Delhi District Court
S. Harjinder Singh vs Sh. Praveen Kumar on 17 March, 2018
IN THE COURT OF MS. MANJUSHA WADHWA
ADJ 04 (WEST), TIS HAZARI COURTS, DELHI
MCA DJ No. 41/2017
1. S. Harjinder Singh
2. S. Tajinder Singh @ Vicky
S/o late Sh. S. Mahender Singh
At : 17/19A, Near Zakhira Flyover
New Rohtak Road
Anand Parbat Industrial Area
New Delhi. ........Appellant
versus
Sh. Praveen Kumar
S/o Shri Sewa Ram
R/o H.No. 16/1319, East Bapa Nagar
Karol Bagh, New Delhi 5. ......Respondent
Date of Filing Appeal : 09.06.2017 Date of Reserving Judgment : 13.02.2018 Date of Judgment : 17.03.2018 O R D E R
1. This is an appeal under Order 43 Rule 1 (r) of CPC, 1908 against the impugned order dated 23.05.2017 passed by Ld. Civil Judge01, West District, Tis Hazari Courts, Delhi in suit bearing no 609554/2016 titled as "Praveen Kumar vs. Harjinder Singh & ors.", whereby the application filed under Order XXXIX Rule 1 & 2 read with Section 151 CPC filed by the respondent / plaintiff was allowed.
MCA DJ No.41/17 S. Harjinder Singh vs. Praveen Kumar Page 1 of 72. According per the Respondent/plaintiff, he is the owner of the property bearing No. 17/19/A, Near Zakhira Flyover, New Rohtak Road, Anand Parbat Industrial Area, New Delhi as shown in site plan forming part of khasra no. 605/364, situated in the revenue estate of VillageChowkri, Mubarkabad (hereinafter referred to as the "suit property"), whereas, as per the Appellant/defendant, his father, Sh. Mahender Singh was true and lawful owner of the suit property and the title documents in respect of suit property were lost for which NCR No. 1255/13 was lodged on 20.03.2013 at Police Station Rajouri Garden, New Delhi.
3. According to the respondent/plaintiff, he had purchased the suit property in his name on 28.03.1988 from Mehant Jagannath (since deceased) and had raised construction on the said piece of land and started commercial activities. The respondent/plaintiff also got sanctioned and installed electricity connection from the defendant no.
3. According to the respondent / plaintiff, one Sh. Mahender Singh approached for grant of tenancy of the ground floor of the suit property and accordingly, father of the plaintiff let out the ground floor of the suit property on 11.11.1992 at a monthly rent of Rs.3,000/ per month as per rent agreement to S. Mahender Singh i.e. father of the defendant nos. 1 & 2. The respondent / plaintiff also pleaded that a sum of Rs. 1,20,000/ was taken as advance rent / security from the tenant, S. Mahender Singh, out of which Rs. 80,000/ was adjustable @ Rs. 2,000/ per month for 40 months and accordingly, till the adjustment of Rs. 80,000/, the monthly rent payable was Rs. 1,000/ PM and Rs.
MCA DJ No.41/17 S. Harjinder Singh vs. Praveen Kumar Page 2 of 740,000/ as interest free deposit of S. Mahender Singh with the plaintiff. According to the plaintiff / respondent, after adjustment of Rs. 80,000/, monthly rent of Rs. 3,000/ was payable w.e.f. 11.04.1996.
4. The respondent pleaded that on 10.09.2014, he went to the office of the appellants/defendant nos. 1 & 2 for collecting rent and came to know that they had got sanctioned and installed new electricity connection for commercial use in the suit property of the respondent/plaintiff in collusion with some officials of the defendant no. 3 by submitting GPA etc executed by S. Mahender Singh in favour of the defendant nos. 1 & 2 with fictitious particulars by mentioning wrong Khasra number 21/09 in place of 605/364 and got sanctioned as well as installed electricity connection without clearing the electricity charges.
5. According to the respondent / plaintiff, S. Mahender Singh is claiming ownership on the basis of GPA dated 01.10.2004 executed by Sh. Devender Singh in respect of portion of premises no. 17/19A measuring 200 sq. yds out of khasra no. 21/9, though there was no khasra number 21/9 in the area, hence, the plaintiff / respondent filed the present suit for relief of mandatory and permanent injunction as well as declaring the documents executed by Sh. Devender Singh in favour of S. Mahender Singh as null and void.
6. The appellants/defendants did not file the written statement on time and vide order dated 01.06.2016, passed by Ld. Trial Court, MCA DJ No.41/17 S. Harjinder Singh vs. Praveen Kumar Page 3 of 7 opportunity of the Appellants/defendants no. 1 and 2 to file the written statement was closed.
7. By way of present appeal, the Appellants/defendants no. 1 and 2 have prayed for setting aside of order dated 23.05.2017 passed by the learned trial court on the instant application under Order XXXIX Rule 1 & 2 CPC. The appellants have urged that no right, title or interest is conferred on the respondent/plaintiff on the basis of notarized title documents. It is also urged by the appellants that the photocopies of the rent agreement and rent receipts filed alongwith the plaint are forged and fabricated documents. It is the contention of the appellants that the number of the property mentioned in rent receipt bearing no. 3703 is 17/18/1 and on rent receipt bearing no.134 dated 13.01.1984 as well as on rent receipt no. 303 dated 15.07.1984 is 17/19, however, respondent / plaintiff has mentioned the number of the property in the plaint as 17/19/A.
8. It is further urged by the appellants that the respondent/plaintiff has mentioned Khasra number as 605/364 in the plaint, whereas, Khasra number is mentioned as 605/364, 601/362 in all the notarized documents i.e. GPA, Agreement to Sell, receipt, affidavit all dated 28.03.1988. The Appellants further contended that they had addressed oral arguments before the learned trial court that they had filed RTI in respect of the land in the name of Sh. Sewa Ram and sought information vide reply dated 02.02.2017 that M/S Sewa Ram Automobiles through its proprietor, Sh. Sewa Ram, S/o Sh. Ram Lal MCA DJ No.41/17 S. Harjinder Singh vs. Praveen Kumar Page 4 of 7 was allotted Plot No.1, BlockBC, Mangolpuri Industrial Area, Phase II, New Delhi admeasuring 120 sq. meter in lieu of old site bearing no. 17/18/A, Daya Basti, New Rohtak Road, New Delhi. As per the reply, the plot in Mangolpuri Industrial Area was allotted to M/s Sewa Ram Automobiles under the scheme shifting of industries from non conforming to conforming area.
9. The aforesaid contentions were refuted by ld. Counsel for the respondent/plaintiff. He argued that as the appellants have not filed written statement /documents, so, the appellants have no defence in the instant suit.
10. Heard ld. Counsel for the parties and perused the record.
11. The learned trial court has considered the aspect of notarized documents and the ownership of the respondent/plaintiff in the impugned order dated 23.05.2017. The relevant observation of the ld. Trial court in the impugned order dated 23.05.2017 is reproduced as : " The law is well settled that no person can become the owner of any immovable property on the basis of aforesaid notarized documents. So the plaintiff cannot be considered to be the lawful owner of the suit property. Though at the same time since he alleges that he had also paid consideration amount for the suit property to the earlier owner, Sh. Jagannath. Hence plaintiff does have same right and interest in the suit property though subject to proof of his contention. Plaintiff would still be required to prove his title as per law incase he wants to be declared himself as owner of the suit property. However at the same time since no such document in rebuttal has been filed by defendant MCA DJ No.41/17 S. Harjinder Singh vs. Praveen Kumar Page 5 of 7 no.1 and 2 that they are owner of the suit property, under such circumstances, prima facie case is in favour of plaintiff for granting interim relief.
Balance of convenience and requirement of irreparable loss also lies in favour of the plaintiff since prejudice would be caused to the plaintiff, incase defendant no.1 and 2 create or attempt to create any third party interest in the suit property during pendency of present litigation. Furthermore, no prejudice would be caused to defendant no. 1 and 2 incase the status quo of the suit property as it exists as on date, is maintained till the pendency of the litigation. Further suit property being an immovable property, irreparable injury would be caused to the plaintiff which cannot be compensated in monetary terms incase any third party interest is created by the defendant. Hence in the aforesaid case, all the three ingredients for granting interim injunction is satisfied.
In view of the above facts and in the interest of justice, present application is allowed. Defendant no.1 and 2 are restrained from selling, transferring, alienating or creating third party interest in the suit property till the final disposal of the suit. "
12. In so far as other contention of the appellants regarding forged and fabricated rent receipts by the respondent / plaintiff is concerned, the said plea is disputed question of fact, and therefore cannot be considered at the stage of deciding application under Order XXXIX Rule 1 & 2 CPC.
13. Further, the contention of the appellants disputing the ownership of the respondent/plaintiff with respect to the suit property, on the basis of RTI information or otherwise is not legally sustainable at this stage as the learned trial court has already observed that the respondent/plaintiff would be required to prove his title as per law, in case, he wants to MCA DJ No.41/17 S. Harjinder Singh vs. Praveen Kumar Page 6 of 7 declare himself as owner of the suit property.
14. The Hon'ble Apex Court in Cadila Health Care Ltd. v. Cadila Pharmaceuticals 2001 (5) SCC 73 observed as: "16. The ratio of the above noted judgments is that once the court of first instance exercises its discretion to grant or refuse to grant relief of temporary injunction and the said exercise of discretion is based upon objective consideration of the material placed before the court and is supported by cogent reasons, the appellate court will be loath to interfere simply because on a de novo consideration of the matter it is possible for the appellate court to form a different opinion on the issues of prima facie case, balance of convenience, irreparable injury and equity."
15. Therefore, if trial court has exercised its judicial discretion properly, such order cannot be interfered with in appeal merely because there can be an alternate view. The learned trial court has given plausible reasons while exercising discretion under order XXXIX Rule 1 and 2 CPC and the same does not require any interference by this court, more so, when the written statement of the appellants/defendant nos. 1 and 2 is not on record. In view thereof, there is no merit in the appeal and is accordingly dismissed. Appeal file be consigned to Record Room.
16. Trial court record be sent back alongwith copy of this order.
Announced in the open court (Manjusha Wadhwa)
th
on 17 March, 2018 Addl. District Judge04 (West)
Tis Hazari Courts,Delhi
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