Delhi District Court
Prem Lata Gupta vs Sho Neb Sarai & Ors on 6 June, 2016
IN THE COURT OF MS. POOJA TALWAR, ADDL. SENIOR CIVIL
JUDGE-CUM- JUDGE SMALL CAUSE COURT-CUM- GUARDIAN
JUDGE, DISTRICT: SOUTH, SAKET COURTS, NEW DELHI.
CS No. 139/2015
In the matter of :-
PREM LATA GUPTA .....PLAINTIFF
VERSUS
SHO NEB SARAI & ORS. ....DEFENDANTS
ORDER
1. Vide this order, I shall dispose of the application under Order XXXIX Rules 1 and 2 CPC filed on behalf of the plaintiffs.
2. Brief facts essential for disposal of the present application are that the defendant no.8 along with his Late wife Smt Sandhya Gupta are the joint owner of the property bearing No.E-5, Ground Floor, Jawahar Park, Daveli Road, Khanpur, New Delhi. Plaintiffs no.1 and 2 are children of defendant no.8 and his late wife Sandhya Gupta. Defendant no.8 owns grocery shop in Ramji Lal Subji Market, Sector-I, Saket, New Delhi. This shop is a Tehbazari Shop mutated in the name of defendant no.8 on a annual rent of Rs.1,980/-. In the intervening night of 17-18th June, 2015, mother of the plaintiffs died an unnatural death at the suit property and on complaint of maternal grand parents of the plaintiffs, defendant no.8 was arrested. He is still in the judicial custody.
3. On 22.06.2015, when the plaintiffs after performing last rites of their mother, reached their house they found a new lock at CS No. 139/2015 Page no. 1 of 7 the entrance gate upon confirming from the Investigation Officer that the said house is not sealed, the plaintiffs alongwith their relatives entered the house and realized that the whole house has been ransacked and many articles were missing. It was revealed on inquiry that on 19.06.2015, some relatives of father of the plaintiffs left away with two suitcases. The police reached the house of the plaintiff and put a new lock at the house. It was told to the plaintiffs that while going to jail, defendant no.8 had given the keys to defendants no.3 to
7. All the belongings of the plaintiffs are lying in the house. The grand mother of the plaintiffs have taken them to her house for a short period. They have never given up their residence and intend to live in the said house. Being the actual legal heirs of their late mother, they have become the co-owners with their fathers. The grocery shop of defendant no.8 is lying closed since 18.06.2015 and defendants no.3 to 7 are planing to take the possession of the said shop forcibly. The plaintiffs had been unjustifiably restrained by defendant no.1 from entering their own house. Hence, the present suit.
4. Defendant no.1 has filed his written statement in which it is stated that the Police has never sealed the property. The keys of the house was with Ajay Gupta the brother of the accused and he is unaware as to how the keys reached Ajay Gupta. The other allegations leveled against the officers of P. S. Neb Sarai have been categorically denied.
5. Written statements were filed on behalf of the other defendants. It is stated that the property belongs to Sudhir Gupta, father of the plaintiffs who is presently in jail. No relief qua the CS No. 139/2015 Page no. 2 of 7 property can be granted in the absence of father of the parties. The relief sought by the plaintiffs cannot be granted till a guardian is appointed by the Guardian Court for the minors. The other allegations leveled against them have been categorically denied.
6. During the pendency of the proceedings, Sh. Sudhir Gupta, father of the plaintiffs was impleaded as party. Written statement has been filed on his behalf. It is stated that he is the sole and absolute owner of the suit property as well as of the shop at Tehbazari. Property bearing no. E-5, Ground Floor, Jawahar Park, Daveli Road, Khanpur, New Delhi was purchased by the defendant in joint name of himself and his wife through his own funds out of love and affection. Though, late Sandhya Gupta had contributed nothing in the purchase of the said property. The maternal grand parents of the plaintiffs have filed the present suit in order to grab the property of the defendant. The plaintiffs as such have no right, title or interest in the property till the time defendant is alive. Defendant no.8 has handed over the keys of the house to Ajay Gupta so that the property cannot be grabbed by the maternal grand mother and uncle of the plaintiffs. It is prayed that suit be dismissed.
7. It is well settled law that a Court before passing an order of temporary injunction must take into consideration three relevant factors, i.e. prima facie case, balance of convenience and irreparable injury.
8. The application has been filed by the plaintiffs under Order XXXIX Rules 1 and 2 CPC seeking the following reliefs:
(i) ad-interim exparte injunction in favour of the CS No. 139/2015 Page no. 3 of 7 plaintiffs and against the defendant no.1 thereby directing the defendant no.1 to immediately remove the lock illegally put over suit property.
(ii) ad-interim exparte injunction in favour of the plaintiffs and against the defendants thereby restraining the defendants, their officials, agents, attorneys, associates, servants, etc from illegally and unjustifiable restraining the plaintiffs from entering and residing at their residence i.e. suit property.
(iii) ad-interim exparte injunction in favour of the plaintiffs and agaisnt the defendant no.2 thereby directing the defendant no.2 to ensure safe custody of the Shop No. 1, Ramji Lal Subzi Market, Sector-1, Mandir Marg, Saket, New Delhi with the plaintiffs.
(iv) ad-interim exparte injunction in favour of the plaintiffs and against the defendants no.3 to 10 thereby restraining the defendants no.3 to 10, their officials, agents attorneys, associates, servants, etc. from dispossessing the plaintiffs from the Shop No.1, Ramji Lal Subzi Market, Sector-1, Mandir Marg, Saket, New Delhi without due process of law.
9. I have heard the arguments on injunction application. The application is opposed by Ld. Counsel for defendants no.2 to 7 and also by Ld. Counsel for defendant no.8. It is argued on behalf of the defendant no.8 that since he is the sole and absolute owner of the property, hence, the keys should not be released to anyone in his absence. On the contrary, it is argued on behalf of the plaintiffs that plaintiffs have been born and brought up in that house till their CS No. 139/2015 Page no. 4 of 7 mother was alive. That house is the only place of abode available to the plaintiffs. They have memories of their mother in that house. The keys of the said house should be handed over to the plaintiffs through their guardian that is maternal grand mother to reside in the property.
10. It would be pertinent to mention here that earlier the keys of the house were handed over by defendant no.8 i.e. Sudhir Gupta who is brother of Ajay Gupta while he was arrested for the alleged murder of his wife. During the pendency of the instant case, my Ld. Predecessor in order to preserve the property, ordered the parties to place the keys of the house in the Court. Accordingly, the keys of the house are with nobody but with the Court.
11. It is undisputed that the property has been purchased by defendant no.2 Sudhir Gupta. It is not the case of the plaintiffs that the same has been purchased through funds of their late mother, hence, Sudhir Gupta is the owner of the property. It can also not been denied that plaintiffs being the children of both Sudhir Gupta and Sandhya Gupta are equally entitled to reside in the property. However, keeping in mind the peculiar facts and circumstances of the case and also the fact that a case against Sudhir Gupta is pending trial accordingly, the property needs to be conserved. It is alleged by Sudhir Gupta that his in-laws are hell bound to grab the property in his absence. He is apprehensive that in case the minors are permitted to reside in the property, all the members of the family of his late wife would enter the property and hence grab it. The plaintiffs are both minors admittedly no guardian has been appointed to look for the welfare of the children. The maternal grand mother CS No. 139/2015 Page no. 5 of 7 has only been appointed to represent the minors in the present case. She has not been appointed as a guardian by competent court.
12. The minors cannot be permitted to resides alone. They cannot be asked to reside with their grand mother when she has not been appointed a lawful guardian by a competent court. Foreseeing such facts that in case the plaintiffs are permitted to reside with their maternal grand mother, it would further aggravate the situation and invite further litigations. Since the defendant no.8 is facing trial on complaint of maternal grand parents and uncles of the plaintiffs definitely they are at loggerheads with each other. In case the plaintiffs are permitted to reside in the property with their maternal grand parents it would give rise to further litigations between the parties. It would be in the best interest of all the parties that the keys are kept in the court till final disposal of the case.
13. In view of the above observations, I am not inclined to grant prayer no.2 of the interim application. As far as the prayer no.1 is concerned, it has already become infructuous as the keys of the house are kept in the Court. Coming to prayer no.3 sought by plaintiffs as such a prayer cannot be granted as it would involve constant supervision of the Court and such like reliefs cannot be granted. As far as prayer no.4 is concerned defendant no.8 is the absolute owner of the shop and the plaintiffs are neither in actual nor constructive position of the shop till defendant no.8 is alive. No prima facie case has been made out in favour of the plaintiffs for which there interim application should be allowed. With these observations, interim application is disposed off.
CS No. 139/2015 Page no. 6 of 7
14. For the reasons above-stated, I am not inclined to allow the application of plaintiffs under Order XXXIX Rules 1 & 2 CPC and the same is dismissed.
15. Now, put up for admission-denial of documents and framing of issues on 22.07.2016.
(Pooja Talwar) JSCC-cum-ASCJ-cum-GJ South District, Saket Courts, New Delhi.
Announced in the open court today i.e 06th June, 2016.
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