Delhi District Court
Smt. Raj Rani Sharma vs Smt. Seema Sharma on 17 September, 2009
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IN THE COURT OF SH. PRASHANT KUMAR CCJ/ARC ROHINI COURTS
DELHI
SUIT No. 09/08
1. Smt. Raj Rani Sharma
W/o. Sh. Inder Bhan Sharma
R/o. BR-16-C, Shalimar Bagh,
New Delhi - 110 088 (PLAINTIFF)
Versus
1. Smt. Seema Sharma
W/o. Sh. Bhim Sen Sharma
R/o. Shop No. - 21, Block - HU,
C.S.C. Pitam Pura,
Delhi - 110 084 (DEFENDANT)
ORDER
1. By way of this Order I shall dispose off one application u/o. 39 Rule 1 & 2 CPC.
The facts of the case narrated by the plaintiff, in brief are as under that:-
Plaintiff is an old age lady, aged about 75 years and the owner of the suit property bearing shop number - 21, Block - HU, C.S.C. Pitam Pura, which was purchased by her for a consideration of Rs. 2,80,000/- on 13.05.1999 and since then she was in peaceful and vacant physical possession of the said shop till 06.09.2006. This shop has been given on rent to a partnership firm of Bhim Sen Sharma. Defendant is the daughter-in-law of plaintiff. Relations of plaintiff with the defendant are not very health and therefore, the plaintiff disowned the defendant alongwith her husband from her movable and immoveable property. Despite that defendant has been disturbing 2 the peaceful life of the plaintiff and has taken the possession of the suit property in question forcefully. Hence, this suit.
2. Defendant in their WS has stated that plaintiff is not the owner of the suit property in question. The husband of defendant Sh. Bhim Sen is the actual owner of the suit property. Defendant's husband had executed a registered will on 11.09.2006 with regard to the suit property in question. It is further stated by the defendant that one FIR U/S. 406/498-A/34 IPC has already been registered against the plaintiff. The plaintiff has concealed the material facts, therefore, the suit of the plaintiff is liable to be dismissed.
3. Arguments heard at length. I have heard the contentions of both the parties. I have also perused the documents filed alongwith the plaint. The counsel for defendant, during arguments, have stated that plaintiff is not the owner of the suit property in question and a complete chain of document is not filed by him. During arguments, the counsel for defendant was asked to show her legal right over the suit property in question and it was asked prima faciely from the counsel for defendant that in what capacity she was having the possession over the suit property in question. During arguments, the counsel for defendant has stated that she is the owner of the suit property in question, being the wife of the son of the plaintiff. The counsel for defendant, however, has not furnished any document/ title deeds in her favour. The counsel for defendant has stated, however, that all the relevant documents are with the plaintiff. The shop in question was originally alloted by the DDA.
4. Before proceeding further, it is important to discuss the scope of Order 39 Rule 1 & 2 CPC. Order 39 Rule 1 & 2 CPC lays down the guiding principals for temporary injunction which is to be granted after considering three essential ingredients:-
(i) Prima Facie case established by the plaintiff.3
(ii) Balance of convenience in the favour of plaintiff.
(iii) The plaintiff shall suffer an irreparable loss which cannot be compensated in terms of money.
The other grounds are also to be considered by granting such reliefs. The relief of injunction is a relief in equity. Where the applicant is guilty of suppressing facts, he is not entitled to any relief. It was observed in "Manish Commercial Ltd. V/s. N.S. Dongra 2001 AIHC 1767".
Another important consideration is that where interim relief has not been claimed by the plaintiff in the main suit, interim injunction beyond the scope of the suit cannot be granted. It was observed in "Sh. Jain Shwetamber Terapanthi V/s. Phundan Singh, (1999) 2SCC 377"
It is further important to mention that injunction is a relief founded on equity. The power to grant or refuse injunction essentially lies in the realm of the discretion of the court. The power therefore has to be exercised with the greatest care, caution and circumspection. The court is required to considered the question of granting or refusal of injunction at the initial stage of the proceedings. It was observed in "Arvind Goyanka V/s. Sushila Devi Tiberwala (2002) 1GLR453 (Gawhati)."
Temporary mandatory injunction is an extra ordinary relief and cannot be granted except in exceptional circumstances. Every filing of plaint alongwith application Order 39 Rule 1 & 2 CPC, does not entitled plaintiff to obtain automatically and temporary injunction. There are equitable consideration, for example the conduct of the applicant, the delay in filing the application which have to be carefully weighed before issuing temporary injunction. It was observed in "Radhey Shyam Nigam V/s. Jyoti Shrivastav (2001) AIHC 3708 (MP)."
5. With regard to the first essential requirement i.e., "Prima Facie Legal Right." the plaintiff has to show that she is the owner of the suit property in question. In this regard she has filed certain documents.
4These documents are perused. Perusal of the record reveals that one convenience deed is filed which bears the name of the allotee as Brij Mohan and one Smt. Manju. One of the document filed by the plaintiff i.e., one receipt which is showing that a sum of Rs. 2,80,000/- were paid by the plaintiff to the allotee of the shop in question. Another document filed by the plaintiff is one Rent Agreement which is executed in between the plaintiff and the son of the plaintiff with regard to the shop in question. The defendant, on the other hand, have not filed any document on record. The defendant, during arguments, has stated that they were disowned by the plaintiff from all her movable and immovable properties. The factum of disowning reflects that disowning can be done by a person who is the owner of the property in question, regarding which the other person is disowned. In these circumstances, therefore, I am of the considered opinion that plaintiff has been able to show her prima facie legal right over the suit property in question, as defendant has not bee able to show any document to the contrary, despite the legal right of the plaintiff over the suit property in question. In the light of these facts and circumstances, the "balance of convenience" is also shown prima faciely by the plaintiff in her favour and the plaintiff has also shown from the record that she shall"suffer an irreparable loss which cannot be quantified in terms of money' if the relief is not granted to her. In the light of these facts and circumstances, I am of the considered opinion that plaintiff has been able to show all the three essential requirement of 39 Rule 1 & 2 CPC, therefore the application is filed by the plaintiff is allowed. Defendant, her associates, assigns, servants, attorney, agents etc. are restrained not to dispose off the suit property or not create any third party interest in the suit property during the pendency of this suit.
It is further important to mention here that the opinion express above shall not lay its impact upon the merits of the main case.
Announced in Open Court (Prashant Kumar)
Dated 17.09.09 CCJ/ARC/ROHINI/
Delhi
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Suit No.: 09/08
17.09.2009 Present: Counsel for Plaintiff.
Counsel for defendant.
Arguments on application u/o. 39 Rule 1 & 2 CPC
are heard. Vide separate order sheet application is decided and allowed. Defendant, her associates, assigns, servants, attorney, agents etc. are restrained not to dispose off the suit property or not create any third party interest in the suit property during the pendency of this suit. At this stage both the parties have stated that the issues may be framed. Admission/ denial of documents is not conducted by them. Pleadings are complete, therefore, following issues are framed as under:-
i.) Whether the plaintiff has not affixed the appropriate Court fees as per the Court Fees Act and suit has not been valued as per the Suit Valuation Act? OPD.
ii.) Whether the plaintiff is not the owner of the shop in question? OPD.
iii.)Whether the plaintiff is entitled for a decree of possession with regard to the suit property bearing shop number - 21, Block - HU, C.S.C. Pitam Pura, Delhi ? OPP.
iv.)Whether the plaintiff is entitled for decree of damages, as prayed for, alongwith the cost? OPP.
v.)Any other relief?
No other issues arises or pressed for, thus, put up for PE for 22.10.09.
List of documents, if any, and list of witness be filed within 15 days from today.
(Prashant Kumar ) CCJ cum ARC Rohini Courts, Delhi 17.09.2009