(1.) THE impugned order is dated 08.12.2011 which has endorsed the finding of the trial Judge dated 08.02.2011 whereby the application filed by the petitioners under Order XXXIX Rules 1 & 2 of the Code of Civil Procedure (hereinafter referred to as the 'Code') had been dismissed.
(2.) RECORD shows that the present suit is a suit for permanent and mandatory injunction which has been filed by the two plaintiffs against the MCD seeking a prayer that the MCD be restrained from dispossessing the petitioners or from removing their RUs from the two suit shops i.e. shops No.1074-75, Khoya Mandi, Bijli Road, Pili Kothi, Delhi. Contention is that petitioner No. 1 along with her husband was running the business of grocery and dry fruits from the aforenoted shops; after the death of her husband, she continued this work with her son; the respondent started creating hurdles; 'tehbazari' rights have been granted to the petitioners but for one reason or the other, the possession of the petitioners is disturbed by the MCD; they have made illegal demands upon the petitioners. Cause of action last arose in favour of the petitioners and against the respondent when on 11.12.2010 in the late evening, the officials of the MCD entered into the shop of the plaintiffs and sought to remove their articles; suit was accordingly filed.
(3.) THE second document relied upon by the learned counsel for the petitioner is a document which is a receipt (page 110 of the paper book); this shows that certain storage charges of Rs. 62/- and Rs.762/- have been taken by the MCD in the year 1987-1988; the contention of the petitioners is that this document also establishes a fact that the petitioners were in possession of the premises. Counter submission of the department is that these are store charges which have been levied upon the petitioners; the illegal display of the articles had been removed by the MCD and stored in the warehouse of the MCD for which the petitioners had to pay requisite fee which was in the sum of Rs.762/- and Rs.62/- respectively before they could get their articles released. This document also does not show the legal possession of the petitioners as has been urged by them.