SMT. KAMLESH Vs. SHRI PRITAM AND SHRI MADAN KUMAR
HIGH COURT OF DELHI
Shri Pritam And Shri Madan Kumar
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J.M.MALIK, J. -
(1.) THE case of the appellant/plaintiff is this. She is a tenant in respect of House No. A -215, First Floor, J.J. Colony, Wazir Pur, since 1981, under Shri Pritam, respondent No.1, who is her father -in -law at the rental of Rs.300/ - per month. The respondent No.1 never issued the rent receipts. In the year 1985, the rent was enhanced to Rs.400/ - per month and on 20.07.1995, it was further enhanced to Rs.600/ - per month. Madan Kumar, respondent No.2/defendant No.2 is appellant's husband. The relations between husband and wife went awry because respondent No.2 used to drink and quarrel with the appellant. The respondent No.1 had taken Rs.30,000/ - from the appellant to pay of the security amount deposited by another tenant and had grabbed Rs.50,000/ - from the appellant.
(2.) THE respondent No.1 filed a collusive suit bearing No.241/2001 for mandatory injunction and recovery of damages/ mesne profits praying therein to direct the respondent No.2 and his family members to handover the vacant physical possession of the suit premises. The said collusive suit was decreed against the respondent No.2 and his family members on 16.11.2002. In that suit, respondent No.2 was shown as a licensee. It is alleged that her husband took this situation lying down and did not contest the suit tooth and nail. The appellant, who is a tenant was not made a party to that suit. It is alleged that on 18.11.2002, the respondents No.1 and 2 came at about 2.00 PM and threatened the appellant to vacate the premises in dispute or else face dire consequences. Under these circumstances, the appellant filed the instant suit before the learned Trial Court wherein she prayed that the decree passed on 16.11.2002 be declared as null and void and decree for permanent injunction in favor of the appellant and against the respondents may be passed, thereby restraining them from dispossessing the appellant from the premises in dispute without due process of law.
(3.) DURING the pendency of this case, Pritam, respondent No.1 moved an application under Order VII Rule 11 read with Section 151 C.P.C. for dismissal of the suit. The said application was accepted by the learned Trial Court vide its order dated 23.11.2004. The first Appellate Court also dismissed the appeal filed by the appellant vide its order dated 06.09.2006. Aggrieved by that order, the instant second appeal has been filed.
I have heard the learned Counsel for the appellant. A four fold argument was advanced by her to assail the judgments of the lower Courts. Learned counsel for the appellant vehemently argued that her suit cannot be dismissed under Order VII Rule 11 C.P.C. She submitted that the appellant was not made a party to the first suit. She contended that she should have been made a party. It was also argued that the lower court erred in discussing the evidence while deciding the rights of the parties. The appellant should have been given an opportunity to produce evidence.;
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