Delhi District Court
Sunil Kumar vs Madan Singh Bisht on 10 December, 2013
S. No.176/13
Sunil Kumar Vs Madan Singh Bisht
10.12.2013:
Present : Sh. J.P. Bansal, Ld. Counsel for the plaintiff.
Sh. Yogesh Kumar, Ld. Counsel for the defendants no.1, 2 and 3. None for defendants no.4, 5 and 6.
Reply to the application under Order 26 rule 9 r/w section 151 CPC filed. Copy supplied.
Perusal of the plaint reveals that the plaintiff has averred that an agreement to sell in respect of the suit property had been executed with defendant no.5 and the sale deed had to be executed on 01/10/2013. Further, the plaintiff has alleged that the defendants have prepared forged and fabricated documents of the property of the plaintiff. Prima facie, there is a doubt as to whether the present suit for permanent injunction simplicitor is maintainable as equally efficacious remedy is available to the plaintiff. At this stage, it appears that the plaint is liable to be rejected under Order 7 rule 11
(d) CPC.
Arguments in this regard heard and record perused.
The plaintiff has filed the present suit for permanent injunction thereby seeking the relief that the defendants be restrained from dispossessing the plaintiff from the property situated at Khasra No.80, Mirpur Turk, Gali No.1, C-Block, Chand Bagh, Illaka Shahdara, Delhi ad measuring 100 sq.yards (henceforth referred to as the suit property) and the defendants be further restrained from selling or creating any third party interest in respect of the suit property.
The plaintiff has averred that he and Sh. Ramjeet Singh had purchased the suit property from Sh. Jagdish Sharma on 15/06/2012 by virtue of notorized GPA, Agreement to Sell, Will, Receipt and Possession Letter. It has been stated that on 15/05/2013, the plaintiff and Sh. Ramjeet Singh -2- agreed to sell the suit property to defendant no.5 for a sum of Rs.70 Lacs. On 25/05/2013, the defendant no.5 handed over a sum of Rs.50,000/- as earnest money to the plaintiff. Thereafter, on 01/06/2013, defendant no.5 gave a sum of Rs.6,50,000/- to the plaintiff and executed an Ikrarnama. The date of execution of the sale deed was fixed as 01/10/2013. The plaintiff has alleged that the defendant no.5 in conspiracy with the remaining defendants prepared forged and fabricated documents of the property of the plaintiff. The plaintiff has also alleged that on 13/06/2013, at about 10 AM, the defendants made an attempt to dispossess the plaintiff from the suit property and gave beatings to the plaintiff. In this regard a written complaint was made to PS Gokal Puri. Being aggrieved, the plaintiff has filed the present suit.
Order 7 Rule 11 (d) of CPC, inter-alia, mandates rejection of plaint where the suit appears from the statement in the plaint to be barred by any law. Only the plaint and the documents annexed thereto can be looked into at this stage. Defence of the defendants is not relevant for the purpose of Order 7 Rule 11 of the CPC nor can it be looked into.
In M/s Texem Engineering Vs. M/s. Texcomash Export, 179 (2011) Delhi Law Times 963, it has been held by the Hon'ble High Court of Delhi that "There can be no gainsaying that an application under Order VII Rule 11 of the CPC for rejection of the plaint has to be decided entirely on a perusal of the plaint and documents filed along with it".
In the instant case, the plaintiff has sought the relief of permanent injunction thereby restraining the defendants from selling, disposing off or transferring the suit property and further restraining the defendants from forcibly dispossessing the plaintiff from the suit property.
-3-Section 41(h) of the Specific Relief Act, 1963 provides that an injunction cannot be granted when equally efficacious relief can be obtained by any other usual mode of proceeding except in case of breach of trust.
In the case titled as Anathula Sudhakar Vs. B. Buchi Reddy (Dead) by LRs. IV (2008) SLT 724, the Hon'ble Supreme Court in para no.11 has categorically laid down the principles as to when a mere suit for permanent injunction is maintainable. The same are reproduced hereunder :
"11.1 Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.
11.2 Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, can not seek the relief of injunction simpliciter, without claiming the relief of possession.
11.3 Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction".
Now adverting to the facts of the present case. The plaintiff has claimed himself to be the owner of the suit property by virtue of notorized GPA, Agreement to Sell, Deed of Will, Receipt and Possession Letter, all dated 15/06/2012. The aforesaid documents do not convey any title nor create any interest in an immovable property. Reliance in this regard is placed upon the Judgment titled as "Suraj Lamp & Industries Pvt. Ltd. Vs. State of Haryana & Anr. AIR 2012 SC 206". Moreover, the plaintiff has averred in para no.12 of his plaint that the defendants have created forged -4- and fabricated documents in respect of the suit property. Hence, there has been a denial of title by the defendants which raises a cloud on the title of the plaintiff in respect of the suit property. An action for declaration is the remedy to remove the cloud on the title to the property. In these circumstances, the present case, therefore, falls within the category of cases set-out in Paragraph 11.3 of Anatullah Sudhakar case (Supra) and a suit for injunction simplicitor is, therefore, not maintainable. The plaintiff is required to mandatorily seek declaration of title, as such, the suit is barred by Section 41
(h) of the Specific Relief Act, 1963.
Further, the plaintiff has also stated, in para no.10 and 11 of the plaint, that on 01/06/2013, he had entered into an Agreement to Sell with defendant no.5 and the Sale Deed in respect of the suit property had to be executed in favour of defendant no.5 on 01/10/2013. In the instant case, the plaintiff has the remedy to enforce the agreement dated 01/06/2013 and should have filed a suit for specific performance of the contract. The present suit for permanent injunction restraining the defendants from alienating the suit property has become infructuous after 01/10/2013, when the plaintiff has become entitled to file a suit for specific performance of contract. The plaintiff cannot be allowed to continue with the suit for permanent injunction when the relief for specific performance of the contract under the agreement dated 01/06/2013, on the basis of which the suit for permanent injunction has been filed, has become available to the plaintiff.
The relief of specific performance of contract and declaration would be equally able to produce the result which was intended by the plaintiff, thus, the plaintiff has an equally efficacious remedy available to him. The present suit for permanent injunction simplicitor appears to be barred by Section 41(h) of Specific Relief Act, 1963, accordingly, the plaint is rejected under order 7 Rule 11(d) CPC. No order as to costs.
-5-File be consigned to Record Room.
(SHUCHI LALER) ACJ/ARC (NE)/10.12.2013