Delhi District Court
Sh. Inder Kumar vs Sh. Ramchander on 29 February, 2012
IN THE COURT OF MS. NEHA, CIVIL JUDGE03(SOUTH),
SAKET COURTS COMPLEX, NEW DELHI.
Civil Suit No.24/10
Unique ID No.02406C0475822010
IN THE MATTER OF:
Sh. Inder Kumar,
S/o Sh. Cheddi Lal
R/o House No.472, 4th Floor,
Sunlight Colony2,
Ashram, New Delhi. ......Plaintiff
Versus
Sh. Ramchander
S/o Sh. Dukhi ram
R/o House No.3A,
Mathura Road, Bhogal,
New Delhi
Also at:
House No.472, 4th Floor,
Sunlight Colony2,
Ashram, New Delhi. .....Defendant
Inder Kumar vs. Ram Chander
C.S. No.24/10 Page 1 of 20
Counsels : Sh. Deepak Saini, Ld. Counsel for plaintiff
Sh. Gajender M. Chand, Ld. Counsel for defendant.
DATE OF INSTITUTION : 22.06.2009
DATE OF RESERVING THE ORDER : 24.02.2012
DATE OF DECISION : 29.02.2012
JUDGMENT
(Suit for Permanent Injunction)
1. Vide this judgment I shall decide the suit of the plaintiff for permanent injunction.
2. The facts in brief as per the plaint are that the plaintiff is a law abiding and peace loving citizen residing at H. No.472, 4th Floor, Sunlight Colony2, Ashram, New Delhi, with his family members. The defendant is the legal owner of the property bearing no. H. No. 472, 4th Floor, Sunlight Colony2, Ashram, New Delhi. The plaintiff and the defendant entered into an agreement to sell in respect of above mentioned property on 08.01.1008 in the presence of witness Sh. Sangam Lal S/o Sh. Shri Chhedi Lal R/o B106, Jaitpur, New Delhi110044 for a total Consideration of Rs.2,70,000/ (Rupees Two Lakhs Seventy Thousand Only).
Inder Kumar vs. Ram Chander C.S. No.24/10 Page 2 of 20
3. The plaintiff has paid a sum of Rs.60,000/ in cash as earnest money which was duly acknowledged by the defendant. The defendant has delivered the possession of one room of the suit property and it was agreed that the complete possession of the entire property will be delivered at the time of payment of balance amount.
4. It was also agreed between the parties that the plaintiff will make payment of Rs.1.00 lakh to the defendant on 14.02.2008 as part payment and remaining balance shall be paid later on. The plaintiff visited the defendant on 14.02.2008 to make part payment of Rs.1.00 lakh along with Sh. Sangam Lal. The defendant refused to accept the same on the plea that the defendant will proceed to his native place in the second week of September 2008 and only then he will collect the entire balance consideration of Rs.2,10,000/.
5. On 08.09.2008, the plaintiff again visited the defendant to make balance payment of Rs.2,10,000/ along with Sh. Sangam Lal. The defendant refused to accept the same on one or the other pretext. The plaintiff sent legal notice dated 09.09.2008 through registered AD for specific performance of the agreement dated 08.01.2008. The plaintiff visited the defendant to make balance payment of consideration amount several times. But the defendant refused to accept the balance Inder Kumar vs. Ram Chander C.S. No.24/10 Page 3 of 20 consideration on one or the other pretext.
6. On 10.06.2009 the defendant said to the plaintiff that the defendant does not want to sell the above mentioned property and asked the plaintiff to vacate the suit premises. The defendant is trying to sell out the suit property to some third party on higher amount that it was agreed between the parties in the agreement to sell dated 08.01.2008.
7. The defendant is regularly extending threats to the plaintiff and his family members to forcibly get the suit property vacated with the help of antisocial elements. The plaintiff is the bonafide purchaser of the suit property and he has paid earnest money and is also ready to pay the balance payment of the consideration amount. It is alleged by the plaintiff that the act of the defendant is against law and the plaintiff is left with no other legal remedy except to file the present suit.
8. Plaintiff has filed present suit seeking following reliefs:
(i) Pass a decree for permanent injunction in favour of the plaintiff and against the defendant thereby restraining the defendant to sell the suit property to any other person.
(ii) Pass a decree of permanent injunction in favour of the Inder Kumar vs. Ram Chander C.S. No.24/10 Page 4 of 20 plaintiff and against the defendant thereby restraining the defendant, his relatives, servants, attorney, associates, agents, assignees and whosoever on his behalf from causing visiting the suit property and creating hindrance/obstruction, in the peaceful life of the plaintiff and his family member and from extending threat to the plaintiff and his family members in any manner.
(iii) Pass a decree for permanent injunction in favour of the plaintiff and against the defendant thereby restraining the defendant, his relatives, servants, attorney, associates, agents, assignees and whosoever on his behalf from causing forcefully eviction of the plaintiff and his family members from the suit property in any illegal manner.
9. The defendant has filed written statement taking preliminary objection that the suit of the plaintiff is not maintainable in the present form. It is also submitted that the suit does not disclose any cause of action and hence the suit is liable to be dismissed. The plaintiff has not come to court with clean hands and has suppressed material facts. The suit of the plaintiff is also barred under Section 41(h) of the Inder Kumar vs. Ram Chander C.S. No.24/10 Page 5 of 20 Specific Relief Act.
10. In reply on merits, the defendant has admitted that the plaintiff is residing at the given address. It is also admitted by the defendant that he is legal owner of property no.472, 4th Floor, Sunlight Colony II, Ashram, New Delhi. Further the defendant denied the allegations of the plaintiff in the plaint. It is submitted that the plaintiff has played fraud upon the defendant as by paying a meager amount of Rs. 60,000/, the plaintiff wants to grab the property of the defendant and has in fact obtained possession of one room on the fourth floor illegally and unauthorizedly.
11. It is submitted that it was agreed between the parties that in case the plaintiff failed to make payment of balance consideration amount the defendant will be at liberty to deduct the damages at the rate of Rs. 2,000/ per month from the earnest money and thereafter the plaintiff shall vacate the same. The defendant trusted the statement of the plaintiff and allowed him to stay in one room as he has got a sum of Rs.60,000/ as security and also looking at cordial relation between the parties. It is submitted that the plaintiff in order to grab the suit property has inserted clauses in the alleged agreement dated 08.01.2008 and the signature of the defendant has been obtained Inder Kumar vs. Ram Chander C.S. No.24/10 Page 6 of 20 fraudulently taking undue advantage of illiteracy of the defendant.
12. The plaintiff never paid the balance amount nor was ever willing or ready to pay the same. When the defendant asked the plaintiff to vacate the premises as the plaintiff failed to pay the balance consideration amount within time, the plaintiff started threating the defendant to implicate him in false criminal case.
13. It is further submitted that it was agreed that the plaintiff shall pay the entire amount on or before 14.02.2008 otherwise the earnest money paid by the plaintiff shall be forfeited and the plaintiff shall pay a sum of Rs.2,000/ per month to the defendant if he required to retain the possession of the suit property. The plaintiff did not make the payment as required within time and his earnest money had been forfeited.
14. When the defendant asked the plaintiff to pay damages at the rate of Rs.2,000/ per month for using the said room, the plaintiff became infuriated and started abusing and threatening the defendant of dire consequences. The defendant was forced to lodge a complaint against the illegal acts of the plaintiff with the police but no action was taken.
15. From the pleading of the parties following issues were framed Inder Kumar vs. Ram Chander C.S. No.24/10 Page 7 of 20 (1) Whether the suit is not maintainable in the present form? OPD.
(2) Whether the plaintiff has not approached to this court with clean hands?OPD (3) Whether the defendant is creating hindrance/obstruction in the peaceful enjoyment of the suit property by the plaintiff?OPP (4) Whether the defendant is threatening to dispossess the plaintiff without following due process of law from the suit property?OPP.
(5) Whether the plaintiff is entitled for any relief, if so, what relief?
16. The plaintiff has examined himself as PW1 and his brother Sh. Sangam Lal S/o Sh. Chhedi Lal as PW2. PW1 has tendered his evidence by way of affidavit Ex.PW1/1 and has relied upon following documents:
(i) The agreement dated 08.01.2008 is Ex.PW1/A
(ii) Legal notice dated 09.09.2008 is Ex.PW1/B.
(iii) Site plan is Ex.PW1/D. PW2 has tendered his evidence by way of affidavit Ex.PW2/A. Inder Kumar vs. Ram Chander C.S. No.24/10 Page 8 of 20
17. On the other hand, defendant has examined himself as only witness DW1 and tendered his evidence by way of affidavit Ex. DW1/1.
18. I have perused the material on record and carefully considered the submissions of the parties.
19. Issue no .1 Whether the suit is not maintainable in the present form?
20. The onus to prove this issue was on the defendant. The defendant has not stated in his affidavit as to how the suit of the plaintiff is not maintainable in present form. However Ld. Counsel for the defendant has argued that the simplicitor suit of injunction is not maintainable and the appropriate relief for the plaintiff was to file a suit for specific performance of the agreement dated 08.01.2008.
21. Per contra Ld. Counsel for the plaintiff has argued that the defendant has threatened to sell the suit property to some third party and has also threatened to dispossess the plaintiff from the suit property forcefully. Therefore the suit of the plaintiff for permanent injunction is maintainable.
22. I have considered the submissions of Ld. Counsels and have Inder Kumar vs. Ram Chander C.S. No.24/10 Page 9 of 20 perused the material on record. The plaintiff has filed present suit for injunction with the averments that the defendant has entered into an agreement to sell with the plaintiff and in pursuance thereof the defendant had handed over possession of one room on the fourth floor to the plaintiff. Thereafter when the plaintiff approached the defendant to make payment of balance consideration as per the agreement, the defendant avoided to receive payment and threatened the plaintiff that he would not sell the property to the plaintiff and asked the plaintiff to vacate the suit property. The plaintiff sent legal notice to the defendant for specific performance of the agreement dated 08.01.2008. Relevant para of the legal notice is reproduced:
"7. That my client is ready to make you the balance payment of Rs.2,10,000/ any any point of time. I therefore call upon you to fulfill the conditions mentioned in the agreement dt. 08.01.2008 to accept the balance payment and to execute proper documents in favour of my client in respect of the property in question, within a period of 15 days from the date of receipt of this legal notice, failing which my client shall be constrained Inder Kumar vs. Ram Chander C.S. No.24/10 Page 10 of 20 to take the shelter of the court for the execution of sale deed/relevant documents in his favour at your costs, risk and responsibilities, which please note."
23. The allegations of the plaintiff in the plaint is that defendant has threatened that he will not sell the suit property to the plaintiff and would sell it to some third person. The agreement dated 08.01.1008 is an agreement to sell the suit property for a fixed consideration. The perusal of the agreement Ex. PW1/A shows that there was no fixed time for execution of sale deed.
24. The plaint reveals that cause of action in favour of plaintiff to file a suit for specific performance has arisen as the defendant has allegedly threatened to the plaintiff that he would not sell the suit property to the plaintiff. In the legal notice sent by the plaintiff also, the plaintiff had asked the defendant to accept balance payment and to execute sale documents in favour of the plaintiff. However in the plaint the plaintiff has not sought relief of specific performance and has sought permanent injunction to restrain the defendant from creating any third party in the suit property.
25. It is alleged by the plaintiff that the defendant is intending to Inder Kumar vs. Ram Chander C.S. No.24/10 Page 11 of 20 create third party interest in the suit property. The perusal of plaint makes it clear that the plaintiff has cause of action to file suit for specific performance and injunction. However admittedly the plaintiff has claimed only injunction in the present suit.
26. The plaint makes it clear that the efficacious remedy available to the plaintiff was to file a suit for specific performance and injunction. The simplicitor suit for injunction is not maintainable. The Hon'ble High Court of Delhi in the matter of Rohit Kumar & Another vs A.S. Chugh dated 20.11.2008 has observed as under:
"This is for the reason that under section 41 (h) of the Specific Relief Act an injunction cannot be granted when equally efficacious relief can be obtained by any other usual mode. In my opinion, after the cause of action for the relief of specific performance has accrued to a purchaser, the efficacious relief of specific performance is available to the purchaser and an injunction at the instance of the purchaser restraining the seller from dealing with the property cannot be granted. This has also been held in Satish Bahadur v Inder Kumar vs. Ram Chander C.S. No.24/10 Page 12 of 20 Hans Raj AIR 1980 Punjab 351 with which I respectfully concur. If injunction cannot be granted or if the relief of injunction is barred under section 41 (h) of the Specific Relief Act, plaint in such a suit for permanent injunction is liable to be rejected. If such a plaint is liable to be rejected, a suit on the basis of such a plaint cannot bar the subsequent suit for the efficacious relief of specific performance."
27. In view of above discussion, this court holds that the suit of the plaintiff for permanent injunction is not maintainable. Accordingly this issue is decided in favour of the defendant and against the plaintiff.
28. Issue no. 2 Whether the plaintiff has not approached to this court with clean hands?
The onus to prove this issue is on the defendant. The defendant has not stated in his affidavit as to what fact has been concealed by the plaintiff from this court. It is not deposed by the defendant in his affidavit that the plaintiff has not come to court with clean hands. Therefore I am of the opinion that defendant has not been able to Inder Kumar vs. Ram Chander C.S. No.24/10 Page 13 of 20 prove that the plaintiff has not come to the court with clean hands. Hence this issue is decided against the defendant and in favour of the plaintiff.
30. Issue no. 3 and 4 Whether the defendant is creating hindrance/obstruction in the peaceful enjoyment of the suit property by the plaintiff?
Whether the defendant is threatening to dispossess the plaintiff without following due process of law from the suit property?
31. The issues no. 3 and 4 are taken together as both issues require common discussion. The onus to prove these issues was on the plaintiff. The plaintiff has examined himself as PW1 and his brother Sh. Sangam Lal as PW2. PW1 has substantially reiterated the contents of the plaint in his affidavit. PW2 has also deposed on the same lines in his affidavit on which the PW1 has deposed. PW1 has deposed in his affidavit that: "6. That on 08.09.2008 the Deponent again came to the room of the defendant to make balance payment of the amount of the agreement along with witness but the defendant again refused to take the same on one pretext or another.
Inder Kumar vs. Ram Chander C.S. No.24/10 Page 14 of 20
7. That the deponent has no other option left and than he sent a legal notice to the defendant on 09.09.2008 through Regd. AD/UPC for specific performance of the agreement dated 08.01.2008. The carbon copy and the original copies of the Regd. AD and UPC receipts issued by the postal Deptt. is also exhibited as Ex.PW1/C for the kind perusal of this Hon'ble Court. The deponent has not received any reply of the said legal notice till date.
8. That even after sending this legal notice the deponent visited the defendant house many times to make balance payments but the defendant always refused to comply with the said agreement. On 10.06.2009, the defendant stated to the deponent that he will not sell this property and threatened the deponent to vacate the one room portion very soon. When the deponent rejected the said threatening of the deponent thereafter the defendant started regular threats to the deponent and his family members even on one time the deponent's wife was attacked by the defendant."
32. Ld. counsel for the plaintiff argued that the plaintiff has purchased the suit property from the defendant in terms of agreement dated 08.01.2008 and when the plaintiff approached the defendant to Inder Kumar vs. Ram Chander C.S. No.24/10 Page 15 of 20 make payment of remaining consideration amount, the defendant avoided to receive payment. The defendant has not returned the said bayana amount to the plaintiff and has also not sent any notice of forfeiture of the said amount.
33. On the other hand Ld. counsel for the defendant has argued that as per the agreement dated 08.01.2008 the plaintiff was supposed to make payment of Rs.1.00 lakh by 14.02.2008 and in case of default by the plaintiff as per clause (3) of the said agreement, the advance payment made by the plaintiff was to be forfeited. It is also argued that the plaintiff has placed on record copy of legal notice dated 09.09.2008 which was never sent to the defendant as the plaintiff has not placed on record any postal receipt or UPC receipt of sending the said notice to the defendant.
34. The plaintiff has deposed in his affidavit that when he visited the house of the defendant to make balance payment, the defendant refused to comply with the agreement dated 08.01.2008. It is alleged that on 10.06.2009 the defendant stated that he will not sell the suit property and threatened the plaintiff to vacate the one room portion very soon. Defendant has denied the allegation of the plaintiff that he has ever extended threat to dispossess the plaintiff forcefully. Rather Inder Kumar vs. Ram Chander C.S. No.24/10 Page 16 of 20 DW1 has deposed that he has on several occasions requested the plaintiff to vacate the suit property or in the the alternative to pay damages of Rs.2000/ per month.
35. The onus to prove the fact that the defendant is creating hindrance/obstruction in the peaceful enjoyment of the suit property or has threatened the plaintiff to dispossess him forcefully was on the plaintiff. PW2 Sh. Sangam Lal is the brother of plaintiff. He has also averred the same facts as has been averred by the plaintiff in his affidavit. PW2 has admitted in his cross examination that he has come to depose at the instance of the plaintiff. PW2 has admitted in his cross examination that he has not signed any document on 08.01.2008 and he is also not aware of the contents of the documents which was got prepared by Ram Chander. PW2 is not aware of the contents of his affidavit as he has admitted that he can not read English, he does not remember when the affidavit was prepared and and he does not know what is written in his affidavit.
36. In view of the same, testimony of PW2 can not be relied upon as he is not even aware that he is witness to the agreement dated 08.01.2008. Therefore, I am of the opinion that the testimony of PW2 is not reliable and hence is discarded.
Inder Kumar vs. Ram Chander C.S. No.24/10 Page 17 of 20
37. The plaintiff has not placed on record any complaint filed with the police or any authorities against the threat extended by the defendant. In the affidavit the plaintiff has stated that the wife of the plaintiff was attacked by the defendant at one time however the plaintiff has not placed on record any medical certificate or any other document or complaint to show that the defendant has been extending regular threats and has attacked the wife of the plaintiff.
38. It is relevant to mention that the plaintiff in the plaint has not stated that the wife of the plaintiff was ever attacked by the defendant. Nothing has been placed on record by the plaintiff to show that the defendant has threatened to dispossess the plaintiff forcibly from the suit property.
39. The plaintiff has placed on record notice dated 09.09.2008 to show that he was ready and willing to pay the remaining balance consideration to the defendant as per the agreement dated 08.01.2008. However the plaintiff has not placed on record any postal receipt or UPC receipt. The defendant has specifically denied that he had received the notice dated 09.09.2008. The burden lies on the plaintiff to show that the said notice was sent to the defendant.
40. However admittedly the plaintiff has not placed on record any Inder Kumar vs. Ram Chander C.S. No.24/10 Page 18 of 20 document to show that the said notice was sent to the defendant. Hence this court is of the opinion that the notice dated 09.09.2008 was never sent to the defendant.
41. Except for mere oral averments of the plaintiff, nothing has been placed on record by the plaintiff to show that the defendant is creating obstruction in the peaceful enjoyment of the suit property or has threatened the plaintiff and his family members to dispossess them forcefully from the suit property. Thus, this court is of the opinion that mere self serving statement of the plaintiff alleging that the defendant has threatened to dispossess the plaintiff and his family members forcefully from the suit property is not sufficient to prove that defendant has extended any such threat to the plaintiff or his family members when the allegation is specifically denied by the defendant.
42. The relief of permanent injunction is governed by Section 38 of the Specific Relief Act. Section 38 contemplates existence of legal right in favour of the plaintiff, which is either threatened to be violated or is actually violated. In the present suit, the plaintiff has failed to prove that the defendant has ever threatened to dispossess him from the suit property forcibly. When there is no threat of violation of any legal right, the question of granting any injunction does not arise. Inder Kumar vs. Ram Chander C.S. No.24/10 Page 19 of 20
43. Where the defendant has never interfered in possession of the plaintiff at the suit property, the question of granting permanent injunction does not arise. Further, in view of my findings on issue no. 1, the plaintiff is not entitled to any relief. Hence the suit of the plaintiff is dismissed. Parties to bear their own cost.
Decree sheet be prepared accordingly.
File be consigned to the record room.
Pronounced in the open court on 29.02.2012 (NEHA) Civil Judge03(South) Saket, New Delhi.
Inder Kumar vs. Ram Chander C.S. No.24/10 Page 20 of 20