Delhi District Court
Rohit Kumar Sharma vs Ram Prakash Tripathi on 16 February, 2012
: 1 :
IN THE COURT OF DR. NEERA BHARIHOKE : ADJ1 : SOUTH
DISTRICT SAKET COURT : NEW DLEHI
MCA no. 25/11
In the matter of :
Rohit Kumar Sharma
.... Appellant.
VERSUS
Ram Prakash Tripathi
.... Respondent.
16.02.2012
O R D E R :
1 Vide this order, I shall dispose of present appeal against the order dated 02.05.2011, dismissing the applications of the appellant filed under Order 39 Rule 1 and 2 for injunction and application of review. Brief facts of the case are that :
2 The appellant who is the son of respondent was running a cosmetics/STC/CD/Stationery shop under the name and style of M/s Tip Top Cosmetic at RZ328/1920, Tughlaqabad, New Delhi (hereinafter referred to as suit property) for the last 78 years. The said shop was also registered by Rohit Kumar Sharma Vs Ram Prakash Tripathi Contd....P...1 of 6 : 2 : the appellant with MCD under MDP 2021 mixed land use. The suit property was purchased by the grand father of the appellant. Appellant has submitted that however, the documents with regard to suit property are in possession of the respondent. The appellant had given all his earnings from the suit property to the respondent for the construction of three premises. The elder brother of the appellant namely Raj Kumar is residing at H. No. 26, Sriniwas Puri, New Delhi. When the respondent tried to dispose off the property H. No. 26, Sriniwas Puri, New Delhi, the appellant took the side of his elder brother Raj Kumar. The support given by the appellant to his elder brother Raj Kumar angered the respondent and thereafter the respondent started lodging various complaints against the appellant. The respondent put a lock on the shop of appellant over the lock of appellant on 29.08.2009 allegedly without any reason or right but to harass the appellant. Appellant has further submitted that the goods of the appellant worth Rs.2 lacs are lying in the shop of appellant and the appellant has left with no source of income after the lock was put thereon by the defendant. The appellant requested the respondent several times to open the lock but the respondent did not open the lock. The appellant filed the suit bearing No. 119/10 for mandatory injunction and for seeking directions to the defendant to remove the lock from the suit property.
3 The respondent filed WS and reply to the application u/o 39 Rohit Kumar Sharma Vs Ram Prakash Tripathi Contd....P...2 of 6 : 3 : Rules 1 & 2 CPC. The respondent submitted that he is the absolute owner of the suit property. Respondent further submitted that the appellant, his brother and their wives instead of taking care of respondent and his wife misbehaved and beat them. The respondent stated that he has already disowned the appellant, his brother and their wives vide public notice in newspaper Rashtriya Sahara. Respondent contended that it was the respondent who was running the said shop and the appellant was only assisting him.
4 Arguments were heard on injunction application and the same was dismissed vide order dated 21.05.2010.
5 Appellant filed a review application against the order dated 21.05.2010 as well as another application under Order 39 Rule 1 and 2 CPC. Both the applications were dismissed vide separate orders and are under challenge in the present appeal.
6 The review application has been dismissed by Ld. Trial Court on 02.05.2011. Appellant was not aware that his application for review was dismissed vide a separate order and one of the grounds for appeal was that Ld. Trial Court while deciding his application under Order 39 Rule 1and 2 had not made any observation with respect to review application and had Rohit Kumar Sharma Vs Ram Prakash Tripathi Contd....P...3 of 6 : 4 : dismissed the same without a speaking order. During the course of arguments, on perusal of the Trial Court record, it was revealed that review application was dismissed by a separate detailed speaking order. Under Order 47 Rule 7 CPC an order of the Court rejecting the application for review is not appealable and accordingly the appeal is not maintainable with respect to the order of Ld. Trial Court on the review application as the same was rejected.
7 Ld. Trial Court while dismissing an earlier injunction application of the appellant on 21.05.2010 had observed as:
"It is not in dispute that the defendant is the legal owner of the suit property. Therefore, the defendant has every right to use the suit property in any manner he likes. The plaintiff in the application u/o 39 Rules 1 & 2 CPC has prayed for mandatory injunction at interim stage which cannot be granted as grant of mandatory injunction at interim stage tantamounts to decreeing the suit in part without trial. The question whether plaintiff was running the shop in the name and style of M/s Tip Top Cosmetic at RZ328/1920, Tughlaqabad, New Delhi or he was just assisting the defendant is a question of trial which cannot be decided at this stage. The application is devoid of merit. Same is accordingly dismissed."
8. A perusal of the injunction application filed with the suit which was dismissed on 21.05.2010 and that of 05.07.2010 reveals that the prayer sought through the injunction application is the same. Ld. Trial Court had dismissed the prior injunction application by observing that:
"It is not in dispute that the defendant is the legal owner of the suit Rohit Kumar Sharma Vs Ram Prakash Tripathi Contd....P...4 of 6 : 5 : property. Therefore, the defendant has every right to use the suit property in any manner he likes. The plaintiff in the application u/o 39 Rules 1 & 2 CPC has prayed for mandatory injunction at interim stage which cannot be granted as grant of mandatory injunction at interim stage tantamounts to decreeing the suit in part without trial."
9 Appellant is aggrieved by this observation of Ld. Trial Court and argued that the observation of Ld. Trial Court that it is not in dispute that defendant is the owner of the suit property is wrong and is contrary to the submissions made in the plaint as well as material placed on record with the plaint. Appellant had sought a review of this portion of the order dated 21.05.2010. Ld. Trial Court has already dismissed the review application and in view of the fact that the same is not an appealable order, the said observation has achieved finality.
10 Ld. Trial Court while passing the impugned order dismissing the application of appellant under Order 39 Rule 1 and 2 CPC has observed as:
"Alongwith this suit, plaintiff has filed another application under Order 39 Rule 1 and 2 CPC which was dismissed by this court vide order dated 21.05.2010, wherein, it was observed that defendant is legal owner of property bearing no. RZ328/1920, Tuglakabad Extension, New Delhi. Once the Court has taken view that the defendant is the legal heir of the property, the court cannot direct the defendant to maintain status quo with respect to the same property. In other words, the plaintiff has failed to prove the case in his favour.
Accordingly, the application dated 05.07.2011 filed by the plaintiff under Order 39 Rule 1 and 2 of CPC is dismissed."
Rohit Kumar Sharma Vs Ram Prakash Tripathi Contd....P...5 of 6 : 6 : 11 Thus, the second injunction application of the appellant dated 05.07.2011 has been dismissed vide impugned order based on the finding of the Ld. Trial Court that defendant is the owner of suit property. Since the said finding has achieved finality, in view of the observations made earlier, appellant cannot reassail the said finding under the garb of appeal by filing another injunction application praying for the same relief which was already disallowed vide order Dated 21.05.2010. Appellants is trying to reassail the same finding by way of present appeal, which is not permissible. Accordingly, there is no merit in the present appeal. The present appeal is accordingly dismissed. TCR alongwith this order be sent to the Ld. Trial Court. Parties are directed to appear before the Ld. Trial Court on 22.02.2012. Dictated and announced in the open court on 16.02.2012 (Dr. Neera Bharihoke) ADJ1(South) Saket Courts Rohit Kumar Sharma Vs Ram Prakash Tripathi Contd....P...6 of 6