1. Exemption allowed, subject to all just exceptions.
2. Application stands disposed of. RSA 55/2017
1. This Regular Second Appeal under Section 100 of the Code of Civil
Procedure, 1908 has been preferred by the appellant against the concurrent
finding of the Courts below i.e. judgment dated 08th December, 2016 passed
by the First Appellate Court and dated 26th May, 2016 passed by the learned
Trial Court declaring the status of the appellant to be that of a licensee in the
suit property and that the licence stood terminated by the respondent. Vide
impugned judgment, the appellant was also directed to pay mesne
profit/damages at the rate of Rs.1000/- per month from the date of filing the
suit till its realization with interest @ 6% per annum.
2. In brief, the facts are that Civil Suit No.95/2016 was filed by the
respondent/plaintiff - Delhi Pinjra Pole Society pleading that the
appellant/defendant joined the services of the Society on 1st February, 1996
as Sweeper (Safai Karamchari). As an employee of the society, he was
allotted one room in Premises No.9271, Goshala, Kishan Ganj, Delhi to be
used as licensee without charging any amount and no licence deed was
executed. It was further pleaded that on 24th August, 2011, the
appellant/defendant left the service of respondent/plaintiff Society by
tendering his resignation letter. At that time, all his statutory dues have been
paid by the respondent/plaintiff Society and his licence to use the said room
was also terminated.
3. Despite termination of the licence, the licensee failed to vacate the
premises, hence a legal notice dated 18th September, 2013 was served upon
him to vacate the room. On his failure to vacate the room even after service
of legal notice, the respondent/plaintiff filed the suit praying for decree of
mandatory injunction thereby directing the appellant/defendant to remove
himself alongwith his family members from the suit property and also for
decree of permanent injunction thereby restraining the appellant/defendant
from creating any third party interest in the suit property and for recovery of
mesne profits.
4. The suit was contested by the appellant/defendant denying the averments made in the plaint and claiming himself to be tenant in the suit property and paying rent @ Rs.75/- per month.
5. On the basis of pleadings of the parties, following issues were settled by the learned Trial Court:-
''(1) Whether the defendant is tenant of the plaintiff? OPD.
(2) Whether the plaintiff is entitled to mandatory injunction
against the defendant for removal of defendant from the suit
property? OPP
(3) Whether the plaintiff is entitled for permanent injunction
against the defendant as prayed for? OPP.
(4) Whether the plaintiff is entitled for mesne profit from the
defendant @ Rs.4000/- per month with interest as claimed? OPP.
(5) Other relief, if any.''
6. Vide impugned judgment, the learned Trial Court in its finding on
Issue No.1 held the status of the appellant/defendant was not that of a tenant
but that of a licensee. It was also held that licence was duly terminated. The
learned Trial Court also decided Issues No.2 and 3 in favour of the
respondent/plaintiff and against the appellant/defendant. While disposing of
Issue No.5, the following relief was granted to the respondent/plaintiff:-
''Issue No.5
Relief.
21.In view of above discussions, defendant is directed to remove
himself from the suit premises within 60 days from today. He is also
restrained from creating any third party interest in the suit property
and is directed to pay mesne profits/damages at the rate of Rs.1,000/-
per month to the plaintiff from the date of filing of the suit till
realization with interest of 6% per annum.''
7. The First Appellate Court concurred with the findings of the learned Trial Court for the reasons recorded in para 16 and 17 of the judgment dated 08th December, 2016 which are extracted as under:-
''16. In the facts of the present case PW-1 Sh.Prakash Chand
Barathi has specifically testified that defendant was provided one
room in the property of the society for limited use as licencee. PW-1
further says that since defendant started misconducting and
committing illegal activities, therefore defendant left the services of
plaintiff society by tendering his resignation letter dt. 24.8.2011 which
is Ex.PW1/2. PW-1 has further testified that after termination of
licence defendant was asked several times to leave the premises but
defendant did not pay heed to it. Now if we consider the evidence
DW-1/appellant Subhash Chand, he though has testified in
examination in chief that he is a bonafide tenant in the premises,
however, appellant has admitted in his cross examination that he left
the job of Safai Kramchari with plaintiff society on 24.8.2011. DW1
admits that he has not placed on record any document to show that he
became tenant in the premises with rent @ Rs.10/- per month and said
sent was increased to Rs.75/- per month.
17.In the entire evidence of DW-1, no document has been placed on
record which establish tenancy in favour of appellant. Mere claim of
being tenant in the premises in question was not sufficient, there
should have been some evidence, documentary or circumstantial to
establish that there was intention between the parties to give exclusive
possession to defendant as tenant or to establish that it was not mere
licence. If we further consider the evidence as a whole and
documents on record, I find that trial Court was correct in its
conclusion that defendant/appellant herein has failed to establish
himself as tenant in the premises in question. In this context, it is
important to note that premises in question was given to defendant
only on account of being in services of plaintiff society, therefore,
appellant in his resignation letter Ex.PW1/2 has noted that he has
committed mistake by committing theft and therefore tendered his
resignation. In the resignation PW1/2 itself he has further mentioned
that he will vacate the premises. This document is not disputed at all
in the trial.''
8. During the course of hearing of this appeal, noting the concurrent
finding of facts by the Courts below that the status of the appellant/defendant
was that of a licensee which stood terminated, learned counsel for the
appellant was requested to argue on the substantial question of law involved
in this appeal. Attention of learned counsel for the appellant was also drawn
to the evidence adduced before the learned Trial Court which has also been
appreciated not only by the learned Trial Court but also by the First
Appellate Court before arriving at the conclusion that status of the
appellant/defendant in the suit property was not that of tenant but of a
licensee. It was further held that the licence stood terminated and the
respondent/plaintiff is entitled to the decree as prayed.
9. Mr.Pramod Kumar, Advocate, on instructions from the appellant who is present in person, submits that the appellant does not want to press this appeal but requests that two months time may be given to him to vacate the suit property. It has also been submitted that in view of the economic status of the appellant that he was working as a Sweeper with Delhi Pinjra Pole Society, the financial burden imposed on him by awarding damages at the rate of Rs.1000/- per month from the date of filing the suit till its realization with interest @ 6% per annum, may be waived.
10. Learned counsel for the respondent, on instructions, submits that the respondent has no objection if some reasonable time is granted by the Court to the appellant to vacate the suit property and if the appellant vacates the suit property within the time granted by the Court, the respondent/plaintiff will not seek execution in respect of the damages awarded in favour of the respondent/plaintiff.
11. Learned counsel for the appellant seeks passover to place on record the affidavit of the appellant to the above effect.
12. Let matter be taken up after some time.
