Delhi District Court
Rajesh Kumar vs . Ravi Kumar & Ors. on 24 May, 2017
1
IN THE COURT OF SH. PRITAM SINGH, ADJ-04, SOUTH
DISTRICT, SAKET COURT, NEW DELHI
Civil Suit No. 8831/16
Rajesh Kumar vs. Ravi Kumar & Ors.
24.05.2017
ORDER
1. By this order I shall dispose of the application under order 39 Rule 1 and 2 CPC filed on behalf of the plaintiff.
2. The brief facts of the case are that plaintiff is son of defendant no. 1 and brother of defendant no. 2. Defendant no. 3 and 4 are sisters of the plaintiff. The built up property bearing no. F 371, Dakshin Puri, New Delhi admeasuring 22.5 sq. yds., consisting of ground, first, second and third floor, hereinafter referred to as the suit property was owned by Smt. Indirawati Devi, mother of the plaintiff. The plaintiff being the eldest son of the family contributed in getting the suit property constructed. Smt. Indirawati mother of the plaintiff expired on 12.07.2016 intestate. She was survived by the plaintiff and defendants as her legal heirs. The plaintiff earlier was residing in the suit property and on 12.02.2015 he was alloted a government accommodation at Pushp Vihar, Saket, New Delhi, therefore he left the suit property but all his furnitures/ day to day articles, Almira, jewelry of his wife, cloths etc. were remained at the first floor of the suit property and he put lock there. 2 After death of the mother of the plaintiff, the plaintiff visited the suit property but the defendant no. 2 blocked the way of the plaintiff and misbehaved with him. The plaintiff made a complaint to the police but no action was taken. The plaintiff again visited the suit property in the first week of August 2015 and on 14.08.2015 and requested the defendant no. 1 and 2 for partition but they threatened him. It is further stated that the defendants want to sell the suit property in order to grab the share of the plaintiff and property dealers are visiting at the suit property. It is prayed that the defendants be restrained from parting with possession of the suit property or creating third party interest in the suit property.
3. In reply to the application, it is stated on behalf of defendant no. 1 that Smt. Indirawati during her lifetime had transferred the suit property in favour of defendant no. 1 by executing GPA and Will dated 28.07.1997 and the same was registered in the Office of Sub Registrar-V New Delhi on 31.07.1997. It is further stated that the plaintiff was debarred by defendant no. 1 and his wife Smt. Indirawati, vide a public notice dated 17.11.2004, published in Indian Express, newspaper. It is further stated that the plaintiff has no share and interest in the suit property and the suit property belongs to defendant no. 2 only. It is denied that plaintiff had contributed in the construction of the suit property or his 3 articles lying in the suit property.
4. In reply to the application, it is stated on behalf of defendant no. 2 that the suit property is in possession and occupation of defendant no. 1. The plaintiff and defendant no. 2 were debarred by Smt. Indirawati by virtue of order dated 24.11.2004. It is denied that plaintiff has any share in the suit property. Similar reply was filed on behalf of defendant no. 3 and 4.
5. Arguments heard. Record perused and considered.
6. Ld. Counsel for defendant relied upon following rulings:
(i) Harish Chand Tandon vs. Darpan Tandon & Anr., CS(OS) 1738/2013, dated of decision 23.09.2015 (High Court of Delhi).
(ii) Sachin & Anr. vs. Jhabbu Lal & Anr., RSA 136/2016 & CM No. 19123/2016, dated of decision 24.11.2016 (High Court of Delhi).
7. It is well settled law that the party seeking the relief of ad interim relief of injunction under Order 39 Rule 1 and 2 CPC has to satisfy the court that the prima facie case, balance of convenience and irreparable loss lie in his or her favour. It is not in dispute that the suit property was owned by late Smt. Indirawati. It is also not in dispute that 4 the plaintiff is son of late Smt. Indirawati. According to the defendants, the plaintiff was debarred/disowned by late Smt. Indirawati during her lifetime vide public notice dated 24.11.2004, published in the newspaper, Indian Express. According to defendant no. 1, late Smt. Indirawati had transferred the suit property in his favour being his wife, vide registered GPA and Will. Whether the plaintiff was disowned by late Smt. Indirawati or whether the suit property was transferred in favour of defendant no.1 by late Smt. Indirawati are matter of trial. Thus, the prima facie case lie in favour of the plaintiff and against the defendants. If during the pendency of the suit, the defendants sell the suit property it will not only cause irreparable loss and injury to the plaintiff but also lead to multiplicity of litigation. It is also important to mention here that the present suit is for partition and the plaintiff is seeking his share in the suit property. Till the disposal of the suit, the subject matter of the suit i.e. suit property needs to be preserved and protected. Hence, the ingredients of balance of convenience and irreparable injury also lie in favour of the plaintiff.
8. The ruling Harish Chand Tandon vs. Darpan Tandon & Anr. (Supra), relied upon by the Ld. Counsel for defendants is not applicable to the facts of the present case as in the said ruling, father had filed a suit 5 for mandatory injunction and damages seeking the removal of his son and his daughter-in-law from the property, owned by him. The Hon'ble High Court of Delhi, decreed the suit under Order 12 Rue 6 CPC and Order 8 Rule 10 CPC. In the case in hand, the son is seeking his share in the property owned by his mother and there is apprehension that the suit property is going to be sold by the defendants.
9. The ruling Sachin & Anr. vs. Jhabbu Lal & Anr. (Supra), is also not applicable to the facts of the present case as in said ruling, the appellant was directed to pay maintenance to his parents/respondents by the Ld. Trial Court and order was upheld by the Hon'ble High Court of Delhi. This ruling is also not dealing with order 39 Rule 1 and 2 CPC.
10. In view of the above discussions, the defendants are restrained from parting with the possession of the suit property or creating third party interest in the suit property till disposal of the suit. The instant application is allowed accordingly.
11. Nothing expressed above shall be construed on the merits of the case.
Announced in the Open Court. (PRITAM SINGH)
Dated : 24.05.2017 ADJ-04, South District
Saket Court, New Delhi