Delhi District Court
Vijay Laxmi vs . Laxmi Narayan & Ors. on 18 April, 2013
1
IN THE COURT OF SHRI MUKESH KUMAR GUPTA:
ADDITIONAL DISTRICT JUDGE06: CENTRAL: DELHI
CS No. 314/09/08
Vijay Laxmi Vs. Laxmi Narayan & Ors.
18.04.2013
Present : Sh. S. B. Tripathi, Ld. Counsel for plaintiff/applicant.
ORDER :
1. By way of the present order, I shall conscientiously decide the application under order XXVI Rule 9 read with order XXXIX Rule 1 & 2 CPC and section 151 CPC moved on behalf of plaintiff on 05.04.2013. In the application under disposal, the applicant/plaintiff has prayed for two reliefs, one for appointment of Local Commissioner and the other for directing the parties to maintain a status quo in respect of the possession as also the structure of the suit property in question.
2. The facts relevant for disposal of the instant case are that the plaintiff filed a suit for partition in respect of the property bearing no. WZ258, Harijan Colony, Tilak Vihar, New Delhi, admeasuring 240 sq. yds, (hereinafter called the 'suit property') thereby claiming 1/6th share in the same. Other reliefs of the declaration, permanent and mandatory CS No. 314/09/08 Vijay Laxmi Vs. Laxmi Narayan 1/6 2 injunction have also been prayed. The defendants filed their respective written statement. However, the written statement on behalf of defendant no. 3 to 5 has been filed jointly while defendant no. 6 have not been filed any written statement on record. It so happened that in between the defendants no. 3 to 5 were also proceeded exparte which order was later setaside by Ld. Predecessor of this court vide order dated 01.04.2009. The defence of defendant no. 6 was also struck off in between. Vide order dated 04.07.2011 of Ld. Predecessor of this court, issues were settled whereafter which the matter was listed for evidence and in between on 28.01.2013, the plaintiff moved an application under order XXXIX Rule 1 & 2 CPC claiming that defendant no. 6 is carrying on large scale construction in the suit property besides showing an apprehension that defendant no. 6 is likely to dispose of a part of the suit property. The matter was thereafter listed for arguments on 14.05.2013. In between application for preponement under section 151 CPC was moved by the plaintiff on 05.04.2013 and again on 08.04.2013 under order 39 Rule 1 & 2 CPC seeking a relief of status quo.
3. This court vide order dated 11.04.2013 appointed the Local Commissioner to inspect the suit property in question and to report about the factum of alleged construction being carried out by defendant no. 6. The Ld. Local Commissioner has also filed his report on 17.04.2013. Ld. Counsel for plaintiff CS No. 314/09/08 Vijay Laxmi Vs. Laxmi Narayan 2/6 3 vehemently pressed upon the application for grant of status quo. Accordingly, the same was heard by this court.
4. I have heard Ld. Counsel for the plaintiff and perused the entire record including the inspection report and the application of the wife of defendant no. 6 filed on record informing the court that defendant no. 6 is hospitalized.
5. First and foremost in order to obtain an exparte ad interim injunction, the plaintiff has to satisfy the court about existence of the trinity principles of strong primafacie case, balance of convenience and irreparable loss and injury. The principles have been explained by the Hon'ble High Court and Supreme Court in the catena of judgments which needs no reproduction herein, however, in International Hotels Ltd. Vs. NDMC AIR 2001 Delhi 425 has culled out principles as under :
1. Plaintiff has a prima facie case to go for trial.
2. Protection is necessary from that species of injury known as irreparable loss before his legal right can be established.
3. That the mischief of inconvenience is likely to arrive from withholding injunction will be greater that what it is likely to arise from grant of it.
6. In the instant case, it may be seen that the plaintiff has claimed that large scale unauthorized construction is being CS No. 314/09/08 Vijay Laxmi Vs. Laxmi Narayan 3/6 4 carried out by defendant no. 6 in the suit premises bearing no. WZ258, Harijan Colony, Tilak Vihar, New Delhi. It has been further claimed that there is a strong apprehension that defendant no. 6 is likely to create a third party interest by parting in the possession of suit property. In this regard, it may be seen that the plaintiff has claimed the relief of status quo in respect of possession and the physical structure of the property subject matter of the partitioned suit. In this regard, if the court considers the question of physical structure of suit property subject matter of the suit, it is interesting to note here that the Ld. Local Commissioner in his report has categorically stated that there has been no running or fresh construction going on in the suit property. He has filed photographs to this extent. This Local Commissioner was appointed by the court at the request of the plaintiff himself and till date no objection to the Local Commissioner report has been filed by the plaintiff. Once, it has come on record that no construction is going on, the apprehension of the plaintiff, the defendant no. 6 shall carry out a construction appears to be misconceived. In any case, it is a settled preposition of law that in a partition suit, a coowner of the property cannot be restrained from carrying out construction in the suit property which he otherwise does as one of the owners of the property and if any stage improvement is made in the suit property by construction, the same is to be divided amongst all the coowners at the time of final decision of the CS No. 314/09/08 Vijay Laxmi Vs. Laxmi Narayan 4/6 5 suit. The Hon'ble Apex Court has been even categoric that in such eventuality more particularly in a partition suit, one co owner cannot seek a restraint against the other coowner. In so far as the question of construction in the suit property, subject matter of the partitioned suit is concerned and to that extent, the plaintiff has not been able to satisfy the requirement of existence of strong primafacie case in his favour.
7. Now adverting to the question of creation of a third party interest in the subject property which as per the plaintiff, she is apprehending in the hands of defendant no. 6. In this regard, it may be seen that the defence of defendant no. 6 has already been struck off and even if the case of the plaintiff is for partition is taken before trial, the defendant has not claimed any independent right dehors the right of the plaintiff. Even, otherwise, it is a settled preposition of law that injunction is an appropriate relief when the same is meant to prevent multiplicity of litigation between the parties. In this case, if the defendant no. 6 at this stage, is not restraint from creation of a third party right or interest of the suit property, the same shall automatically lead to multiplicity of litigation between them and to that extent the plaintiff has able to satisfy the court about existence of a strong primafacie case in her favour. The balance of convenience also tilts in favour of the plaintiff and against the CS No. 314/09/08 Vijay Laxmi Vs. Laxmi Narayan 5/6 6 defendant no. 6 who is likely to be create a third party interest in the suit property. The question of irreparable loss and injury that cannot be compensated in terms of money, also exists in the facts and circumstances of the case. Thus, the plaintiff has been able to satisfy the court on the count of the trinity principles of strong primafacie case, balance of convenience and irreparable loss and injury is concerned. The defendant no. 6 is accordingly directed to maintain status quo till further orders, in so far as, the creation of third party interest in the subject property bearing no. WZ258, Harijan Colony, Tilak Vihar, New Delhi, is concerned.
8. The application is accordingly partly allowed. Nothing expressed herein shall tantamount to an expression of opinion on the merits of the case.
(MUKESH KUMAR GUPTA) DATED : 18.04.2013 ADJ06 (CENTRAL)/DELHI ANNOUNCED IN THE OPEN COURT (jb) CS No. 314/09/08 Vijay Laxmi Vs. Laxmi Narayan 6/6 7 CS No. 314/09/08 Vijay Laxmi Vs Laxmi Narayan & Ors.
18.04.2013 Present : Sh. S. B. Tripathi, Ld. Counsel for plaintiff.
Vide separate order announced in the court today, the application under order XXXIX Rule 1 and 2 CPC read with order XXVI Rule l9 CPC is partly allowed.
Now to come up for arguments/disposal of all the pending applications on 14.05.2013, the date already fixed.
(Mukesh Kumar Gupta) ADJ06(Central) Delhi 18.04.2013 (jb) CS No. 314/09/08 Vijay Laxmi Vs. Laxmi Narayan 7/6 8 CS No. 314/09/08 Vijay Laxmi Vs. Laxmi Narayan 8/6