Delhi District Court
Sh. Sunil Kumar vs Kulbhushan Kumar Sareen on 24 September, 2014
IN THE COURT OF SHRI A.K. AGRAWAL CIVIL JUDGE01 ( WEST),
TIS HAZARI COURTS, DELHI
C.S No. : 261/2014
Sh. Sunil Kumar
................Plaintiff
Vs.
Kulbhushan Kumar Sareen
........... Defendant
ORDER
24.09.2014 Vide this order I shall dispose of the application under Order XXXIX Rule 1 and 2 filed on behalf of plaintiff.
1. Briefly the facts of the case are that the plaintiff and defendant are real brothers. Plaintiff claims that his father Late Sh. Panna Lal Sareen had purchased one flat bearing No.DF14/BC and LIG CGHS Ltd., A4, Paschim Vihar, New Delhi (henceforth referred to as the suit property) which was on lease hold, from original allottee, Sh. V. K. Gupta. The father of plaintiff expired on 01.05.2011 and left behind six legal heirs including plaintiff, the defendant (elder brother of plaintiff) and other persons. CS No.261/2014 1/5
2. Plaintiff further states that for a long time, the father of defendant did not pay the installments of the above flat to Delhi Cooperative Housing Finance Corporation Ltd., (DCHFC Ltd.) and accordingly an attachment order dated 31.01.2013 of the suit property, was issued by the concerned recovery officer. After issuance of attachment order, the defendant who was residing adjacent to the suit property, asked all the legal heirs including the plaintiff to pay their respective shares of defaulted amount. Thereafter, all the legal heirs paid their respective shares and the plaintiff also paid total Rs.1,00,554/ as his share of the defaulted amount to the DCHFC Ltd, through cheque. Accordingly, the attachment order of the property was stayed. However, the original documents of the said property were in the possession of defendant and when the plaintiff asked the defendant to give a photocopy of the same, the defendant refused. Thereafter, the plaintiff realised that the intention of defendant was malafide and he intended to sell the suit property.
3. The plaintiff has further stated that the defendant has also grabbed entire gold belonging to the plaintiff, parental gold, Cash, other documents, including the title documents of the suit property, which were lying in the almirah of the suit property at the time of death of their father. The plaintiff further states that defendant has already initiated process for selling the suit property, hence the present suit has been filed by the plaintiff to restrain the defendant from the doing so and also to hand over the photocopy of documents of the suit property.
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4. In his WS, the defendant has stated that no cause of action accrues in favour of the defendant. The pecuniary jurisdiction also does not lie with this court as the value of suit property is more than 20 lacs. It is further stated that by way of present suit the plaintiff is seeking declaration of his share in the suit property without paying appropriate court fees. It is further stated that the copies of documents of the property are not lying with the defendant and so, no question of handing over the same to the plaintiff, arises. It was further denied that defendant intended to sell the suit property. Other averments in the plaint were also denied.
5. Replication to the WS was filed by the plaintiff wherein the contents of plaint were reaffirmed and the averments in the WS were denied.
6. Vide present application under order XXXIX Rule 1 and 2 CPC, the plaintiff is seeking interim injunction whereby the defendant is restrained from creating any third party interest in the suit property. Reply of the said application was filed by the defendant and prayer was made for dismissal of the application.
7. I have heard arguments advanced by the Ld. counsels for both the parties and carefully perused the record. The law is well settled regarding the grant of interim injunction. In order to succeed the applicant has to prove three basic ingredients :
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1. existence of prima facie case.
2. balance of convenience
3. irreparable injury
8. In Shiv Kumar Chadha Etc. Etc vs Municipal Corporation Of Delhi 1993 SCC (3) 161, it has been observed and held by the Hon'ble Supreme Court that: "It has been pointed out repeatedly that a party is not entitled to an order of injunction as a matter of right or course., Grant of injunction is within the discretion of the Court and such discretion is to be exercised in favour of the plaintiff only if it is proved to the satisfaction of the Court that unless the defendant is restrained by an order of injunction, an irreparable loss or damage will be caused to the plaintiff during the pendency of the suit. The purpose of temporary injunction is, thus, to maintain the status quo. The Court grants such relief according to the legal principlesex debite justitiae. Before any such order is passed the Court must be satisfied that a strong primafacie case has been made out by the plaintiff including on the question of maintainability of the suit and the balance of convenience is in his favour and refusal of injunction would cause irreparable injury to him."
9. Coming to the facts of the case, the prima facie case is in favour of the plaintiff as the property is admittedly in the name of the father of both the parties and not in the name of defendant. The defendant does not have exclusive right to the property. The balance of convenience also lies in favour CS No.261/2014 4/5 of restraining the defendant from disposing off the suit property. Infact the defendant has himself stated that he does not intend to dispose off the suit property. Moreover, if the property is disposed off by the defendant, than irreparable injury would be caused to plaintiff which cannot be compensated in monetary terms. So the requirements of balance of convenience as well as irreparable injury also lies in favour of the plaintiff.
10. Accordingly, in view of my aforesaid observations, the present application stands allowed. The defendant is hereby restrained from creating any third party interest in the suit property.
It is however clarified that nothing mentioned herein above shall tantamount to be an expression of opinion on the merits of the case.
Announced in the open court ( A.K. Agrawal)
today on 24.09.2014 Civil Judge 01 ( West)/Delhi
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