Delhi District Court
). Vide This Order I Shall Dispose Off An ... vs . on 17 April, 2013
IN THE COURT OF MS. KADAMBARI, CIVIL JUDGE-18 (CENTRAL),
ROOM NO.231, TIS HAZARI COURTS, DELHI.
CS No. 116/12
VIDYA WATI AND ORS
Vs.
MOHD. ZAKIR & ORS.
17.04.2013
ORDER
1). Vide this order I shall dispose off an application U/Or. 39 Rule 1 & 2 CPC moved on behalf of plaintiff.
2). Chiefly, it is contended on behalf of plaintiff that father of the plaintiff came into the suit property bearing No. 6079 (Old), 5375 (New, Ward No. XIII, situated at Sarai Hafiz Banna, Gali Peti Wali, New Market, Sadar Bazar, Delhi-6. as a tenant in 1950 and he remained in the aforesaid property and in effective possession and one Ratan Lal was the landlord of the suit property. In the year 1987, the father of the plaintiff purchased the aforesaid property as shown in the red colour of the site plan by paying full and final consideration of amount to the said Rattan Lal by GPA, agreement to sell, affidavit, receipt etc. dt. 23.01.1987. Thereafter, father of the plaintiff was in settled and effective and undisturb possession of suit property.
3). It is also submitted that father of plaintiff Sh. Jeevan Chand had executed Will dated 04.06.1991 in respect of above said suit property in favour of plaintiff and one of their brother namely Mohan Lal. The father of the plaintiff expired in 1992. It is also submitted that when the plaintiff white getting white wash on Page 1 the first floor of the suit property on 30.06.2012, found material document i.e. GPA, Agreement to Sell, Receipt and also found the Will dt. 04.06.1991, and by virtue of the said Will dt. 04.06.1991, the plaintiff and their brother Mohan Lal became the joint owner and in possession of the suit property. It is further submitted that the plaintiffs have been in settled and effective and undisturb lawful possession of the suit property as joint owners.
4). It is further submitted by the plaintiffs that defendants are having evil eyes on the suit property and they are bent upon to grab the suit property and the defendants filed a false and frivolous for damages, mandatory injunctions, mesne profits etc., which is pending in the Court of Sh. N.K. Malhotra, ASCJ, Delhi without impleading the plaintiffs as a party in the suit intentionally and knowingly.
5). It is further submitted that the plaintiff came to know about the pendency of the above stated suit in April-2011, when the MCD official came to the suit property and demolished the part of the suit property and thereafter again on 04.07.2012 and 05.07.2012 MCD Official visited the suit property and threatened to further demolished the suit property.
6). The plaintiff moved an application U/Or. 1 Rule 10 CPC in the above stated suit to become a party, however, the same has been disposed off by the Court. It is further submitted that on 29.10.2012 at about 9 pm the defendant along with 3-4 other persons came to the suit property, they abused, misbehaved and threatened the plaintiff to vacate the suit property and they further threatened to dispossess the plaintiff from the suit property. Again on 30.10.2012 the Page 2 defendant trying to dispossess the plaintiff from the suit property by throwing the house hold goods of the plaintiff but due to the intervention of the neighbours they could not succeeded in their aim but the defendant left the spot with threatening the plaintiff that they will come again and dispossess the plaintiff from the suit property forcibly and illegally.
7). It is further stated that on this the plaintiff went to lodge a report to local police but police had not register the report and the plaintiff were advised to go to Civil Court for an appropriate relief.
8). It is submitted that plaintiff has good prima-face case in their favour and against the defendant. It is also submitted that balance of convenience lies in favour of plaintiff and against the defendant. It is also submitted that plaintiff have not other efficacious remedy against defendant and if the injunction is not granted, the plaintiff would suffer irreparable loss and injury, which can not be compensated in terms of money. A prayer is made to pass interim injunction in favour of plaintiff and against the defendant, restraining the defendants etc , from dispossessing the plaintiff from suit property property No. 5375, Gali Peti Wali, New Market, Sadar Bazar, Delhi as shown in red colour in the site plan attached, forcibly or illegally, till the final disposal of the suit.
9). Arguments were addressed straightaway on the application filed by the plaintiff on the part of defendants. It is submitted that suit of plaintiff is not maintainable as it suffers various legal defects. It is also submitted that plaintiff has filed a suit seeking a decree of declaration of their purported title to the premises in reference as well as a consequential relief of injunction in Page 3 respect of the movable property namely 5375, Gali Peti Wali, New Market, Sadar Bazar, Delhi. It is also submitted that the suit of plaintiff is beyond the jurisdiction of the present Court as the same is not properly valued for the purpose of Court Fee and jurisdiction.
10). It is further submitted submitted that plaintiff jointly as well as severally, are guilty not only of suppresio veri but also suggestio falsi. It is also submitted that they have not approached the Court with clean hands and the present suit is an attempt of over-reach the lawful order of a Court and that too on false, frivolous, concocted, vexatious and / or mischievous pleas and allegations. It is further submitted that this action deserves to be thrown out at once with exemplary costs being awarded to Defendant No. 1 to 3 against the plaintiffs.
11). It is also submitted that Sh. Parshottam Kumar and Sh. Ashok Kumar being the sons of late Sh. Jiwan Chand (and consequently the brothers of the present plaintiffs) had instituted a suit seeking a relief of declaration and consequential relief of injunction in respect of the property bearing No. 5375/XIII, Gali Peti Wali, New Market, Sadar Bazar, Delhi-6. The defendant to this action were the Municipal Corporation of Delhi and the three defendants herein, namely, the natural heirs and legal representatives of the admitted owner- landlord Hafiz Mohd. Sami (deceased) etc. It was pointed out that in the case said action was barred by law as the order of demolition in respect of the movable property bearing No. 5375, Gali Peti Wali, New Market, Sadar Bazar, Delhi -6, had already been passed by the competent authorities, long Page 4 ago.
12). In view of the same the above said suit was unconditionally withdrawn by the plaintiffs, namely, the brothers of the present plaintiffs on 03.03.2012. It is also submitted that the present suit is manifestly and abuse of the process of law and also the suit is barred by constructive res-judicata and Order 23 Rule 2 CPC.
13). It is also submitted that plaintiff/ applicant have not been able to produce on record the original documents on the basis of which they have instituted this present suit. It is further submitted that father of the plaintiffs Sh. Jiwan Chand was a Tanga Driver and he was inducted as a tenant in the immovable property at a rental of Rs.11.25 paise by the then co-owner / landlord Hafiz Mohd, Sami S/o of Hafiz Rahim Bakhsh @ Sh. Abdul Wahab. It is further submitted that Sh. Jiwan Chand had executed in favour of then landlord a rent note acknowledging the title of said land but also the rate of rent and the terms of tenancy including the extent of the tenanted premise.
14). All the allegations and averments made by the plaintiff in the application are denied in toto by the defendant and it is further submitted that the plaintiffs has no right, title or interest in the suit property as claimed by them and this action purportedly for an injunction has been instituted for no purpose but thwart the adjudication of the action and or to avoid for as long as possible the demolition action that is now imminent by MCD. It is further submitted that the present suit is apparently being the result of collusion or fraud deserves to be summarily dismissed by the Court.
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15). It is further submitted that the present suit has been moved with concocted story and for no purpose but to try and over reach the Court's Order/ Decree, causing this Court to believe that the plaintiffs jointly /severally are litigating bonafide. It is specifically denied that plaintiff jointly or severally along with their alleged brother have become the joint owner of the property in question by means of any alleged documents at any point of time.
16). It is further submitted that claim of plaintiffs are based on frivolous and manipulated & forged documents which deserve to be dismissed with exemplary cost. All the allegations and averments made by the plaintiffs are denied specifically by the defendants and a prayer is made to dismiss the application with heavy cost.
17). Heard the rival contention of the Ld. Counsel for the parties addressed at length earlier and perused the voluminous material place on record by the parties.
18). It is the case of the plaintiff that since the father of the plaintiff came into the suit property originally as a tenant and later on he has purchased the same from landlord Sh. Rattan Lal vide GPA, Agreement to Sell and Receipt dt. 23.01.1987, hence, the plaintiffs have become the joint owners of the property in question and as they are living in the premises for more than 50 years in undisputed and undisturb possession and their possession may be protected by law.
19). It is also contended that since the defendants are having ill motives towards the plaintiffs and they intend to grab the suit property and that is why Page 6 defendants filed false and frivolous suit in the Court of Sh. N.K. Malhotra, the Ld. ASCJ, Delhi without impleading the plaintiffs as party in the suit. It is also submitted by the plaintiffs that they came to know about the pendency of the suit when the MCD Official came to the suit property for demolishing a part of the suit property. It is also submitted that the defendants are extended threats to the plaintiffs to dispossess from the suit property by throwing their household goods and a such attempt made by the defendant which was averted timely by the intervention of the local people. Plaintiff filed the present suit seeking permanent injunction and the present application has been moved for seeking interim injunction in the present suit. Whereas, it is the case of the defendant that the plaintiff has no locus to file the present suit as they have no title, interest in the suit property. It is also contended that the plaintiff with clever drafting seeking a declaration in grab of injunction with consequential relief in respect of the suit property. It is also contended that the plaintiff has filed the present suit and moved the application seeking injunction with sole aim to circumvent decree passed against the plaintiff for demolishing the part of the suit property in favour of MCD. It is also submitted that all the allegations leveled against the defendants are false, vexatious and mischievous. It is also contended that in a earlier litigation filed by the brother of the present plaintiff in respect of the same suit property, when it is pointed out that the case was time barred and there was a order of demolition in respect of the suit property bearing No. 5375, Gali Peti Wali, New Market, Sadar Bazar, Delhi-6 by the competent authority, the plaintiff unconditionally withdraw the suit. It is also Page 7 submitted that the present suit is hit by the Bar of Constructive resjudicata and moreover, the right of the plaintiffs in the suit would have been representative by their sibling. It is also contended that no original record showing title of the property are brought forth by the plaintiff and since the father of the plaintiff Sh. Jeewan Chand had executed a rent note in favour of the landlord /co-owner Hafiz Mohd. Sami for Rs.11.25 paise have no question arises of purchasing a suit property from 3rd person i.e. Rattan Lal, who is neither the owner of the suit property nor related to the suit property in any manner. He is placed on the contention that the present suit has been filed with the sole motive to overreach the order of the Court and obtaining the stay order which can avert the demolition action of MCD against the suit property.
20). I have gone through the material placed on record by the parties which consist mainly photocopies of various documents i.e. ID of plaintiff along with electricity bills, Adhar Card and certain photocopies filed on behalf of the plaintiff and certain certified and photocopies of proceeding in various litition by the parties, similarly the defendant has also filed chunk of documents which consist various court's proceeding in respect of the suit property by the predecessor in interest of the parties and by the sibling of the plaintiffs against the defendants along with photocopies of rent receipt from the year 1961 to 1984 along with rent note filed as Annexure DC in respect of the suit property executed by Sh. Jeewal Chand in favour of Sh. Hafiz Modh. Sami / mentioned rent deed 02.02.1960 executed between the Late Sh. Jeewan Chand and Hafiz Mohd. Sami.
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21). Various judicial precedents have also been filed by the Ld. Counsel for the parties. Counsel for the plaintiff placed reliance on unreported judgment of Hon'ble High Court of Delhi as CS (OS) No. 1183/2010 titled as Rajendra Nath Gupta Vs. Ravindra Nath Gupta pronounced on 03.01.2011, wherein it has been held that "Once a person is found to be in settled possession of an immovable property, the remedy available to the aggrieved person is to initiate appropriate legal proceedings to re-gain the possession alleged to have been unlawfully obtained from him. A person in settled possession cannot be dispossessed from the property occupied by him except by due process of law".
22). It is also observed by the Hon'ble High Court of Delhi in the same judgment by quoting the judgment of Hon'ble Supreme Court in Rame Gowda Vs. M. Varadappa Naidu & Anr.' (2004) 1 SCC 769, the Supreme Court held that 'settled possession or effective possession of a person without title entitles him to protect his possession even against as a true owner".
23). In case cited by Ld. Counsel for the plaintiff in 2013 (STPL (Web) 98 SC titled as Lakshmi Alias Bhagyalakshmi & Anr. Vs. E. Jaya Ram (D) by Lr., it is observed by the Hon'ble Supreme Court of India that "............... As noticed above the Civil Judge while granting ad-interim injunction very categorically observed in the order that respective rights of the parties shall be decided at the time of final disposal of the suit. The very fact that Plaintiff No. 2 is in possession of the property as a tenant under plaintiff No. 1 and possession of the plaintiff No 2 was not denied, the interim protection was given to plaintiff No. 2 against the Page 9 threatened action of the defendant to evict her without following the due process of law. In our considered opinion, the order passed by the learned single judge can not be sustained in law.............".
24). Whereas, the Ld. Counsel for the plaintiffs also relied on judicial precedents some of that AIR 2000 Supreme Court 2033 titled as Anathula Sudhakar Vs. P. Buchi Reddy (Dead) By L. Rs. & Ors., wherein it has been observed by the Hon'ble Appex Court that:-
"...............position in regard to suits for prohibitory injunction relating to immovable property, is summarised as under:
(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sure for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter............."
It is further observed by the Hon'ble Appex Court that:-
".....................Finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title ............"
25). I have gone through the judicial precedents cited by the Ld. Counsel for the parties with utmost regard and I am of the considered opinion that the case laws cited by the plaintiff in the given circumstances are not applicable and not Page 10 helpful for the case of the plaintiff. It is established principle of law that injunction is discretionary and equitable relief which can not be claimed as a matter of right, but parties seeking relief of injunction must also come in equity. In the present case it is reflected that there have been various litigation in respect of the suit property going on between the parties since long time and in one of such proceeding a demolition order has been passed by a competent Court in respect of the suit property. The claim of the plaintiffs that they have not been made a party to the above stated suit has no merits, since, it is established principle of law that the contention is not only hit by bar constructive res-judicata but also it has been held in various cases by the Hon'ble Appex Court and in AIR 1966 Supreme Court 792 (V 53 C 144) title as N.K. Mohd. Sulaiman Sahib Vs. N.C. Mohd. Ismail Saheb and Ors., it is held that:-
"............. in absence of fraud or collusion or other ground which taint a decree, a decree passed against the person impleaded as heirs binds the estate, even though other persons interested in the estate are not brought on the record.........." .
26). I find substance in the contention of the Ld. Counsel for the defendant and it appears that the plaintiff has no prima-facie case neither any balance of convenience lies in their favour, nor any irreparable loss would be caused to the plaintiff if no injunction would be granted in the present case. Moreover, no relief can be granted by a Court which is initiated to circumvent an order of a competent Court passed against a party. There are rival issue raised by the Page 11 parties in the suit in respect of the title, ownership and rights are concerned, which are liable to be decided after both the parties have been given a chance to adduce evidence on the same. Moreover, it has been observed in a case of Hon'ble Sumpreme Court i.e. AIR 1972 Delhi 84 (V59 C21) titled as Shashi Kapoor, Vs. Subhash Kapoor that:-
"...............Mere possession is not enought o claim issue of an interim injunction for, prima facie lawful possession has got to be established.
27). For the reasons above stated an application in hand is dismissed. Now, come up for admission and denial of documents and framing of issues on 10.07.2013.
Announced in Open Court (KADAMBARI)
today i.e 17.04.2013 at 4 pm CJ-18/CENTRAL/DELHI/17.04.2013
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