Delhi District Court
Gopal Krihsan Khera vs Sh. Jagmohan Khera on 10 June, 2016
IN THE COURT OF CIVIL JUDGE, SOUTH EAST DISTRICT,
SAKET COURTS COMPLEX, SAKET, NEW DELHI
Presiding Officer: Prabh Deep Kaur, DJS
Suit No.147/2016
Unique ID no.02406C0167412016
In the matter of:
Gopal Krihsan Khera
S/o Late Surender Nath Khera
R/o E1207221, Lajpat Nagar
New Delhi110024 ..........Plaintiff.
Versus
Sh. Jagmohan Khera
S/o Late Surender Nath Khera
R/o E1207221, Lajpat Nagar
New Delhi ........Defendant.
Date of institution of Suit : 29.04.2016
Date on which order was reserved : 09.06.2016
Date of pronouncement of the order : 10.06.2016
ORDER
1. Vide this order, an application under Order 39 Rule 1 and 2 CPC moved by the plaintiff has been disposed off. Plaintiff has filed the present suit with the following prayer:
"to pass a decree of permanent injunction in favour of CS No.147/2016 Sh. Gopal Krishan Khera vs Sh. Jagmohan Khera Page 1 of 12 plaintiff and against the defendant from making any additions / alteration / structural changes in the portion under his possession forming part of property no.EI207, 221, Lajpat NagarI, New Delhi, as shown in red colour in the site plan attached herewith."
2. Plaintiff has filed the application under Order 39 Rule 1 and 2 CPC praying for the same interim relief.
3. Plaintiff's averments:
3.1. Late Shri Surender Nath Khera, father of the parties to the present suit, was the owner of property no. EI207, 221, Lajpat Nagar, New Delhi admeasuring 200 Sq. Yds. Late Shri Surender Nath Khera had made the payment to L & DO against proper receipts since the year 1951 from his own funds in respect of said property. Shri S.N. Khera also raised construction in the said property from his own funds and also taken electricity and water connections in his name before 1958 and thereafter got mutated the property in his name in the records of concerned authority.
3.2. Late Shri Surender Nath Khera expired on 09.01.2001 leaving behind a Will dated 11.03.1999 duly registered thereby bequeathing his property in favour of the plaintiff. The plaintiff filed a probate petition bearing no. 141/2001 (old) 19/2006 (new) on the basis of said registered Will dated 11.3.1999 and the said petition was allowed vide judgment dated 21.8.2008 by the court of Shri Ravinder CS No.147/2016 Sh. Gopal Krishan Khera vs Sh. Jagmohan Khera Page 2 of 12 Dudeja, Ld. ADJ, Delhi, however, in view of said judgment, the plaintiff paid the court fee of Rs.73000/ and the court of Sh. V.P Vaish, Ld. ADJ, Delhi vide its order dated 17.02.2009 was pleased to grant Letter of Administration u/s 290 of the Indian Succession Act in favour of the plaintiff.
3.3. The defendant filed an appeal being FAO No. 407/2008 before Hon'ble High Court of Delhi against the judgment dated 21.08.2008 and the same was withdrawn unconditionally by the defendant from the Hon'ble High Court with liberty to take appropriate step vide order dated 3.3.2011, thus the order dated 21.8.2007 and 17.2.2009 became final and binding upon the parties. The defendant also filed a probate petition bearing no. 186/11 and 383 for revocation of probate granted in favour of the plaintiff in respect of last registered Will dated 11.3.1999 of Late Shri Surender Nath Khera on the said forged and fabricated photocopy of Will dated 19.12.2000, which are pending in the Court of Sh. Inderjeet Singh, Ld. ADJ. The defendant herein also filed a suit for declaration and partition of the suit property which was dismissed by the Court vide its order dated 19.04.20104.
Sh. Diwan Chand Kalra filed application before the Hon'ble High Court of Delhi bearing CM NO.9041/2009 along with a copy of said forged and fabricated will thereby claiming himself as a friend of late CS No.147/2016 Sh. Gopal Krishan Khera vs Sh. Jagmohan Khera Page 3 of 12 Sh. Surender Nath Khera. The plaintiff is litigating with the defendant since last more than a decree i.e. since 2001 onwards after the death of their father and surprisingly late Sh. Diwan Chand Kalra was ignorance of the litigations between the parties, which itself clearly shows that the defendant in collusion and connivance with the aforesaid persons manufactured the said photocopy will dated 19.12.2000 with the intention to deprive the fruits of judgment dated 21.08.2008 and 17.02.2009 passed by Ld. Probate Court. The plaintiff filed a suit for injunction against the defendant in respect of the said property as the defendant was intending to sell, transfer and or alienate the said property and wanted to part with possession of the said property. The said suit bearing no.229/2002 was decreed by the Court vide its judgment dated 07.09.2009 thereby holding that the plaintiff has been declared to be the sole owner of the suit property. The defendant has not filed any appeal against the said judgment and decree dated 07.09.2009, therefore, the same became final and is having binding effect on the defendant.
3.4. After granting probate / letter of administration in favour of the plaintiff, the plaintiff has filed an application before MCD for mutation of said property in his name and also deposited a sum of Rs. 89,489/ vide draft no.181802 dated 16.10.2009 as per demand of the CS No.147/2016 Sh. Gopal Krishan Khera vs Sh. Jagmohan Khera Page 4 of 12 MCD. The MCD has not mutated the said property in favour of the plaintiff due to objections filed by the defendant before the MCD. The defendant is adopting illegal and unlawful tactics thereby depriving the plaintiff to get the fruits of the registered will dated 11.03.1999 executed by the father of the parties in favour of the plaintiff. The defendant is in possession of the portion admeasuring 9 x 60 consisting of ground floor and first floor including one shop at ground floor, except roof of first floor which is in possession of plaintiff, forming part of the aforesaid property as an unauthorized occupant / trespasser because the permission to live in the said property had already been revoked by the plaintiff and after revocation of license / permission, the plaintiff had filed a suit for possession and mesne profits against the defendant which has been decreed by the Court vide judgment and decree dated 02.02.2013. The defendant filed an appeal against the said judgment and decree dated 02.02.2013 which was dismissed by the Court of Sh. Lalit Kumar, Ld. ADJ, Saket, New Delhi vide its judgment dated 15.12.2014. The defendant also filed a RSA no.183/2015 before Hon'ble High Court of Delhi which was also dismissed vide judgment dated 26.09.2015. However, the defendant also filed a review petition, which was also dismissed vide order dated 23.09.2015 by High Court of Delhi. The defendant also filed a SLP CS No.147/2016 Sh. Gopal Krishan Khera vs Sh. Jagmohan Khera Page 5 of 12 bearing no.283738/2016 before Hon'ble Supreme Court of India by concealing the material facts, and the said SLP is pending. Vide order dated 14.03.2016, Hon'ble Supreme Court of India pleased to issue notice to the plaintiff and further directed that status quo with regard to possession as on said date be maintained by the parties till next date of hearing.
3.5. During the pendency of suit for possession, the defendant moved an application under Order 6 Rule 17 CPC after forging / manufacturing the alleged photocopy of will dated 19.12.2000 thereby seeking permission to incorporate the plea of alleged photocopy of will dated 19.12.2000. The said application was dismissed by the Court of Sh. Ajay Pandey, the then Ld. Civil Judge, Delhi vide its order dated 13.07.2011. However, the defendant preferred C. M. (M) No. 1005/2011 before High Court of Delhi which was dismissed by High Court of Delhi vide its order dated 07.09.2011. The defendant further filed review petition no.654/2011 which was also dismissed by High Court. After dismissal of the same, the defendant preferred SLP no. 2285322854/12 before Supreme Court of India which was also dismissed on 11.01.2013. The plea of defendant regarding the alleged photocopy of will dated 19.12.2000 was negatived.
3.6. On 16.04.2016, the defendant brought building material CS No.147/2016 Sh. Gopal Krishan Khera vs Sh. Jagmohan Khera Page 6 of 12 and mason with the intention to change structure of the property under his possession so that the plaintiff may not be able to take possession of the property under the possession of defendant, for which a decree of possession has already been passed. The plaintiff lodged a complaint with the police on 16.04.2016 but the police did not take any action regarding the same. The defendant also extended threats to the plaintiff that he will make the construction in the shape of additions / alternations and change entire structure contrary to site plan of the plaintiff in the suit for possession so that at the time of execution of decree of possession the plaintiff may not be able to execute the decree of possession against him.
4. Defendant has opposed the application by way of written reply as well as by way of filing an application under Order 7 Rule 11 CPC on the ground that defendant without prejudice to his legal right to file written statement to the plaint filed by the plaintiff within the prescribed period of limitation gives reply to the application under reply, in compliance of order dated 02.06.2016, passed by the Court and therefore, without going into the detailed facts of the plaintiff, limit it to the present application under reply. The present application seeking ex parte adinterim injunction restraining the defendant thereby from making any alteration or structural changes in the suit CS No.147/2016 Sh. Gopal Krishan Khera vs Sh. Jagmohan Khera Page 7 of 12 property, is devoid of merits as it does not disclose a prima facie for grant of injunction. Further, there has not been any construction carried out by the defendant with intent to alter the structure of the suit property and if any act, as alleged though denied, has been carried out, the plaintiff has an equally efficacious relief by approaching the Supreme Court of India in contempt jurisdiction seeking vacation of status quo order dated 28.01.2016 passed in SLP No.CC/No.952/2016 whereby the defendant possession is protected and therefore, the defendant is not in illegal, unlawful and unauthorized possession as alleged by the plaintiff. The present application along with the suit is devoid of any merit as not disclose a prima facie case and also liable to be rejected under Section 41 of Specific Relief Act, 1963 to avoid multiplicity of proceeding. No addition, alternation or structural changes has been carried out by the defendant in the portion of suit property under his possession as alleged by the plaintiff and the plaintiff has been unnecessarily harassing the defendant by filing false and frivolous case before the Court. The plaintiff has no case for grant of injunction and therefore, no case for grant of adinterim injunction so as to prevent irreparable loss is made out. The plaintiff has no prima facie case and the likelihood of succeeding in the present suit is also very least in favour of the plaintiff on account of involvement of an CS No.147/2016 Sh. Gopal Krishan Khera vs Sh. Jagmohan Khera Page 8 of 12 important substantial of law in the aforesaid special leave petition before the Hon'ble Supreme Court of India, which have bearing on the entitlement of the plaintiff.
5. Arguments heard. Record perused.
6. It is wellsettled law that a relief of interim injunction cannot be claimed as a matter of right. Also, before granting adinterim injunction, the Court must be satisfied that there exists a prima facie case in favour of plaintiff and against the defendant; that balance of convenience lies in favour of the plaintiff; and that irreparable injury would be caused to the plaintiff if ad interim injunction as prayed is not granted. All the three grounds must coexist.
7. Admittedly, in the present case, the plaintiff is real brother of the defendant and Sh. Surender Nath Khera i.e. father of the parties was owner of the property. He executed a registered will dated 11.03.1999 in favour of plaintiff. The probate petition filed by the plaintiff was allowed in favour of plaintiff vide order dated 21.08.2008. The defendant filed an appeal against the said judgment dated 21.08.2008 and later on withdrawn the same. The defendant filed a separate probate petition which is still pending. The defendant also filed a suit for declaration and partition which was dismissed vide order dated 15.04.2004. Plaintiff also filed a suit for injunction thereby CS No.147/2016 Sh. Gopal Krishan Khera vs Sh. Jagmohan Khera Page 9 of 12 restraining the defendant from creating third party interest and from parting with possession and the said suit was decreed in favour of plaintiff vide order dated 07.09.2009. Thereafter, on the basis of will in favour of plaintiff, the plaintiff filed a suit for possession and damages etc. which was decreed by Sh. Pranjal Aneja, Ld. Civil judge, Delhi vide order dated 02.02.2013. The appeal against the said order was dismissed vide order dated 12.12.2014 and thereafter, defendant filed a SRA in Hon'ble High Court of Delhi which was dismissed vide order dated 29.06.2015. Even review petition was dismissed vide order dated 23.09.2015. Thereafter, the defendant filed a SLP before Hon'ble Supreme Court of India which is pending and Supreme Court of India has passed status quo order with regard to possession till next date of hearing.
8. As per plaintiff, on 16.04.2016 defendant brought building material to suit premises change the structure of property and despite police complaint by plaintiff, no action has been taken. Hence, the present suit.
On the other hand, defendant has opposed the application on the ground that the plaint is liable to be dismissed under Order 7 Rule 11 CPC for being devoid of cause of action and moreover, plaintiff has efficacious remedy to approach the Hon'ble Supreme Court of India CS No.147/2016 Sh. Gopal Krishan Khera vs Sh. Jagmohan Khera Page 10 of 12 for contempt proceedings and for vacation of status quo order dated 28.01.2016. Moreover, as per defendant, defendant is not carrying any addition or alternation or structural changes in the premises.
Clearly, both the parties are claiming themselves to be owners of the property and it is matter of trial as to who is real owner of the property but at present, the defendant is in possession of the property and a decree of possession has been passed in favour of plaintiff but the same is under challenge by way of appeal. Therefore, the question of ownership cannot be decided at this stage.
Further, it is well settled principle that at the time of considering the application under Order 7 Rule 11 CPC only the plaint and documents annexed with plaint have to be looked upon and defence of defendant cannot be considered. Considering the plaint and documents annexed therewith, it appears that plaint prima facies discloses a cause of action which requires to be gone through the trial. Further, the allegations as to structural changes by the defendant is sufficient to constitute a separate and sufficient cause of action in favour of plaintiff. Further, the plaintiff has filed photographs along with the plaint and perusal of photographs show that the amount of bricks shown in the photographs at page no.245 is sufficient to give prima facie reasonable apprehension that the defendant is going to CS No.147/2016 Sh. Gopal Krishan Khera vs Sh. Jagmohan Khera Page 11 of 12 change the structural situation of property. Therefore, a prima facie case lies in favour of plaintiff.
Further, the defendant himself has stated in the reply that the defendant is not making any change / alteration / structural changes in the property and therefore, no harm will be caused to the defendant if the interim relief is granted in favour of plaintiff and clearly, balance of convenience lies in favour of plaintiff.
Further, if the defendant is not restrained from making structural changes in the premises, then definitely plaintiff will suffer irreparable loss because at present admittedly property is already in litigation and structural changes in the premises may hamper the execution proceedings which are already pending against defendant.
In view of above discussion, application of plaintiff under Order 39 Rule 1 and 2 CPC is allowed and defendant is restrained from making any construction, over the property till the disposal of suit and is directed to maintain status quo construction and application of defendant under Order 7 Rule 11 CPC is dismissed being devoid of merits. Nothing discussed herein in above shall tantamount to an expression on the merits of the suit.
Pronounced in the open Court (Prabh Deep Kaur)
On this 10th day of June 2016 Civil Judge, South East
Saket Courts, New Delhi
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