Vinod Kumar v. Delhi Wakf Board

V.B.GUPTA, J. bhatti

* HIGH COURT OF DELHI : NEW DELHI FAO No.318 of 2009 & CM No.14687/09 % Judgment reserved on: 20th October, 2009 Judgment delivered on: 21st October, 2009 Mr. Vinod Kumar, S/o Sh. Rajesh Kumar, R/o Shop No. 1116, Masjid Kazi Wali Main Bazar, Pahar Ganj, New Delhi ….Appellant Through: Mr. K. S. Bhati, Advocate Versus Delhi Wakf Board, Through its Chief Executive Officer, 5028, Darya Ganj, New Delhi. …Respondent Through: Nemo Coram: HON'BLE MR. JUSTICE V.B. GUPTA 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes V.B.Gupta, J. Appellant by way of present appeal has challenged order dated 14th July, 2009, passed by Additional District Judge, Delhi. Vide impugned order, application of appellant under Order 39 Rule 1 and 2 Code of Civil Procedure (for short as "Code") has been dismissed by trial court. 2. Appellant"s case is that, he is a lawful tenant and is in possession of Shop no. 1116 at Masjid Kazi Wali, Main Bazar, Pahar Ganj, New Delhi, where he is running business of readymade garments since 11th June, 1997. Appellant has taken possession of the said shop from Sh. Mahinder Kumar, who was a tenant in the suit property. Appellant filed an application on 12th February, 1998, for transfer of tenancy rights in his favour, but no decision has been taken as yet by respondent. 3. All of a sudden on 24th January, 2007, appellant received an eviction order dated 22nd January, 2007, under Section 54 of the Wakf Act, 1995 ( for short as "Act"), in which it was stated that appellant is an encroacher in the said suit property. Appellant made representation to respondent stating that he was a lawful tenant in the property. Respondent passed an order dated 24th February, 2007 asking him to vacate the said property within 15 days. 4. Respondent in its written statement took the plea that appellant is in illegal occupation of the suit property and possession of shop was taken by him without prior permission and consent of respondent. Appellant has no document to support his case and is simply an encroacher. 5. It is contended by learned counsel for appellant that respondent has passed the eviction order without giving sufficient opportunity to the appellant, while it is admitted fact that respondent accepted/received arrears of rent from appellant. 6. Other contention is that appellant is in possession since 1997 as sub-tenant of the respondent. In 1997, tenant Mahinder Kumar filed an application for transfer of tenancy and handed over the possession to appellant. Appellant has not been given due opportunity for consideration of his application for change of tenancy. Application of the appellant for change of tenancy, is pending with respondent. Without disposing of the same, eviction order has been passed, against the appellant. Under these circumstances, impugned order is liable to be set aside. 7. Principles for grant of temporary injunction are well settled. There has to be, (i) Prima facie case; (ii) Balance of convenience should be in favour of party seeking injunction and; (iii) Irreparable loss would be caused if injunction prayed for is not granted. 8. It is appellant"s own case, that he is a sub-tenant in the property. However, there is nothing on record to show that appellant took possession of shop in question from the previous tenant Mr. Mahinder Kumar, with prior permission and consent of the respondent. 9. Appellant has nowhere stated as to on what rate of rent, he has taken the shop in question and to whom he is paying the rent and upto what period rent has been paid. 10. Appellant himself has placed on record copy of eviction order dated 22nd January, 2007, passed under Section 54 of the Act. As per this eviction order, appellant is an unauthorized occupant of Wakf property, that is shop in question. A show cause notice was issued to him. Father of appellant appeared on several dates and was