Delhi District Court
Vaseem Saifi vs Municipal Corporation Of Delhi on 3 August, 2023
IN THE COURT OF MS. MANU VEDWAN,
ADDITIONAL DISTRICT JUDGE-2, NORTH EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
MCA No. 05/2023
CNR No. DLNE01-000750-2023
Vaseem Saifi
S/o Sh. Bhure Khan
R/o V-283, Gali No. 21,
Vijay Park, Maujpur, Delhi. .....Appellant
Versus
1. Municipal Corporation of Delhi
Through its Commissioner
Dr. S.P. Mukherjee Civic Centre
J.L.N. Marg, New Delhi.
2. Executive Engineer
Delhi Municipal Corporation
Shahadra North Zone,
Shahadra, Delhi.
3. Commissioner of Police
Police Head Quarter, ITO
New Delhi.
4. Station House Officer
Police Station Zafrabad
Delhi.
5. Zafar
S/o Sh. Irshad Ali
R/o E-81, Gali No. 12 near Chand Musjid,
Shashtri Park, Delhi.
6. Buddh Bhushan Gautam
MCA No. 05/2023 Vaseem Saifi Vs. Municipal Corporation of Delhi & Ors. Page No. 1 of 18
S/o Sh. Hari Singh Gautam
R/o House No. 61, Gali No.5,
Dr. Ambedkar Basti, Mauzpur, Delhi. ..... Respondents
Date of filing of the present appeal : 06.03.2023 Date of completion of Final Arguments : 25.07.2023 Date of judgment : 03.08.2023 Final Decision : Dismissed JUDGMENT-in-APPEAL
1. The present appeal has been preferred by the appellant (plaintiff before the Learned Trial Court) against the impugned order dated 03.01.2023, titled as Vaseem Saifi vs. East Delhi Municipal Corporation & Ors. in Civil Suit no. 442/2019. The application of plaintiff filed under Order XXXIX Rules 1 & 2 read with section 151 CPC seeking ad-interim injunction was dismissed by the Court of Learned Administrative Civil Judge-cum-Additional Rent Controller-cum-Commercial Civil Judge, North East District, Karkardooma Courts, Delhi. Therefore, the present appeal.
2. For the sake of convenience, parties shall be denoted as they were before Learned Trial Court. Appellant, herein, Sh. Vaseem Saifi as plaintiff and respondent that is East Delhi Municipal Corporation, Executive Engineer, Commissioner of Police, Station House Officer, Police Station Zafrabad, Sh. Zafar and Sh. Buddh Bhushan Gautam shall be referred to as defendants.
3. The brief facts as disclosed in the appeal are that Learned Trial Court had dismissed the application under Order XXXIX Rule 1 & 2 read MCA No. 05/2023 Vaseem Saifi Vs. Municipal Corporation of Delhi & Ors. Page No. 2 of 18 with section 151 CPC moved by the appellant/plaintiff illegally and without considering the documents placed on record. Before, moving further it seems reasonable that the contents of application moved by appellant/plaintiff before Learned Trial Court under Order XXXIX Rule 1 & 2 read with section 151 CPC be first read. It is stated in the application under Order XXXIX Rule 1 & 2 read with section 151 CPC filed by the appellant/plaintiff that the facts of plaint be read as part and parcel of the application. It is stated in the plaint by appellant/plaintiff that on 13.07.2017, appellant/plaintiff had entered into an agreement to sell in respect of 200 square yards of property bearing number D-54 and D-55, measuring 50 square yards on 04.08.2017 out of Khasra Number 166/4, 209/143, measuring total 250 square yards situated at Village Ghonda, Gujran Bangar, Delhi in the abadi of North Ghonda. It is further stated that the as the agreement to sell was executed with the plaintiff of the entire land with the construction thereon hence, on 19.08.2018, a sum of rupees 83,50,000/- had been paid by the appellant/plaintiff towards the consideration charges. It is further stated that on 10.06.2017, appellant/plaintiff had got vacated the part of premises on the land measuring 65 square yards from its occupant Mohd. Salam S/o Mohd. Yasin by making the payment of Rs. 47,50,000/- by way of cheque and cash in presence of witnesses. Similarly, on 10.07.2017, appellant/plaintiff had got vacated the shop measuring 10X23, forming part of above property by making payment of rupees 5,00,000/- from another occupant Sh. Azad Singh S/o Sh. Roop Chand in presence of marginal witnesses.
It is further stated that respondent/defendant number 5 and 6 represented themselves to the appellant/plaintiff that they had good scheme in construction and development of the land and in lieu of same, they would get 1/5th share in the profit earn after selling out of the same. They had also asked the plaintiff to execute the Power of Attorney in their MCA No. 05/2023 Vaseem Saifi Vs. Municipal Corporation of Delhi & Ors. Page No. 3 of 18 favour so that construction work would be executed smoothly. Appellant/plaintiff being son and friend of respondent/defendant number 5 and 6 after believing their representation agreed for the same. It is further stated that thereafter respondent/defendant no. 5 and 6 took the plaintiff to the office of Sub Registrar and instead of executing Special Power of Attorney, got prepared the sale deed in their favour in conspiracy with each other and after taking the benefit of poor knowledge of English of appellant/plaintiff. It is therefore stated that the appellant/plaintiff has very much right, title and interest in the subject matter of the suit property. Accordingly, appellant/plaintiff had filed a comprehensive suit against the respondent/defendant number 5 and 6 but they have started unauthorized and illegal construction without getting any plan sanctioned from respondent/defendant number 1 and 2. Respondent/defendant number 3 and 4 are also responsible for the same. It is further stated that thereafter respondent/defendant number 5 and 6 had started huge unauthorized/illegally construction in the suit property against building bye-laws and master zonal plan, Delhi. The suit filed by appellant/plaintiff before the Learned Trial Court is basically qua the unauthorized/illegal construction being raised by respondent/defendant number 5 and 6. It is further stated that after completion of pleadings before the Learned Trial Court and after hearing the arguments, order on the application of appellant/plaintiff filed under Order XXXIX Rule 1 & 2 read with section 151 CPC and application of respondent/defendant number 5 and 6 filed under Order XXXIX Rule 4 CPC was passed on 03.01.2023 against the appellant/plaintiff.
4. Again, let us now discuss the contents of reply of the application moved by the respondent/defendant number 5 and 6. It is stated by respondent/defendant number 5 and 6 in their reply to the application of MCA No. 05/2023 Vaseem Saifi Vs. Municipal Corporation of Delhi & Ors. Page No. 4 of 18 appellant/plaintiff filed under Order XXXIX Rule 1 & 2 read with section 151 CPC that the contents of their written statement be read as part and parcel of reply. Respondent/defendant number 5 and 6 in their common written statement filed before the Learned Trial Court firstly, objected the pecuniary jurisdiction of the Court and the valuation of the suit assessed by the appellant/plaintiff. It is also stated by the respondents/defendants that the agreement to sale dated 13.07.2017, relied upon by the appellant/plaintiff is time barred. It is also raised that both the respondents/defendants are not party to the alleged agreement. It is stated that the main objection of the appellant/plaintiff is qua the unauthorized construction, though the respondent/defendants here are having in possession of the sanctioned building plan from the competent authority that too within the four corners of the law. It is also stated that appellant/plaintiff is himself witness to the registered sale deed executed by Sh. Sunil Bhatt, the erstwhile owner of the suit property in favour of respondents/defendants vide registered sale deed dated 16.08.2021. It is also stated that even otherwise also, it the appellant/plaintiff who has allegedly miserably failed to perform his part under the alleged agreement dated 13.07.2017 and thus, it was to be terminated. The erstwhile owners had even filed a suit for recovery of damages against the present appellant/plaintiff. It is therefore requested that there is no merit in the application of appellant/plaintiff.
5. Now, Learned Counsel for appellant/plaintiff has before this Court raised specific grounds of appeal qua the impugned order dated 03.01.2023. It is stated in the grounds of appeal that the impugned order is against the equity, good conscience, fair play and principle of natural justice. It is further stated that the impugned order is based upon subjective notions, assumptions and presumptions unsupported by the pleadings. It is MCA No. 05/2023 Vaseem Saifi Vs. Municipal Corporation of Delhi & Ors. Page No. 5 of 18 stated that both the respondents/defendant number 5 and 6 have never complied with the ingredients mentioned in the order but latter was still passed in their favour. It is further stated that the Learned Trial Court in it's order dated 03.01.2023 had not considered the three ingredients for the grant of temporary injunction viz. prima facie case, balance of convenience and irreparable loss to the party. Not an iota of these ingredients are ever discussed in that impugned order.
It is further stated that the Learned Trial Court had considered the appellant/plaintiff as the owner on the basis of agreement to sell while, the case of the appellant/plaintiff is that he had entered into an agreement to sell with the predecessor of respondent/defendant number 5 and 6 and appellant/plaintiff has thus have the superior rights than the respondent/defendant number 5 and 6. It is further stated that Hon'ble High Court has also considered the prima facie case in favour of the appellant/plaintiff while, the Learned Trial Court has failed to appreciate the same. It is also stated that appellant/plaintiff had already paid a considerable amount more than the amount mentioned in the alleged sale deed in favour of respondent/defendant number 5 and 6. it is therefore requested that the order dated 03.01.2023 passed by the Learned Trial Court on the application of the appellant/plaintiff moved under Order XXXIX rule 1 & 2 read with section 151 CPC be set aside and the status quo order be restored.
6. In the present appeal, respondent/defendant number 5 has instead of filing reply to the appeal instead chosen to file an application under section 151 CPC for dismissal of the present appeal being not maintainable. It is stated in the application that the present suit for mandatory and permanent injunction has now become infructous as the appellant/plaintiff has filed a comprehensive suit for declaration, specific performance of contract with MCA No. 05/2023 Vaseem Saifi Vs. Municipal Corporation of Delhi & Ors. Page No. 6 of 18 possession alongwith consequential relief of permanent injunction bearing CS No.13/2023 before the Hon'ble High Court of Delhi, in ordinary original Civil Jurisdiction and the relief sought by the appellants, herein in the present appeal is directly connected with the outcome of comprehensive suit filed by the appellants before the Hon'ble Court. It is further stated that the since the main suit filed by the appellant/plaintiff had become infructuous, the appeal arising out of the said suit is not maintainable in the eyes of law. It is also stated that the appellants are relying upon the time barred agreement to sale dated 13.07.2017, which was entered into with Sh. Sunil Bhatt who had already terminated that agreement for want of non performance of the contract. Consequently, the said Sunil Bhatt had executed the registered Sale Deed, dated 16.08.2021, in favour of respondent/defendant number 5 wherein, the appellant/plaintiff, put his witness in the said registered Sale Deed. It is further stated that the present appeal even otherwise is not maintainable as respondent/defendant number 5 is the lawful owner of the suit property and is raising the constructions under the sanctioned plan issued by the Municipal Corporation of Delhi. In view of this, the present appeal is liable to be dismissed.
7. I have heard the arguments from both sides and perused the complete file including the impugned order. Written submissions have also been filed on behalf of both the parties. Learned counsel for appellant has relied upon the judgments titled as Vijay A. Mittal vs. Kulwant Rai (dead) through legal representatives & Anr., Civil Appeal No. 5177/2009 decided on 28.01.2019 and Videocon Properties Ltd. vs. Dr. Bhai Chanda Laboratories & Ors., Civil Appeal No. 10135/2003, decided on 19.12.2003. Both the judgments have been perused carefully and they seem not to apply to the present facts and circumstances.
MCA No. 05/2023 Vaseem Saifi Vs. Municipal Corporation of Delhi & Ors. Page No. 7 of 18 In the written submissions of appellant/plaintiff, apart from reiterating the facts mentioned in the appeal by the appellant/plaintiff, it is stated by the appellant/plaintiff that on 11.11.2015, appellant/plaintiff entered into an agreement to sale by making the payment of rupees 5,00,000/- against the sale of the property measuring 250 square yards in total. The payment of rupees 25,00,000/- has to be made to Sh. Sunil Bhatt at the time of giving actual physical possession of the aforesaid land. Balance payment of the total deal was to be completed within the period of ten months from the date of handing over of actual physical possession and all legal cases stands withdrawn/decided. It is stated that on 10.06.2017, on the asking of aforementioned Sunil Bhatt, appellant got vacated the part of premises on the land measuring 65 square yards from its occupant Sh. Mohd. Salam by making the payment of rupees 47,50,000/-. It is further stated that on 10.07.2017, appellant got vacated the shop measuring 10 X 23 forming the part of the above mentioned property by making the payment of rupees 5,00,000/- from the another occupant, namely, Azad Singh. It is further stated that on 19.08.2018, a sum of rupees 83,50,000/- had been paid by the appellant which has been acknowledge by Sh. Sunil Bhatt at the back of agreement itself.
It is further stated that on 16.08.2021, respondent/defendant number 5 and 6 took the appellant with the original documents of agreement to the office of Sub-Registrar and there in the guise of preparing the Special Power of Attorney got prepared and executed the sale deed in their favour. It is further stated that thereafter on 10.03.2022, respondent/defendant number 5 and 6 also got executed a sale deed in respect of 20 square yards from Sh. Ravi Kumar Kaul who had also received an amount of rupees 24,50,000/- from the appellant/plaintiff. It is further stated that in the first week of April, 2022, when appellant/plaintiff came to know about the conspiracy of respondent/defendant number 5 and 6, he had approached MCA No. 05/2023 Vaseem Saifi Vs. Municipal Corporation of Delhi & Ors. Page No. 8 of 18 the local police but police had asked him to take recourse to the Civil Court. Appellant/plaintiff had suffered great hardship and loss because of the respondents/defendants. Appellant/plaintiff had also got issued legal notice upon the respondents/defendants which was replied in a very casual way by the respondents/defendants. It is stated that appellant/plaintiff had paid a sum of rupees 83,50,000/- but respondents/defendant number 5 and 6 by hatching the conspiracy got executed the sale deed in their favour but the appellant/plaintiff has superior right than the subsequent purchaser in terms of the judgment of Hon'ble Supreme Court titled as Vijay A. Mittal & Ors. vs. Kulwant Rai.
It is further stated that respondents/defendants had also started unauthorized and illegal construction on the suit property. It is further stated that the appellant/plaintiff was thus forced to file suit for permanent and mandatory injunction in which the respondent/defendant number 5 and 6 moved an application under Order XXXIX Rule 4 CPC pleading that no unauthorized construction is being raised by them and that the agreement to sell relied upon by the appellant/plaintiff is time barred as per the article 135 of the Limitation Act. It is also stated by respondent/defendant number 5 and 6 that the appellant/plaintiff had failed to implead Sh. Sunil Bhatt as a party who filed a separate suit for damages of rupees 48,00,000/- against the appellant/plaintiff as appellant/plaintiff is one of the witnesses of the sale deed in favour of respondent/defendant number 5. It is stated that the application of the respondent/defendant under Order XXXIX Rule 4 CPC has no meaning in the eyes of law and therefore is liable to be dismissed. It is further stated that respondent/defendant number 1 and 2 had also filed their status report as well as the written statement stating therein that on 30.08.2022, Junior Engineer inspected the property and there are some deviation/excess coverage against the building sanctioned plan. Show cause notice under section 344 (1) and 343 of Delhi Municipal Corporation MCA No. 05/2023 Vaseem Saifi Vs. Municipal Corporation of Delhi & Ors. Page No. 9 of 18 Act was also issued on 02.09.2022 to owner/occupier Sh. Zafar Mohammad. As the owner has not submitted his reply, demolition notice dated 09.09.2022, of Delhi Municipal Corporation Act was issued. It is also stated that the appellant/plaintiff had also filed a suit before the Hon'ble High Court regarding the same property for declaration, specific performance of contract with possession alongwith consequential relief of permanent injunction in which till the next date of hearing status quo with regard to title and possession was directed to be maintained. It is therefore requested that the appellant/plaintiff has successfully proved prima facie case in his favour, balance of convenience and irreparable injury, he would suffer, if appeal is not allowed. Thus, his appeal be allowed.
Respondent/defendant number 5 and 6 have also filed their written submissions. It is stated by respondent/defendant number 5 and 6 that the Learned Trial Court was pleased to pass an order dated 03.01.2023 whereby, an application under Order XXXIX Rule 1 & 2 CPC filed by the appellant/plaintiff was dismissed while, the application under Order XXXIX Rule 4 CPC filed by the respondent/defendant number 5 has been allowed. Learned Trial Court had passed a well reasoned order. It is stated that the appellant/plaintiff had entered into an agreement to sell with Sunil Bhat (erstwhile owner) whom the appellant/plaintiff did not make party to the suit. It is further stated that the appellant/plaintiff is a complete stranger to the respondent/defendant number 5 who is the lawful owner of the suit property bearing number D-54 and D-55, measuring 50 square yards on 04.08.2017 out of Khasra Number 166/, 209/143, measuring total 250 square yards situated at Village Ghonda Gujran Banger, by virtue of registered sale deed in favour of the respondent/defendant number 5, which was purchased by him from Sh. Sunil Bhatt, who is not made party to the present suit. It is further stated that if any relief has to be sought by the appellant/plaintiff that totally falls within the domain of Sh. Sunil MCA No. 05/2023 Vaseem Saifi Vs. Municipal Corporation of Delhi & Ors. Page No. 10 of 18 Bhatt, who was the original owner of the suit property and with whom appellant/plaintiff had allegedly entered into an agreement to sell.
It is further stated that the appellant/plaintiff has no locus standi against the respondent/defendant number 5 and 6 to ask for mandatory injunction as there is no breach or personal injury has been caused to the appellant/plaintiff on the account of the act or omission done by the respondent/defendant number 5. It is specifically denied that any unauthorized construction had ever been raised by the respondent/defendant number 5. It is further stated that the alleged cause of action stated to be arisen on account of non compliance of agreement to sell dated 13.07.2017, which was not executed with the respondent/defendant number 5. It is also stated that appellant/plaintiff has miserably failed to explain that how he has become a witness to the sale deed dated 21.08.2021, executed by Sh. Sunil Bhatt in favour of respondent/defendant number 5. It is further stated that respondent/defendant number 5 being an absolute owner of the property by virtue of registered sale deed has every rights to raise the construction in accordance with the sanctioned plan issued by respondent/defendant number 1 in his favour.
It is further stated that with respect to the objections raised by the Municipal Corporation of Delhi, they are subject matter of final scrutiny. It is further stated that even the alleged agreement to sell dated 13.07.2017 has now become time barred. It is therefore stated that the Hon'ble Court has rightly summed up that the appellant/plaintiff has no ground for pressing the application under Order XXXIX Rule 1 & 2 read with section 151 CPC. It is also stated that even otherwise also, it came to the notice of respondent/defendant number 5 and 6 that the appellant/plaintiff had miserably failed to arrange the sale consideration within the stipulated time period mentioned in the agreement therefore, that agreement was MCA No. 05/2023 Vaseem Saifi Vs. Municipal Corporation of Delhi & Ors. Page No. 11 of 18 terminated by Sh. Sunil Bhatt. Thus, the appellant/plaintiff has no right to seek any remedy against the respondent/defendant number 5. It is further stated that after making the entire sale consideration to Sh. Sunil Bhatt, the possession of the suit property has been delivered by Sunil Bhatt to respondent/defendant number 5. It is further stated that only after receiving full consideration sale deed was executed in favour of respondent/defendant number 5 in which appellant/plaintiff had also put his signatures as witness. It is therefore requested that the appellant/plaintiff has no case in his favour at all and appeal be dismissed outrightly.
8. Analysis and Findings:- Firstly, with respect to the contention of respondents/defendants that the appeal is not maintainable as connected/similar matter is pending before the Hon'ble High Court. Here, it needs to be stressed that the present appeal pertains to impugned order, dated 03.01.2023, passed by Learned Trial Court qua the application of appellant/plaintiff filed under Order XXXIX Rule 1 & 2 read with section 151 CPC and the application of respondent/defendant number 5 and 6 filed under Order XXXIX Rule 4 CPC arising out from the suit of Vasim Saifi vs. EDMC bearing CS (OS) No. 442/2022 seems to have no concern with the other suit pending before the Hon'ble high Court of Delhi that too, to the extent of making the present appeal non-maintainable.
9. Thus, as the present appeal in all circumstances is maintainable, therefore, now moving forward, to the issue raised by the appellant/plaintiff as against the impugned order dated 03.01.2023 passed by the Learned Trial Court. With certainty, it can be said that Order XXXIX Rule 1 Code of Civil Procedure provides that when defendant threatens the plaintiff to dispossess the plaintiff or otherwise cause injury MCA No. 05/2023 Vaseem Saifi Vs. Municipal Corporation of Delhi & Ors. Page No. 12 of 18 to the plaintiff in relation to any property in dispute in the suit, the Court may grant a temporary injunction to restrain such an act or make other order for the purpose of preventing the dispossession of the plaintiff or for the purpose of preventing the causing of injury to the plaintiff in relation to any property in dispute. Thus, injunction is basically a preventive relief and is generally granted taking note of equity. Measures should be taken by the Court to ensure the even handed justice to both the parties. In any case, while granting or refusing the injunction, the Court should properly consider the pleadings and the documents as well as take pragmatics view and must attack on the inherent interest of continuing the frivolous litigations by unscrupulous litigants. Further, it is to be noted that in issuing temporary injunction the tests to be applied are (i) whether the plaintiff has a prima facie case, (ii) whether the balance of convenience is in favour of the plaintiff, and (iii) whether the plaintiff would suffer an irreparable injury if his/her prayer for temporary injunction is disallowed. This Court is required to see prima facie case, balance of convenience as well as irreparable loss.
Also, passing of interim order in favour of plaintiff/party is only for the limited purpose of securing interest of the plaintiff/party. Due care and caution has to be bestowed by the Court while granting or refusing an injunction as it may affect the final disposal of the suit. Measure should be taken by the Court to ensure even-handed justice to both the parties. Thus, the granting of an ad-interim injunction is purely with the discretion of the Court, but the discretion has to be exercised in accordance with the sound judicial principles. The principles which govern the exercise of discretion are that the party claiming the interim injunction should establish that it has a prima facie case, that if an injunction is not granted that party is likely to suffer a great mischief and that interference of the Court is necessary to protect the party from irreparable injury. It is a settled MCA No. 05/2023 Vaseem Saifi Vs. Municipal Corporation of Delhi & Ors. Page No. 13 of 18 principle of law that injunction or interim orders are issued not on grace or on default of any person. Interim orders are granted on the basis of the case made out prima facie in the pleadings and that in the interest of justice such interim order is necessary in order to prevent abuse of process of law or to prevent wastage or to maintain the situation as on date or from recurrence of certain incident which were existing as on the date of presenting such application out of which the proceeding is arising. The Court is called upon to see whether the party who has approached the Court has a plausible case and whether there is a possibility of such case succeeding at the trial. Plaintiff should also establish that the balance of convenience in the event of withholding the temporary injunction, will in all events, exceed that of the defendant in case he is restrained.
If these tests are satisfied then it is the duty of the Court to see whether the damages that the plaintiff is likely to suffer for the action of the defendants complained of can be compensated in money and if so whether there is a standard for ascertaining such compensation. If such compensation can be ascertained, then the interlocutory order of injunction should normally be refused. However, if the Court is of the view that such compensation cannot be ascertained then it is the duty of the Court to see the balance of convenience and inconvenience of the parties. Thus, plaintiff must also show a clear necessity for affording the protection to his alleged right which would otherwise be seriously injured/impaired. Again, a prima facie case implies the probability of the plaintiff obtaining a relief on the materials placed before the Court. Every piece of evidence produced by either party has to be taken into consideration in deciding the existence of a prima facie case to justify issuance of a temporary injunction. It is a well settled principle of law that in order to make out a prima facie case, necessary for granting an interlocutory injunction, the plaintiff need not establish his title. It is enough if he can show that he has MCA No. 05/2023 Vaseem Saifi Vs. Municipal Corporation of Delhi & Ors. Page No. 14 of 18 a fair question to raise as to the existence of right which he alleged and can satisfy the Court that the property in dispute should be preserved in its present actual condition until such question is disposed of. Reliance is placed upon Adani Exports Ltd. v Hindustan Organic Chemicals Ltd, (2000) 3 GLR 2759. Further, with regard to prima facie case is concerned, in Best Sellers Retail Pvt. Ltd. vs. Aditya Birla Nuvo Ltd. (2012) 6 SCC 792, the Hon'ble Supreme Court held that even where prima facie case is in favour of the plaintiff, the Court will refuse temporary injunction if the injury suffered by plaintiff was not irreparable. Again, in Dalpat Kumar vs. Prahlad Singh (1992) 1 SCC 719, the Apex Court held that while granting or refusing to grant interim injunction, the Court should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that which is likely to be caused to the other sides if the injunction is granted.
10. Thus, if on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit the subject matter should be maintained in status quo, an injunction would be passed. It can be safely said that the Court has to exercise sound judicial discretion in granting or refusing the relief of interim injunction pending the suit. It is not the case that one of the conditions for grant of temporary injunction i.e. prima facie case will suffice, but the other two ingredients namely, balance of convenience and irreparable loss also need to be satisfied. Injunctions are a form of equitable relief and have to be adjusted in aid of equity and justice to the facts of each particular case. With the first condition as sine qua non, the party must satisfy at least two conditions conjunctively. A mere proof of one of the three conditions would not take the party out of woods. The phrases 'prima facie case', MCA No. 05/2023 Vaseem Saifi Vs. Municipal Corporation of Delhi & Ors. Page No. 15 of 18 'balance of convenience', and 'irreparable loss' are not rhetorical phrases for incantation, but words of width and elasticity to meet myriad situations presented by man's ingenuity in given facts and circumstances, but always be hedged with sound exercise of judicial discretion to meet the ends of justice. Reliance is placed upon Hari Das Singh v. Commr, Agra Division, AIR 2000 All 279 and Dalpat Kumar v. Prahlad Singh, (1992) 1 SCC 719.
11. Now, in the instant case, admittedly, most of these documents relied upon by the appellant/plaintiff were executed mainly between Sh. Sunil Bhatt, his relatives and the appellant/plaintiff on different dates. Appellant/plaintiff has relied/annexed documents viz. photocopy of unregistered agreement to sell and purchase dated 23.03.2016 between Ravi Kumar Kaul and Sunil Bhatt as first party and plaintiff as the second party with respect to sale of suit property for a consideration of rupees 2,75,00,000/- and as per which plaintiff has already paid a sum of rupees 5,00,000/- to the first party, photocopy of unregistered 'Sell Purchase Agreement Deed' dated 17.09.2016, whereby Ravi Kumar Kaul had entered into an agreement for sale in respect of land measuring 150 square yards of the suit property; photocopy of an unregistered Agreement to Sell/Purchase dated 13.07.2017 between Sunil Bhatt and the plaintiff for sale of 200 square yards of the suit property under Khasra No.166/4, 209/143 and 207/143 situated at Ghonda Ghuran banga, Shahdara, Delhi for a sale consideration of rupees 2,20,00,000/- and whereby agreement dated 23.03.2016 is cancelled, photocopy of an unregistered 'Earnest Amount Agreement' dated 04.08.2017 between Sh. Ravi Kumar Kaul and the plaintiff qua sale of 50 square yards of the suit property comprising of Khasra No.166/4, 209/143 and 207/143 situated at Ghonda Ghuran Banga, Shahdara, Delhi whereby Sh. Ravi Kumar Kaul has received a sum of rupees 5,00,000/- cash from plaintiff as earnest money and and has handed MCA No. 05/2023 Vaseem Saifi Vs. Municipal Corporation of Delhi & Ors. Page No. 16 of 18 over 27 square yards out of total 50 square yards at the time of receipt of earnest money; photocopy of 'Ikrarnama' dated 10.06.2017 whereby plaintiff on payment of rupees 47,50,000- to Mohd. Salam got vacated 65 square yards of the suit property; photocopy of 'Ikrarnama' dated 10.07.2017 whereby plaintiff on payment of rupees 5,00,000/- to Sh. Azad Singh got vacated the suit property in the area of 10/23, etc. On the other hand, respondent/defendant number 5 has basically relied upon two sale deeds one dated 16.08.2021 executed between Sh. Sunil Bhatt and respondent number 5 qua the property D-54 measuring 200 square yards (appellant/plaintiff is one of the witnesses) and another dated March 2022 executed between Sh. Ravi Kumar Kaul and respondent /defendant number 5 qua the property bearing number D-55 measuring 20 square yards.
12. Further, with respect to documents annexed, pleadings made and relief sought here it needs also to be mentioned that in his application under Order XXXIX Rule 1 & 2 read with section 151 CPC, appellant/plaintiff has requested that the respondent/defendant number 5 and 6 be asked to stop the unauthorized and illegal construction at property bearing number D-54 and D-55 in Khasra No. 166/4 and 209/143 situated at Ghonda Ghuran banga, Shahdara, Delhi. After perusing the entire set of documents relied upon by the the appellant/plaintiff and in light of the detailed discussion with respect to the aspect of relief to be granted under Order XXXIX Rule 1 & 2 CPC, no reason/locus standi as such can be culled out on the part of appellant/plaintiff which is required for establishing prima facie case in his favour. Even otherwise, also the scenario of alleged unauthorized construction is purely a matter of trial as both the parties are alleging their own sets of facts. Here, it is not out of place to say that in accordance with Section 336 of Delhi Municipal Act, it MCA No. 05/2023 Vaseem Saifi Vs. Municipal Corporation of Delhi & Ors. Page No. 17 of 18 is a basically the prerogative of the Municipal Corporation to look into the matter of granting a sanction/refusal of building and also to initiate the proceedings in the competent Court of special jurisdiction dealing with the cases of unauthorized construction, if that is required to be done.
Therefore, in light of these facts and also in view of detailed foregoing discussion, the Court has no hesitation to hold that appellant/plaintiff is unable to show any prima facie case exist in his favour. Regarding the balance of convenience and irreparable loss, both these factors seems to be leaning rather in the favour of the respondent/defendant instead of appellant/plaintiff. Reliance is placed upon Balbir Singh Wasu v. Prabandhak Committee Gurudwara Sahab Patsahi, AIR 2001 P&H 49. Accordingly, the appeal filed by the appellant/plaintiff is hereby dismissed. The order passed by the Learned Trial Court suffers from no infirmity or illegality for which the same should be set aside. Hence, the impugned order dated 03.01.2023 is hereby upheld including it's findings on the application of respondent/defendant number 5 and 6 under Order XXXIX Rule 4 CPC.
13. Copy of this judgment be sent along with Trial Court Records.
14. Appeal file be consigned to Record Room, after necessary compliance.
(Manu Vedwan) Addl. District Judge-02(NE)-01 Karkardooma Courts, Delhi.
Announced in the open court today i.e. 03rd August, 2023 MCA No. 05/2023 Vaseem Saifi Vs. Municipal Corporation of Delhi & Ors. Page No. 18 of 18