are seeking the injunction against the whole property, whereas, the defendant was tenant only in part of the property bearing No. Municipal No. 2650, Ward No. V, situated at Roshanpura, Nai Sarak, Delhi-06. Even, if the suit property is not in proper condition then, it will not automatically terminate the tenancy of defendant. The plaintiffs have taken the possession of the suit property forcibly and they were supposed to file the eviction petition for claiming back the portion of the tenanted premises from the defendant. The plaintiffs are praying for a relief of permanent injunction on the basis of equity. As the plaintiffs have forcibly occupied the tenanted premises and the chowkidar of the defendant was also having keys, I am of the view that the plaintiffs are not entitled to relief of permanent injunction. The plaintiffs were required to file eviction petition as per the provisions of the D.R.C. Act. Thus, the issued is decided in favour of the defendant and against the plaintiffs. (emphasis is mine)
6. The First Appellate Court by the impugned Judgment dated 16.2.2012 has set aside the judgment of the trial court and held that the appellant/defendant had abandoned the suit premises. The first appellate court has held that the appellant/defendant in a conscious and deliberate act abandoned the suit premises. The abandonment is because of the property being dilapidated. The first appellate court has also held that the appellant/defendant was aware of the change of the ownership at least from the service of Legal Notice dated 27.1.1998/Ex.PW1/3 along with which the Letter of Attornment dated 1.5.1997 of the earlier owners addressed to the appellant/defendant was attached. The first appellate court has also referred to the photographs (Ex.PW3/3 to Ex.PW3/15) to show the dilapidated state of the premises and therefore the same showed as per the first appellate court the factum of conscious and deliberate abandonment of the suit premises by the appellant/defendant. Accordingly, the judgment of the trial court was reversed and the suit of the respondents/plaintiffs decreed for injunction by the first appellate court by observing as under:-
9. It is primarily the findings on issue no. 4, which has been assailed by the appellant and therefore, that alone is required to be looked into. The case of the appellant is that the property in question was purchased by them from the erstwhile owners through a registered sale deed and as the respondent was not using the property, which was in a dilapidated and ruinous condition, therefore, it was practically not looked after by the respondent rather it was abandoned by the respondent. Therefore, in order to save, preserve and protect their property, the appellants took the possession. The Ld. Trial Court has returned a finding against the appellant on the premises that the property was never vacated by the respondent nor the possession was handed over to the appellant. Therefore, the allegations on behalf of the respondent were believed by the Ld. Trial Court.
10. However, the instant case seems to be a case of conscious and deliberate abandonment by the respondent. It can be seen from the evidence that the appellant had purchased the property and letter of attornment was also sent by the erstwhile owner of the property to the respondent. Thus, respondent became aware of the change in ownership. Even if it is presumed that the letter of adornment did not reach the respondent, still the appellant had taken care to serve the respondent with a notice dated 27.01.1998 that too under a registered post. The property was purchased by the appellant in April 1997 and demanded the arrears of rent from first May 1997 to 31st August 1997 inasmuch as the possession of the property was taken by the appellant in September 1997. The appellants have proved on record the notice dated 27.01.1998 (Ex PW1/3) was served upon the respondent, as is evident from the AD Card (Ex. PW1/5). The postal receipt in this context is Ex. PW1/4. Thus, in any case, the respondent came to know about the purchase of the property by the appellant, copy of the allotment letter by Satish Chander Mathur dated 01.05.1997 was also annexed with the said notice thereby leaving no doubt about the status of the appellant vis a vis the property.
11. According to the respondent the watchman, who was occasionally visiting and occupying a room was thrown out in the first week of September, 1997. The respondent has stated that complaint was lodged with the Hauz Qazi, Police station on 16.04.1998. The delay has not been even attempted to be explained away nor for that matter the respondent has proved the said complaint, nor examined the watchman in question, Kapil Kumar in any manner shown as to what action the local police took. The notice served upon by the appellant on the respondent dated 27.01.1998 is capable to show that the possession was there with the appellant from January 1998 if not from September 1997. The respondent should have woken up at that stage and should have confronted the appellant inasmuch as the appellant has categorically asserted in the said notice that the premises was finally abandoned by the watchman of the respondent. In these circumstances, where was the occasion with the respondent or its official to claim the retention of the possession. Then again, the respondent has not taken care to elaborate and bring on record the fate of the complaint lodged by it with the police station on 16.04.1998.
12. This fact has not been disputed by the respondent that the premises was in a dilapidated condition and that was the reason as to why the school, which was run over by the respondent in the said premises was moved away in a neighbouring school.
13. The photographs depicting the physical condition of the property have been brought on record by the appellant, which are Ex. PW3/3 to Ex. PW3/15. The photographs speaks unto itself about the condition of the property, which is indeed in a dilapidated and a dangerous state, not fit for human habitation. Therefore, in these circumstances, the contentions raised on behalf of the appellant that it was a conscious and deliberate abandonment of the premises by the respondent seems to be correct. The carelessness and slackness on the part of the respondent in not responding and acting in response to the notice dated 27.01.1998 can be attributed to the impersonal nature of the respondent organization or it may again be a case of deliberate in action. Nevertheless, what has been brought on record on behalf of the appellant is that they had to purchase the property from its erstwhile owner, who in turn had issued an allotment dated 01.05-1997, which was further brought to the notice of the respondent by the appellant through their notice 27.01.1998. The appellant have been able to show that the property indeed came into their possession in September 1997. This fact was brought to the notice of the respondent in January 1998 and no response to that was there.
14. The respondent, on the other hand, has alleged that in April 1998 the appellants had forcibly occupied the premises. The contentions of the respondent do not get substantiated rather it is the case of the appellant, which stands on a better footing and appears to be more plausible and possible, when weighed in the scale of the preponderance of possibilities.
15. It seems that the Ld. Trial Court has fallen into error and has relied upon a single line in the testimony of appellant s witnesses i.e PW-1 with regard tothe keys of a particular room being there with the watchman of the respondent, which were never handed over. The testimony should have been whereas read in its entirety to draw inferences and that goes to show that appellant s cameinto the possession of the entire property in September 1997. In these circumstances, the conclusion arrived at by the Ld. Trial court vis a vis issue no. 4 does not go hand in hand with facts and the evidence.
16. In view of the foregoing discussions, it is apparent that the findings on issue no. 4 arrived at by the Ld. Trial Court cannot be sustained. Accordingly, appeal is allowed and finding in respect of issue no. 4 is reversed and recorded in favour of the appellant and against the respondent without touching the outcome of other issue, not being under challenge. (underlining added)
7. At the time of admission of this Regular Second Appeal on 19.2.2013, the following substantial question of law was framed:-
Whether the finding of abandonment of the tenanted premises by the appellant arrived at by the learned appellate court is perverse? If so, to what effect?
8. In my opinion, the aforesaid substantial question of law has to be answered in favour of the appellant/defendant and against the respondents/plaintiffs. The reasons are given hereinafter.
9. At the outset it requires to be noted that the suit premises had protection of the Delhi Rent Control Act, 1958 and unless it is found that there is deliberate abandonment of the suit/tenanted premises by the appellant/defendant, the appellant/defendant could only have been evicted by filing proceedings for eviction under Section 14 of the Delhi Rent Control Act and on complying with the ingredients, if they so existed, of any one or more of the sub-Sections of Section 14. Therefore, the vital rights of the appellant/defendant with respect to the suit/tenanted premises are in issue and it will have to be examined as to whether really there is abandonment of the suit/tenanted premises by the appellant/defendant keeping in mind that the appellant/defendant is not an ordinary private litigant or an individual person but is a corporation which functions under an authority of specific individuals and only such specific individuals can take a decision for abandoning tenancy rights, though of course abandoning can also be proved by circumstances. It will have to be seen as to whether really there is abandonment of the suit/tenanted premises and onus with respect to which has to be strictly discharged by the respondents/defendants considering the facts of the present case.
10. I completely agree with the reasoning of the trial court that there was no abandonment of the suit premises by the appellant/defendant. The conclusions of the trial court in this regard with which I agree are that merely because the suit/tenanted premises are dilapidated and not used would not mean that tenancy of the suit/tenanted premises would be abandoned. Abandonment is a concious act and a fact which has to be strictly and clearly proved once there are in issue legal and vested rights of the appellant/defendant in the suit premises having protection under the Delhi Rent Control Act. Merely because the premises are in dilapidated state, and not used, would not mean that there is abandonment, and in fact the very fact that the premises are dilapidated, is a ground for non-user and simply non-user cannot be urged as being equivalent to abandonment of premises. Since by its very nature dilapidated premises cannot be used, the same would lie locked and such non-user therefore cannot in any manner in law amount to abandonment of the tenancy of the suit/tenanted premises. In this regard the trial court has rightly relied upon the admissions made by the plaintiff no.3 who deposed as PW-1 and as per which admissions it is seen that the respondents/plaintiffs used to open the lock whenever the chowkidar of the appellant/defendant asked them till September, 1997 and that PW-1 claimed abandonment on the ground that since nobody visited the premises, possession of the suit/tenanted premises automatically came to therespondents/plaintiffs. In law, merely because the tenant does not visit or use the suit/tenanted premises would not mean that the suit/tenanted premises are abandoned. At this stage, I would reproduce the entire cross-examination of PW-1 and which shows that the trial court has in its judgment rightly relied upon the relevant portion of the cross-examination of PW-1 to hold that there is no valid case of abandonment. This cross-examination of PW-1 dated 19.4.2004 reads as under:-
PW-1. Harish Mehta recalled for cross-examination.
At the time of purchase of the premises the MCD was in possession in a portion of the property bearing No. 2650, Roshan Pura, Nai Sadak, Delhi. It is correct that in sale deed and in the site plan enclosed with it, the portion in possession of MCD was duly shown. The portion possession of MCD is shown in red color in the site plan enclosed with PW1. It is wrong to suggest school was being run in the portion occupied by MCD. Voltr. When it was purchased the said portion was in ellapsed condition and the structure was broken and by and by was getting collapsed. It is correct that the red line portion in the site plan was under tenancy of MCD and its school when it was purchased. Voltr. No school was being run there. It is correct that the landlord is due to bound to maintain in good condition so as to make it habitable and usable. When we took the possession of the suit property from the previouis order, a chokidar was there in MCD portion but later on he used to come of and on to sleep in the night. I do not know whether MCD was not running the school in the premises as the same was not in habitable and usable condition. I cannot say whether the MCD has requested the previous owner to get the tenanted premises repaired and usable but has not asked us at anytime. It is wrong to suggest that I am deposing falsely in connection with the repairs by MCD. Whenever the chokidar of MCD used to come we were told by him and we opened the lock of the main door. Voltr. He was also having a key but he used to tell us about his visit as our goods were lying there. The chokidar visited the premises in Sept. 1997 for the last time. It is wrong to suggest that the chokidar visited the premsies even after Sept. 1997. It is wrong to suggest that we have thrown the belongs of the chokidar on 16/04/98 and he lodged a complaint with police.
Q: The officials of the MCD after 16/4/98 had visited the site but you have not allowed them to enter into the premises?
A:the officials of MCD came to the premises only on 22/4/98 and not thereafter we have not allowed to enter into the premises.
It is wrong to suggest that we took the possession of the suit premises forcibly.
Q: Whether the MCD through any of its officials has handed over the possession of the premises to you or any other person after April 1997?
A: The possession of the suit premises was already with us and since Sept. 1997 nobody visited here it automatically came to us.
It is wrong to suggest that the possession was with us. It is further wrong to suggest that the possession automatically came to us after September 1997 as you have forcibly dispossessed the chokidar in April 1998 when police complaint was lodged by the MCD. It is further wrong to suggest that I am deposing falsely that I am save the property. We have issued a notice to MCD after purchase of property in question. It is wrong to suggest that no notice was issued to MCD. It is wrong to suggest that MCD has sent rent to Sh. Satish Chand Mathur by cheque. I do not know if any cheque was returned back for the rent for the period up to 31/3/98 by Sh. Satish Chand Mathur. (underlining added)
11. It is therefore clear that the respondents/plaintiffs claimed abandonment on account of non-user of the premises and alleged possession automatically coming to the respondents/plaintiffs, and which obviously cannot be the legal position or even the factual position for that matter. It is also seen that there was no dispute that the chowkidar of the appellant/defendant was being allowed entry till September, 1997, though of course this is only an oral statement and there is no documentary proof that the chowkidar of the appellant/defendant was not allowed entry till April, 1998.
12. The first appellate court has committed clear cut and gross illegality and perversity in taking non-user as equivalent to abandonment. Neither legally nor factually in the facts of the present case it can be held that non-user is abandonment. The factum that non-user results in possession of the suit/tenanted premises automatically coming to the respondents/plaintiffs/landlords is a completely illegal and perverse finding. Also, merely because the photographs showed dilapidated state of suit/tenanted premises, it could not have been held by the first appellate court that there is abandonment of the suit/tenanted premises. With respect to a government organization such as the appellant/defendant it should not and ought not to have been ordinarily and easily inferred that there was abandonment by it of any tenanted premises.
13. In my opinion there is a very good reason for holding that there is no abandonment of the suit/tenanted premises by the appellant/defendant in September, 1997 and this is because of the deposition of DW-3, one Sh. Sukhraj who was working as LDC in Education Department and who deposed that rent was in fact sent after September, 1997 and till 31.3.1998 to the earlier landlords. It is only after April, 1998 that the earlier landlords refused to receive the rent. This deposition of DW-3 Sh. Sukhraj is relevant because it shows that there could not have been abandonment by the appellant/defendant of the suit premises in September, 1997 inasmuch as rent was being paid till 31.3.1998, though of course to the earlier landlords. It is noted that the trial court in this regard has rightly observed that the alleged Letter of Attornment dated 1.5.1997 addressed by the earlier owners to the appellant/defendant was never proved to have been served upon the appellant/defendant by the earlier owner Sh. Satish Chand Mathur. Counsel for the respondents/plaintiffs could not point out any proof as to service of the Letter of Attornment dated 1.5.1997 by the earlier owner Sh. Satish Chand Mathur upon the appellant/defendant and the counsel for the respondents/plaintiffs only relied upon the factum of the service of this Letter of Attornment dated 1.5.1997 on the ground that the same was attached with the Legal Notice dated 27.1.1998/Ex.PW1/3 sent on behalf of the respondents/plaintiffs to the appellant/defendant. Therefore, the Letter of Attornment dated 1.5.1997 would have been received by the appellant/defendant by early February, 1998 and thus the first appellate court has committed a gross illegality and perversity in holding that the Letter of Attornment dated 1.5.1997 was served in May, 1997 itself to the the appellant/defendant and once that is so then payment of rent by the appellant/defendant till 31.3.1998 to the earlier owners was correct in the absence of any intimation till February, 1998 to the appellant/defendant that earlier owners had sold the property to the respondents/plaintiffs and payment of rent is clearly an act of assertion of tenancy rights and which completely negates and demolishes the case of the appellant/defendant abandoning the suit premises in September, 1997. Even assuming if rent was paid to the earlier owners inspite of allegedly receiving the letter of attornment in May, 1997, yet the very factum of paying rent, even wrongly, is a reason to hold that there was no abandonment. Further if the Letter of Attornment dated 1.5.1997 was served in May, 1997 to the appellant/defendant then why payment of rent was not demanded in writing by the respondents/plaintiffs from the appellant/defendant between May, 1997 to September, 1997 and during which period rent is found to have been paid to and received by the earlier owners and thus negating the case of any intention to abandon the suit/tenanted premises with the circumstances and condition as regards the suit/tenanted premises remaining dilapidated which continued as it is from May, 1997 to September, 1997 and thereafter till February, 1998 when the letter of attornment was received by the appellant/defendant. Thus there is no reason and a finding to be arrived at of abandonment in September, 1997. Though non-payment of rent would in law not be conclusive proof of abandonment of a tenanted premises, but in the facts of the present case, the very fact that the appellant/defendant paid rent till 31.3.1998 and the disputes only started in April, 1998 shows that no case of abandonment of the suit/tenanted premises can be said to be proved as against the appellant/defendant. I would at this stage refer to the examination-in-chief of DW-3 Sh. Sukhraj along with his cross-examination and which shows that the rent was in fact tendered by the appellant/defendant for the suit premises till 31.3.1998 noting that there is no cross-examination that rent was not tendered by the appellant/defendant to the earlier owners till 31.3.1998. The examination-in-chief and statement of DW-3 read as under:-
Examination-in-chief of DW-3
Affidavit of Sh. Sukhraj, working as L.D.C. in the Education Department, City Zone, Delhi.
I, the abovenamed deponent do hereby solemnly affirm and declare as under:-
1. That I am working as L.D.C. in Education Department, City Zone, Delhi. I have brought the original rent payment record of M.C. Primary School, Roshanpura, Delhi part of the suit premises bearing No. 2650, Roshanpura, Nai Sarak, New Delhi.
2. That the MCD paid the rent to the landlord upto 31.03.1998 by way of cheque and the same were received by Shri Satish Chand Mathur. After April, 1998 the rent sent by the MCD was not accepted and the cheque were returned. The copy of the rent register is collectively exhibited as Ex.DW5/1.
Statement of DW-3
DW-3 Sukhraj LDC Educational Department, Civic Zone Delhi.
I tender in evidence my affidavit which is Ex.DW-3/1. It bears my signatures at Point A and B.
xxx by Sh. Surender Raizada counsel for the plaintiff.
The headmaster of school used to pay rent to Sh. Satish Chand Mathur. After 1.4.1998, rent was being paid to Sh. Satish Chand Mathur. Lastly rent was sent to Satish Chand Mathur on 8.4.11. I have no knowledge if Sh. Satish Chand Mathur sold property to plaintiff on 17.4.97. No letter was sent by Sh. Satish Chand Mathur on 1.5.97. No notice has been received by defendant MCD from Satish Chand Mathur or his counsel dated 27.1.98. I have no knowledge if Amrit Mehta filed suit for recovery of rent against the defendant. It is correct that cheques sent by defendant for rent are being received back from Satish Chand Mathur. Lastly Satish Chand Mathur received rent on 31.3.1998 and rent was for period from 1.4.96 to 31.3.98. I have no knowledge if defendant had vacated premises in 1987. (underlining added)
14. Therefore, the impugned judgment of the first appellate court as regards finding on issue no.4 is completely illegal and perverse and is set aside thereby restoring the findings and conclusions on the issue no.4 of the trial court, and the suit to the extent the same sought relief of injunction against dispossession is liable to be and is accordingly dismissed.
15(i) I would like to note that at this stage itself an argument urged on behalf of the respondents/plaintiffs that admittedly respondents/plaintiffs are in possession of the suit premises since April, 1998 and today we are in September, 2016 and since no suit has been filed by the appellant/defendant for re-possession, this Court should not interfere with the judgment of the first appellate court.
(ii) This argument urged on behalf of the respondents/plaintiffs is completely perverse to say the least inasmuch as firstly a person who takes illegal possession cannot plead that he should be allowed to continue in illegal possession by granting the discretionary relief of injunction. Secondly, the argument urged is a self defeating argument because admittedly the respondents/plaintiffs were successful in obtaining a status quo from the trial court vide its Order dated 29.4.1998 and which order was confirmed during the pendency of the suit when the application under Order XXXIX Rules 1 and 2 CPC filed by the respondents/plaintiffs was allowed by the trial court vide its Order dated 15.12.1999. Once therefore the appellant/defendant was injuncted from dispossessing the respondents/plaintiffs, it is not understood as to how respondents/plaintiffs can claim that appellant/defendant has not sought to take back possession from the respondents/plaintiffs. Finally, I would also seek to refer to a judgment of the Supreme Court in the case of Premji Ratansey Shah and Others Vs. Union of India and Others (1994) 5 SCC 547 which holds that the discretionary relief of injunction should not be granted in favour of a trespasser noting that the respondents/plaintiffs would be trespassers because there is no abandonment of the suit/tenanted premises by the appellant/defendant and, consequently, the respondents/plaintiffs are found to have illegally put their locks on the suit/tenanted premises. The relevant observations of the Supreme Court are contained in paras 4 and 5 of the judgment in the case of Premji Ratansay Shah (supra) and the same read as under:-
4. It is seen that a suit as originally framed, they sought for a declaration that the award made in respect of the land was void, inoperative and does not bind the petitioners. But that relief had been given up. Thereby, the title of the land of the railways have not been questioned. With the award made under Section 30, the vendors of the petitioners got themselves bound by the above award under Section 12 of the Act. It is also seen that the two awards had become final and possession was delivered to the railways by the Land Acquisition officer on 24.2.1960. Thus Defendants 3 and 4 had no ghost of right, title or interest in the lands acquired from the original owner Maibai. The said sale is a void sale and the petitioners, therefore, cannot derive any interest under the agreement of sale to resist the possession of the lawful owner nor could the declaration sought for be given. The question, therefore, is whether an injunction can be issued against the true owner. Issuance of an order of injunction is absolutely a discretionary and equitable relief. In a given set of facts, injunction may be given to protect the possession of the owner or person in lawful possession. It is not mandatory that for mere asking such relief should be given. Injunction is a personal right under Section 41(j) of the Specific Relief Act, 1963; the plaintiff must have personal interest in the matter. The interest or right not shown to be in existence, cannot be protected by injunction.
5. It is equally settled law that injunction would not be issued against the true owner. Therefore, the courts below have rightly rejected the relief of declaration and injunction in favour of the petitioners who have no interest in the property. Even assuming that they had any possession, their possession is wholly unlawful possession of a trespasser and an injunction cannot be issued in favour of a trespasser or a person who gained unlawful possession, as against the owner, pretext of dispute of identity of the land should not be an excuse to claim injunction against true owner. (underlining added)
16. It is therefore clear that there is no legal and valid case of appellant/defendant having allegedly abandoned the suit/tenanted premises as is the case of the respondents/plaintiffs. In fact, there cannot be automatic abandonment, and as was the case of the respondents/plaintiffs in the cross- examination of PW-1. Illegal possession of the respondents/plaintiffs by putting their locks on the suit/tenanted premises is not equivalent to legal possession and much less on account of alleged abandonment by the appellant/defendant of the suit/tenanted premises.
17. Learned counsel for the respondents/plaintiffs argued the following points for the purpose of contending that the judgment of the first appellate court is correct and the judgment of the trial court was illegal and therefore rightly set aside by the first appellate court.
(i) The first argument was that since respondents/plaintiffs are in continuous possession since April, 1998 till date in September, 2016, hence this Court could not interfere. This is an argument which I have already dealt with hereinabove and rejected the same. The said relevant portion dealing with this aspect is not reproduced herein to avoid repetition and therefore this argument of the respondent/plaintiff is rejected.
(ii) The second argument urged on behalf of the respondents/plaintiffs was that the first appellate court has rightly arrived at a conclusion of abandonment by the appellant/defendant of the suit/tenanted premises and which argument also I have dealt and held the same against the respondents/plaintiffs in terms of the aforesaid discussion, and which is not reproduced herein to avoid repetition and therefore this argument of the respondents/plaintiffs is also rejected.
(iii) The third argument urged on behalf of the respondents/plaintiffs was that respondents/plaintiffs have clearly mentioned with respect to they being in possession pursuant to the abandonment of the suit/tenanted premises by the appellant/defendant in their Legal Notice dated 27.1.1998/Ex.PW1/3 and that since there was no reply by the appellant/defendant it should therefore be held by this Court that the appellant/defendant had notice of attornmnet to pay rent to the respondents/plaintiffs from January, 1998 and which shows that the appellant/defendant abandoned the suit/tenanted premises and thus the respondent/plaintiff are in rightful possession of the same.
Firstly in my opinion mere non-reply to the Legal Notice dated 27.1.1998 will not mean that it should be held that there is abandonment in the facts of the present case. Secondly, in this regard, this argument is like stating which came first whether the egg or the chicken inasmuch as mere non-reply to a legal notice will not automatically show valid entry and valid/legal possession of the respondents/plaintiffs of the suit/tenanted premises because there can be a valid and legal possession of the suit/tenanted premises only if firstly it is found that the appellant/defendant had in fact abandoned the suit/tenanted premises, but as stated above, there is no abandonment whatsoever by the appellant/defendant of the suit/tenanted premises more so because the rent of the suit/tenanted premises was continued to be tendered till March, 1998 to the erstwhile owners with the fact that even assuming there is non-payment of rent then mere non-payment of rent cannot be equated to abandonment of suit/tenanted premises. This argument urged on behalf of the respondents/plaintiffs is rejected.
(iv) The next argument urged on behalf of the respondents/plaintiffs was that the appellant/defendant has not proved the police report dated 16.4.1998, and once that is not so done, it cannot be held that the appellant/defendant was illegally dispossessed from the suit premises and that in fact it should be held that there is voluntary and conscious abandonment of the suit/tenanted premises by the appellant/defendant.
Even this argument urged on behalf of the respondents/plaintiffs is also without any basis because non proving of filing of police report would not mean that the appellant/defendant admits that it has voluntarily and consciously abandoned the suit/tenanted premises. As already discussed in detail above, in the facts of the present case it cannot be held that there was voluntary and conscious abandonment of the suit/tenanted premises by the appellant/defendant, and which discussion is not reproduced herein for the sake of brevity and to avoid repetition. Therefore, even if the police report lodged by the appellant/defendant that the respondents/plaintiffs had illegally locked the premises in April, 1998 is not proved would not in any manner help the respondents/plaintiffs in the facts of the present case to prove the factum of voluntary and conscious abandonment of the suit/tenanted premises by the appellant/defendant.
(v) The final argument urged on behalf of the respondents/plaintiffs is that since the case of the appellant/defendant was that its main chowkidar was Sh. Kapil Dev and since Sh. Kapil Dev was not brought into the witness box and who was a star witness, it should be held that the respondents/plaintiffs had legally obtained the suit premises and that the appellant/defendant was not illegally dispossessed.
Even this argument completely lacks substance for the various reasons. Firstly, the appellant/defendant has examined the substitute chowkidar Sh. Ram Swaroop and who has deposed that he used to work as a reliever chowkidar for Sh. Kapil Dev and that respondents/plaintiffs had threatened to illegally take possession of the suit premises. This affidavit of Sh. Ram Swaroop filed in examination-in-chief along with the cross-examination of this witness reads as under:-
Examination-in-chief of DW-2
Affidavit of Shri Ram Swaroop, Chowkidar of Municipal Corporation Primary School, Roshanpura, Delhi.
I, the abovementioned deponent do hereby solemnly affirm and declare as under:-
1. That I am working a Chowkidar in M.C. Primary School, Roshanpura, Delhi. In the year 1997 and 1998 I was working as Rest Releving Chowkidar in M.C. Primary School, Roshanpura, Delhi. I used to work as a Relever Chowkidar in place of Shri Kapil Dev (Chowkidar) whenever, Shri Kapil Dev was on the weakly rest in School Building of M.C. Primary School, Roshpura, Delhi in the suit premises No.2650, Roshanpura, New Delhi.
2. That Shri Kapil Dev Chowkidar use to take weakly rest on Tuesday and I used to work as a Relever Chowkidar on every Tuesday in the School Building, M.C. Primary School, Roshanpura, Delhi in the suit premises. In the year 1998 the plaintiff started threatening the forceful and illegal possession of the school building portion of the suit premises. The plaintiffs threatened Shri Kapil Dev Chowkidar to take forceful possession of the school building and in response to that Shri Kapil Dev made various representation to the school authorities as well as to the police.
3. That the school building portion of the suit premises bearing No.2650, Roshanpura, Nai Sarak, Delhi was in the possession of the school/MCD upto 29.04.1998 when the plaintiff put a lock on the main gate entry of the school building. Some of the goods and records of the school are still lying in the school building portion of the suit premises.
Statement of DW-2
DW-2 Sh. Ram Swaroop, Chowkidar, of Municipal Corporation Primary School Roshanpur, Delhi.
I tender my Affidavit in evidence which is Ex. as D-2 and bears my signature at point A and B
xxxx by Sh. K.L. Kohli Cl. for the pltff.
I have been working as a Chwlkidar in MCD since the year 1994. I have been relieving chowkidar upto 1999. I had to go to perform my duty as chowkidar for one day in each of the six school of the MCD allotted to me. My attendance was marked on Roshan pura in 1994. In Roshanpura my regular duty was given to me in 1994. Since the Roshanpura school was merged in Fatek Bar wala school the register of attendance has been kept in Fatak Bar wala school. I have not brought the said register today. I can produce the same.
xxxx deferred due to non availability of register and the submission that it can be produced. (underlining added)
Therefore, it is clear that merely because the main chowkidar Sh. Kapil Dev did not come would not mean that it is proved that there is voluntary and conscious abandonment of the suit premises by the appellant/defendant. In fact, as already discussed above, and for the sake of argument even if we take that any chowkidar has not been examined, though Sh. Ram Swaroop has been examined as DW-2, mere non-examination of chowkidar would not in any manner turn the issue with respect to claimed voluntary abandonment of the suit/tenanted premises by the appellant/defendant. It is not understood as to how a chowkidar of a large organization such as the appellant/NDMC can at all be responsible for bringing about abandonment of the tenancy rights in the suit/tenanted premises merely by not visiting the tenanted premises or being prevented from entering into the tenanted premises. At best evidence of chowkidar is with respect to possession, and it is already held above that respondents/plaintiffs have illegally locked the suit premises by putting their lock. Allegedly the non-coming of the chowkidar after April, 1998 will not entitle the respondents/plaintiffs to automatically presume abandonment of tenancy rights. This last argument urged on behalf of the respondents/plaintiffs is also therefore rejected.
18. In view of the aforesaid discussion the substantial question of law is answered in favour of the appellant/defendant and against the respondents/plaintiffs and consequently the impugned Judgment of the First Appellate Court dated 16.2.2012 is set aside and the Judgment of the Trial Court dated 31.10.2011 is restored by allowing this Regular Second Appeal. Parties are left to bear their own costs.