CR No.1864 of 2013 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH (237) CR No.1864 of 2013 (O&M) Date of decision:17.01.2014 Vidya Mahankali Rao ......Petitioner Versus Sandeep Dutt and another .......Respondents CORAM: HON'BLE MRS.JUSTICE SABINA Present: Mr.Sanjeev Sahay, Advocate for the petitioner.
Mr.B.R.Mahajan, Advocate for respondent No.1.
None for respondent No.2.
**** SABINA, J.
Petitioner has filed this petition challenging the order dated 17.11.2012 whereby application moved by him under Order 12, Rule 6 of the Code of Civil Procedure, 1908, was dismissed.
Learned counsel for the petitioner has vehemently argued that respondents had been given the possession of the property as caretaker.
Suit for mandatory injunction had been filed by the petitioner that the defendants be got removed from the suit property and decree of permanent injunction has also been sought restraining the defendants from removing any article from the suit Sandeep Sethi 2014.01.23 10:29 I attest to the accuracy and integrity of this document CR No.1864 of 2013 (O&M) -2- property.
Relief of damages/mesne profits has also been claimed Learned counsel has submitted that since the possession of the respondents over the suit property was admittedly permissive possession, the suit of the petitioner was liable to be decreed on the basis of admissions.
In support of his case, learned counsel has placed reliance on Maria Margadia Sequeria Fernandes & others versus Erasmo Jack De Sequeria (D) SC (2012) wherein it was held as under:- "Principles of law which emerge in this case are crystallized as under:- 1.
No one acquires titled to the property if he or she was allowed to stay in the premises gratuitously.
Even by long possession of years or decades such person would not acquire any right or interest in the said property.
2.
Caretaker, watchman or servant can never acquire interest in the property irrespective of his long possession.
The caretaker or servant has to give possession forthwith on demand.
3.
The Courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some time either as a friend, relative, caretaker or as a servant.
4.
The protection of the Court can only be granted or extended to the person who has valid, subsisting rent Sandeep Sethi 2014.01.23 10:29 I attest to the accuracy and integrity of this document CR No.1864 of 2013 (O&M) -3- agreement, lease agreement or license agreement in his favour.
5.
The caretaker or agent holds property of the principal only on behalf of the principal.
He acquires no right or interest whatsoever for himself in such property irrespective of his long stay or possession."
Learned counsel has also relied on A.
Shanmugam versus Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam AIR2012SC2010wherein it was held as under:- “Watchman, caretaker or a servant employed to look after the property can never acquire interest in the property irrespective of his long possession.
The watchman, caretaker or a servant is under an obligation to hand over the possession forthwith on demand.
According to the principles of justice, equity and good conscience, Courts are not justified in protecting the possession of a watchman, caretaker or servant who was only allowed to live into the premises to look after the same.”
.
In the present case, plaintiff has filed a suit for mandatory as well as permanent injunction against the respondents.
During the pendency of the suit, an application was moved by the petitioner for disposal of the suit on the basis of admission.
Sandeep Sethi 2014.01.23 10:29 I attest to the accuracy and integrity of this document CR No.1864 of 2013 (O&M) -4- Learned trial court while dismissing the application has observed as under:- “In the present case counsel for the plaintiff has sought a decree of mandatory injunction on the ground of admission in para No.2 of the suit wherein the plaintiff Sandeep Dutt has alleged himself to be the caretaker of the property in question.
In the present case the plaintiff has no where stated that the plaintiff was her licensee and it was only on the ground of the admission made by the defendants in para 2 wherein the defendant stated that he was occupying the property as a licensee.
This admission was made by the defendant in another suit titled as Sandeep Dutt versus Vidya M.K.Rao.
It is pertinent to mention here that the written statement is not to be read in parts but as a whole.
In this context the defendant's counsel submitted that the written statement of the defendants must be read as a whole and not as a single statement and as such any particular statement made by the defendant in some other case whereby he admitted to be in occupancy of the alleged property as a licensee cannot be made a ground and sole criteria in decreeing the suit under Order 12 Rule 6 CPC.
All the averments are a matter of evidence which can be taken up and decided at a later stage.
Therefore, keeping in view these facts the application under Sandeep Sethi 2014.01.23 10:29 I attest to the accuracy and integrity of this document CR No.1864 of 2013 (O&M) -5- Order 12 Rule 6 CPC is hereby dismissed.
The parties are at liberty to take their pleas at the time of evidence.”
.
The reasons given by the trial court while dismissing the application under Order 12 Rule 6 CPC are sound reasons.
There is no quarrel with the proposition of law settled vide the judgments relied upon by the learned counsel for the petitioner, but the same fail to advance the case of the petitioner.
Preliminary Objection No.6 of the written statement filed by the defendant reads as under:- “That the plaintiff has not come to the Hon'ble Court with clean hands and has suppressed true and material facts from this Hon'ble Court.
The true facts are that the plaintiff had been acquainted with defendants for the last several yeaRs.Defendant is well versed with manufacture of furniture and interior decorations.
Defendant has got considerable experience in purchase and marketing of paintings.
Plaintiff had participated with defendant in various exhibitions in different countries.
That plaintiff had purchased residential apartment bearing No.D- 091, Belvedere Park, DLF City Phase III, Gurgaon and had conveyed to defendant no.1 that the developer had offered possession of the aforesaid apartment.
At the time of delivery of possession the apartment was in bare shell condition.
The plaintiff requested the defendant No.1 in the Sandeep Sethi 2014.01.23 10:29 I attest to the accuracy and integrity of this document CR No.1864 of 2013 (O&M) -6- year 2007 to occupy the apartment and to regularly pay the maintenance agency the maintenance charges, electricity and water consumption charges etc.Plaintiffs had conveyed to defendant no.1 that plaintiff being permanent resident of United States of America, was not in a position to look after and manage the aforesaid residential apartment.
The plaintiff had requested defendant no.1 to install air conditioners and electrical & sanitary fittings in the aforesaid apartment.
The plaintiff had further called upon defendant No.1 to place furniture items in the apartment on assurances that amount incurred by defendant no.1 in furnishing the apartment would be reimbursed by plaintiff.
Thus, the defendant no.1 entered into permissive possession of the property in question and is licencee under the plaintiff.
The licence of defendant No.1 has never been recovered till date.
It is further submitted that the plaintiff threatened to interfere in peaceful possession of the defendant no.1 and to take forcible possession thereof and being aggrieved by the illegal conduct of the plaintiff, the defendant no.1 filed a suit titled Sandeep Dut versus Vidya Mahalkali Rao in which the Hon'ble Court was pleased enough to allow the injunction application of the present defendant No.1.
The suit is still pending and till date to the knowledge of Sandeep Sethi 2014.01.23 10:29 I attest to the accuracy and integrity of this document CR No.1864 of 2013 (O&M) -7- defendant no.1, no appeal whatsoever has been filed by the present plaintiff against the said order.
It is further submitted that defendant No.1 had incurred extremely substantial expenditure in undertaking furnishing the aforesaid apartment.
Defendant No.1 had repeatedly urged plaintiff to make payment of the outstanding amount.
Plaintiff had put off the repeated requests made by defendant no.1 on one pretext or the other.
Plaintiff had come to India during the fiRs.week of February, 2009.
For discharge of her liability, the plaintiff issued several cheques in favour of defendant No.1 which cheques have also been dishonoured and complaint under section 138 of N.I.Act are also pending against the plaintiff.
Thus, the defendant no.1 is in lawful possession of the property in question and the present suit has been filed on false and mala fide grounds.”
.
A perusal of preliminary objection No.6 of the written statement reveals that the disputed questions of fact are involved.
It cannot be said that it was a case which could be decided on the basis of admissions made by the defendants.
Hence, no ground for interference is made out.
Dismissed.
(SABINA) JUDGE January 17, 2014.
sandeep sethi Sandeep Sethi 2014.01.23 10:29 I attest to the accuracy and integrity of this document