RSA 174/2012
HIGH COURT OF DELHI
RSA No. 174/2012 & CM No. 18546/2012 4th March, 2014
KAILASH CHAND ......Appellant
Through: None.
VERSUS
DEFENCE SERVICE OFFICERS INSTITUTE ...... Respondent
Through: Mr. Pradeep K. Dubey, Adv.
CORAM:
HON’BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? VALMIKI J. MEHTA, J (ORAL)
1. This regular second appeal is filed against the concurrent judgments of the courts below; of the trial court dated 7.2.2012 and the first appellate court dated 29.9.2012; which have dismissed the suit filed by the appellantplaintiff for injunction with respect to the premises being shop no.4, Defence Services Officer’s Institute (DSOI) Complex/DSOI Staff Quarters, Delhi.
2. The case of the respondent-defendant was that the appellant was a licensee and a licence deed was executed between the parties. The licence deed has been admitted by the appellant and proved on record as Ex.PW- 1/D[3]. Once with open eyes appellant entered into a licence deed and which 2014:DHC:1179 allowed him to run the shop for a limited timing from 9.00 AM to 5.00 PM, appellant is only a licencee and not a tenant.
3. The trial court has exhaustively dealt with the issue and referred to the Division Bench judgment of this Court in the case of D.T.T.D.C Vs. D.R.Mehra 62 (1996) DLT 234 as also the Full Bench judgment of this Court in the case of Chandu Lal Vs. Municipal Corporation of Delhi AIR 1978 Delhi 174 which holds that the equitable relief of injunction cannot be granted to a licensee after his licence is terminated and in fact licensor is entitled to use reasonable force to remove the person who uses the licenced premises after termination of the licence. The relevant observation of the trial court are contained in paras 28 and 29 and which read as under:-
“28. The Hon’ble High Court of Delhi D.T.T.D.C Vs. D.R.Mehra 62 (1996) DLT 234 has observed that: “In our view injunction is an equitable relief and the court must see whether a person who is a trespasser can seek the helping hand of the court for protecting his unlawful possession as against the owner. A person who seeks equity must do equity. He must also come to court with clean hands. When he does these things there will be no occasion for him to seek an injunction inasmuch as the trespass would have automatically stood vacated. If he does not do these things, he cannot at the same time as for the helping hand of the court to protect his illegal possession.
“It is further observed that “it is argued for the appellant that this may be anamolous. It is said that the trespasser had a “right” to an injunction against the true owner, and this complementary to the duty of the owner not to evict the trespasser outside the judicial process. In our view, there is no anamaly. Each of these is based on a different legal principle. If the plaintiff wants the defendant to act in accordance with law he must frist abide by the law himself and vacate the property as one would expect a law abiding citizen to behave.”
29. While the Hon’ble High Court of Delhi in the case titled as Chandu Lal Vs. Municipal Corpn. Of Delhi AIR 1978 Delhi 174 has observed that:- “The petitioner being licensee with liberty to occupy and use the Kiosk for a period of 11 months in the first instance could not be said to be in legal possession of the premises, the legal possession all long remained with the corporation. On revocation of the licensee they ceased to enjoy the liberty to continue to occupy the Kiosk so as to drive the corporation to evict them in due course of law, nor can the petitioners possession be said to be “settled possession: as was sough to be made out.”
4. I may note that the Full Bench in the case of Chandu Lal (supra) has held that licensor can use reasonable force to evict licencee who refused to vacate the licenced premises.
5. A second appeal under Section 100 CPC is maintainable only if there arises a substantial question of law. The aforesaid facts do not show that any substantial question of law arises. There is no illegality or perversity in the concurrent judgments of the courts below.
6. The appeal is without any merit and is accordingly dismissed, leaving the parties to bear their own costs.
MARCH 04, 2014 VALMIKI J. MEHTA, J. ib