Delhi District Court
Rajinder Kumar vs . Dinesh Kumar on 15 March, 2013
Rajinder Kumar Vs. Dinesh Kumar
IN THE COURT OF SHRI VIRENDER KUMAR BANSAL : ADDL.
DISTRICT JUDGE (CENTRAL) 08, TIS HAZARI, DELHI
Ex.169/09
Rajinder Kumar
Vs.
Dinesh Kumar
ORDER
1. Vide this order I shall dispose off an application under Order 39 Rule 1 and 2 CPC moved by the objector claiming the relief of delivery of possession of the suit property.
2. The brief facts giving rise to the present application are that Sh.Lakhi Ram, decree holder filed the suit for possession and for recovery of Rs.3,00,351/-against Sh.Dinesh Kumar. In that case Dinesh Kumar was proceeded ex-parte and exparte decree was passed against Dinesh Kumar in respect of property bearing no. 139 (New No.337) Village Srinagar, Delhi as per the site plan. The execution was filed with respect to that judgment and decree. In the execution proceedings the possession was delivered to the DH. After delivery of possession the objections were filed by Sh.Ramesh Kumar under Section 47 read with Order 21 Rule 58 CPC alleging that DH has obtained the decree fraudulently concealing the material facts with malafide and dishonest intention. It is alleged that objector was in possession of the suit Ex. No. 169/09 1 of 6 Rajinder Kumar Vs. Dinesh Kumar property. The DH was also knowing that objector is in possession and are necessary party but still did not make them a party. A civil suit was also filed by the objector bearing no.319/01 which fact has also been concealed. In that case a local commissioner was appointed, who filed the report and the court directed the parties to maintain the status quo. The DH has filed the written statement in that case and stated that he has already disposed off the property involved in the execution proceedings. It is also alleged that earlier he has filed the suit for possession of 50 sq.yards but then got it amended and increased the area to 150 sq.yards alleging that the same is in possession of the JD. However, during the execution he has taken possession of 450 Sq.yards. It is alleged that DH himself has filed a rent agreement alleging that JD is a tenant of 50 sq.yards and how he can increase the area in occupation of JD from 50 sq.yards to 150 sq.yards in the property no.377. It shows that amendment was carried out contrary to the documents. It is prayed that possession be restored to the applicant/objector of the suit property bearing khasra no.30/11, plot no.151-152 situated in Revenue estate of Village Shakurpur, Delhi.
3. Reply was filed by the DH to the objections, wherein they denied the averments made and alleged that all the averments are false. It is alleged that objectors have no locus standi to maintain the objections. It is alleged that the objector has no title in the suit property. Even the objector has also acknowledged the ownership of the decree holder in the suit property. They have no right what so ever in the property and it is alleged that objections are liable to be dismissed.
Ex. No. 169/09 2 of 6 Rajinder Kumar Vs. Dinesh Kumar
4. In this case when the Decree holder obtained the possession, he withdrew the execution and consequently the application was also dismissed and the order was challenged before Hon.High Court and Hon.Mr.Justice Valmiki Mehta vide order dt.17.10.11 remanded it back. Thereafter the file was taken up. The application under Order 39 Rule 1 and 2 CPC was filed.
5. I have heard the Ld.counsels for parties and perused the record.
6. Ld.counsel for objector submitted that it is admitted fact that objector was in possession of the premises in dispute. Objector filed the civil suit titled Fateh Singh Vs. Lakhi Ram alleging that plaintiff has purchased the plot no.151-152 measuring 150 sq.yards and 175 sq.yards respectively out of khasra no.30/11 situated in extended Laldora of Village Shakarpur, Delhi from one Shri Ram and that they have constructed tin shed on the plot no. 151 for teethering the cattle and on the other plot no.152 work shop is being run. Defendant earlier filed the suit that plaintiff no.1 want to take forcible possession of plot no.150 of khasra no.30/11 which was ultimately dismissed. Ld.counsel submitted that in this case the defendant/DH has already admitted the possession. In fact local commissioner was also appointed who has submitted the report and established their possession and therefore, it is established that objectors were in possession. Even the trial court directed the parties to maintain the status quo but the DH Lakhi Ram did not comply with the orders and even did not disclose this fact in the suit. Ld.counsel submitted that in fact DH has himself made a complaint that the objector Fateh Singh and his sons in order to grab the property has delivered the possession to one Sh.Dinesh Kumar but lateron he filed the suit against Dinesh Ex. No. 169/09 3 of 6 Rajinder Kumar Vs. Dinesh Kumar Kumar alleging that he is his tenant which itself shows that the DH has played fraud with the court and has not come to the court with clean hands, suppressed the material facts and even misled the court. In the rent agreement on the basis of which the present suit has been filed, it is mentioned that the tenantancy is of 50 sq.yards. Initially also in the suit the plaintiff has mentioned that suit is for possession of 50 sq.yards but then he moved an amendment application alleging that the area is 150 sq.yards, obtained the decree and under the garb of that decree took the possession of 450 sq.yards area of the objector also. Ld.counsel submitted that as this area has been obtained by the DH by playing fraud and even otherwise this area is of the objector, therefore, he is entitled to get back the possession of the area. Ld.counsel submitted that the possession be restored to him.
7. Ld.counsel for DH submitted that there is no fraud played by him even in the suit filed by the objector herein he has taken the stand that he is not the owner and even today he has not placed on record any document showing that he has any right, title or interest in the property. It was for him to show that he is having any right, title in the property or the owner of the property. The possession has been obtained in execution of a decree. So far as the order of status quo is concerned that order did not stay the execution proceedings and therefore no wrong has been committed by the DH. Ld.counsel submitted that for getting a mandatory injunction a strong primafacie case is required which is not there. Balance of convenience is in favour of the DH who is the owner of the property and is also in possession. No irreparable loss is going to be caused, as if the objector succeed Ex. No. 169/09 4 of 6 Rajinder Kumar Vs. Dinesh Kumar the property can be delivered to him but the DH will suffer irreparable loss if now he is directed to deliver the possession after such a long legal battle. It is prayed that application is without merit and same be dismissed.
8. After hearing the arguments and going through the record, I found that the relief in the objections filed by the objector is to direct the DH to restore the possession to the objector and in the application also the prayer is to restore the possession i.e.the relief claimed is in the form of mandatory injunction.
The Supreme Court of India laid down the guiding principles on the subject in case titled Purshottam Vishandas Raheja v. Shrichand Vishandas Raheja, (2011) 6 SCC 73 = AIR 2011 SC 2151 as follows:
"The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non- contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are :-
(1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction. (2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money. (3) The balance of convenience is in favour of the one seeking such relief.
Ex. No. 169/09 5 of 6 Rajinder Kumar Vs. Dinesh Kumar Being essentially an equitably relief the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the court to be exercised in the light of the facts and circumstances in each case.
Though the above guidelines are neither exhaustive nor complete or absolute rules, and there may be exceptional circumstances needing action, applying them as prerequisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion."
The Supreme Court in another case Kishore Kumar Khaitan v. Praveen Kumar Singh, (2006) 3 SCC 312 held that "An interim mandatory injunction is not a remedy that is easily granted. It is an order that is passed only in circumstances which are clear and the prima facie materials clearly justify a finding that the status quo has been altered by one of the parties to the litigation and the interests of justice demanded that the status quo ante be restored by way of an interim mandatory injunction."
9. Keeping in view these guiding principles in the present case it was for the objector/applicant to satisfy the three conditions i.e.primafacie case, balance of convenience and irreparable loss. In the present case so far as primafacie case is concerned it was for the objector to show that he is having any right in the property to get back the possession. In the earlier suit filed by him against the DH he has alleged that he has purchased it from one Shri Ram but to establish its primafacie case no such documents has been placed on record to show that he is having any right, title or interest in the property to make out the primafacie case or that he was having a rightful possession over the property or right to possess the property. There is history of previous litigation Ex. No. 169/09 6 of 6 Rajinder Kumar Vs. Dinesh Kumar between the parties but the rights of the parties were never crystallized. In the earlier suit also the objector claimed himself to be the owner in possession which was denied by Lakhi Ram and the court only directed the parties to maintain the status quo that also on the basis of the report of the local commissioner. There is also averment with respect to the complaint made by Lakhi Ram to the police alleging that objector herein is trying to deliver the possession to Dinesh Kabadi but despite these facts it was for the objector/applicant to show that he has some right, title in the property to put him in possession or to pass the order of status quo ant, for which strong primafacie case is required but the applicant has not been able to make out such case. No document in this regard has been placed on record. So far as balance of convenience is concerned, it is also in favour of the DH as now he is in possession that also through the process of the court. So far as the allegation of fraud is concerned those are yet to be established. So far as irreparable loss is concerned, admittedly presently decree holder is in possession that also after getting possession in execution. There is nothing on record to show that objector/applicant would suffer any serious injury if possession is not restored immediately which can not be compensated in terms of money.in my opinion when objector/applicant is not having even the primafacie case, there is no need to discuss this issue. If the order of restoration of possession is passed, it will amount to allowing the objections and passing a decree in favour of the objector.
9. Keeping in view all these facts that applicant is not able to show primafacie case and balance of convenience is also not in his Ex. No. 169/09 7 of 6 Rajinder Kumar Vs. Dinesh Kumar favour. The application under Order 39 Rule 1 and 2 CPC is dismissed.
VIRENDER KUMAR BANSAL ADDL.DISTRICT JUDGE-08 CENTRAL, DELHI Announced in open court on 15.03.13.
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