1. This is a petition under Article 227 of the Constitution of India filed by the plaintiff impugning the order of the trial court dated 21.5.2014 by which the application filed by the plaintiff under Section 11 of the Code of Civil Procedure, 1908 (CPC) read with Order 12 Rule 6 CPC has been dismissed.
2. The case of the plaintiff/petitioner was that the present suit for possession had to be decreed in view of the earlier judgment between the parties dated 3.9.2008. The earlier judgment was passed in favour of the 2014:DHC:4114 respondents/defendants in the present suit and in which suit it was held that respondents/defendants in the present suit (plaintiffs in the earlier suit) were entitled to a permanent injunction against dispossession on account of they being in settled possession of the suit property. The concerned court in that case held that though defendants in the present suit were not tenants in the suit property, simultaneously it was also held that the petitioners/defendants in that suit i.e the plaintiffs in the present case had failed to prove that the respondents/ defendants in the present suit (plaintiffs in the earlier suit), were only licencees and not tenants. The relevant paras of the judgment dated 3.9.2008 in the earlier suit is para 8 and which reads as under:-
“8. Heard counsel for the Plaintiff. Perused the complete record file. The testimony of PW1 and PW2 remains unrebutted and unchallenged. The plaintiff in order to support his contentions has placed on record the electricity bills. On careful perusal of the said bill it is revealed that the said bills are in the name of “Duggal Engineering &Co.”, whereas the name of the firm of the plaintiff is “M/s India Wood Products”. The documents in favour of the plaintiff are only certain challans and ST Form and Income Tax forms. The Defendant in the entire WS has not denied the possession of the Plaintiff, but has refuted the title/status of the Plaintiff on the ground that he is merely a licensee in the suit premises. Defendant has not lead any evidence to establish that the Plaintiff is merely a licensee and the said license has been terminated. Though the plaintiff has failed to establish that he is the tenant in the suit premises, however, the factum of possession is not denied by the Defendant. It is settled principle of law that if the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take the recourse to law. The law will
come to the aid of a person in peaceful and settled possession by injucting even a rightful owner from using force. Admittedly, Plaintiff is in possession of the suit premises since 1987. Thus it can be inferred that he is in settled possession of the suit property, which needs to be protected. In the given facts and circumstances, the defendant is hereby permanently restrained not to dispossess the Plaintiff from the shop measuring 45’X16’ situated on the ground floor (back side) of property bearing no. A-14, W.H.S. Timber Market, Kirti Nagar, New Delhi shown red in the site plan except without due process of law. Decree sheet be prepared accordingly. No order as to costs. File be consigned to record room.” (underlining added)
3. The trial court by the impugned judgment dated 21.5.2014 has referred to the aforesaid reasoning in para 8 of the earlier judgment dated 3.9.2008, and has accordingly dismissed the subject application by observing as under:-
“11. By way of the instant application, the plaintiff wants the court to act against the defendants on the basis of the judgment dated 03.09.2008 and to pass a decree for recovery of possession in favour of the plaintiff. A perusal of the judgment dated 03.09.2008 reveals that the Ld. Judge had framed an issue to the effect that “whether the plaintiff (Sh. Babu Khan) is a tenant in respect of the suit property, if so, its effect?” In the findings given, it has been observed that the electricity bills relied upon by the plaintiff Sh. Babu Khan were in the name of “Duggal Engineering & Company” while the name of the firm of Sh. Babu Khan was “M/s India Wood Products”. It has been observed that the documents in favour of Sh. Babu Khan are only certain challans and S.T.Forms and income tax forms. While observing that Sh. Madan Lal had not disputed the possession of Sh. Babu Khan, the court on the basis of the said documents had not held that Sh. Babu Khan to be a tenant. It was held that Sh. Babu Khan had
failed to establish that he was a tenant in the suit premises. This fact can be considered as absolute finding but for one reason. In the said suit another issue was framed namely “whether the plaintiff is a licensee in respect of the suit property, if so, its effect?” The Ld. Court has observed that Sh. Madan Lal has not led any evidence to establish that Sh. Babu Khan is merely a licensee and the said licence has been terminated. If the said judgment is to be read against the defendants, the same is equally be read against the present plaintiff and the selective reading of the judgment dated 03.09.2008 cannot be permitted. In the opinion of the court, the said judgment dated 03.09.2008 cannot either operates as res judicata or can be said to be forming the basis for passing a judgment on admission against the defendants. Present application is not maintainable. The same is dismissed.” (underlining added)
4. I do not find any illegality in the impugned order inasmuch as the judgment in the earlier suit passed on 3.9.2008 is very clear that the respondents/defendants in the present suit have not been held to be licensees of the suit property, and therefore, there is no question of applicability of Section 11 CPC for holding the judgment dated 3.9.2008 as res judicata that the respondents/defendants in the present suit are not tenants. Dismissed.
AUGUST 25, 2014 VALMIKI J. MEHTA, J. ib