Delhi District Court
Sh. Madan Lal Rrora vs Sh. Vindu Arora on 4 June, 2013
1
IN THE COURT OF Ms. VEENA RANI, ADDITIONAL SENIOR
CIVIL JUDGE, SOUTHEAST DISTRICT, SAKET COURT
COMPLEX, NEW DELHI
Suit No:277/2013.
Sh. Madan Lal Rrora .....Plaintiff
Versus
Sh. Vindu Arora .....Defendant
ORDER
1. By way of the present order I shall dispose of the application of the plaintiff under Order XXXIX Rules 1 & 2 CPC wherein the plaintiff has sought temporary injunction on the forcible entry of the defendant into the suit premises i.e. I28, 1st Floor Lajpat Nagar, New Delhi. The plaintiff has sought further restrain on the defendant from disturbing the life of the plaintiff. Briefly stated the facts for the disposal of this application are as under:
2. It is averred by the plaintiff that he is the owner in possession of the property No:I28, First Floor, Lajpat Nagar1, New Delhi 110024 ( hereinafter referred to be as the suit property) as shown in the red colour in the site plan. It is stated that he purchased the above said Suit No:277/2013, Sh. Madan Lal Rrora Vs. Sh. Vindu Arora 2 suit property from its previous owner Sh. Veeru Ram on 1771989 and plaintiff got duly mutated the said property in the records of the L&DO and also got the said suit property converted from lease hold to free hold property from the said office concerned. The property also stands transferred/mutated in the name of the plaintiff in the records of the MCD and plaintiff regularly paying the house tax to the MCD concerned.
3. It is stated that defendant is the daughter in law of the plaintiff who married to his son Vicky Arora on 1122008 and after some time of marriage both, the son of the plaintiff Vidky Arora and his wife i.e. defendant herein, picked quarrels and due to the frequent quarrels between the, the plaintiff debarred his son Vicky Arora and his Wife Smt. Vindu Arora/defendant herein from all his movable and immovable properties and also severed all relationship with them vide publication notice in the newspaper in the month of December, 2012 and since then the plaintiff and his wife are living alone in the suit property and never interfered in the matrimonial life of the defendant and her husband.
Suit No:277/2013, Sh. Madan Lal Rrora Vs. Sh. Vindu Arora 3
4. It is submitted that defendant has filed many false complaints against the plaintiff and his wife in order to harass and torture them. It is stated by the plaintiff that the defendant has further extended threats to involve the plaintiff and his wife in many false dowry cases and other complaint cases. It is averred by the plaintiff that suit property is his self acquired property and defendant has no right to forcibly enter into the suit property of the plaintiff. It is stated that there is no existing relationship between the plaintiff and the defendant, as such defendant has no right to enter into the suit property. It is submitted that defendant has extended threat to forcibly entered into the house of the plaintiff. Hence, the present suit.
5. The defendant filed written statement and raised preliminary objections that the suit of the plaintiff does not disclose any cause of action hence same is liable to be dismissed u/o 7 rule 11 CPC. It is admitted by the defendant that she got married with the son of the plaintiff on 1122008 but it is denied by the defendant that she used to pick up the quarrels. It is stated that the plaintiff, his wife and his son used to torture and Suit No:277/2013, Sh. Madan Lal Rrora Vs. Sh. Vindu Arora 4 taunt her for dowry. It is further denied by the defendant that plaintiff had severed all his relation and debarred his son and defendant from his properties and same was published in the newspaper. It is stated by the defendant that it was only a stunt of the plaintiff to throw out the defendant from her matrimonial home. It is stated that since then the plaintiff's son is staying with the plaintiff. It is submitted by the defendant that her husband and plaintiff had shown their dissatisfaction on the items gifted to them at the time of marriage by the parents of the defendant and started taunting the defendant for bringing inadequate dowry. It is denied by the defendant that she along with her husband shifted to property no:L47, 3rd Floor, Sriniwaspuri, New Delhi in January, 2013 as alleged by the plaintiff. Defendant further denied that she has filed false or frivolous complaint against the plaintiff or his family. It is submitted by the defendant that she had never threatened the plaintiff and his wife at any point of time. Defendant denied all other allegations of the plaintiff leveled against her in the plaint. It is stated that plaintiff has no cause of action against the Suit No:277/2013, Sh. Madan Lal Rrora Vs. Sh. Vindu Arora 5 defendant for filing the present suit, therefore, the present suit may be dismissed with costs.
6. I have heard ld. counsel for the parties and perused the record carefully.
7. Hon'ble Supreme Court in the case of Dorab Cawasji Warden Vs. Coomi Sorab Warden and others (1990) 2 SCC 117, has been pleased to lay down as under: " Since the relief of an interim injunction is all the same an equitable relief the court shall also consider whether the comparative mischief or inconvenience which is likely to ensue from withholding the injunction will be greater than that which is likely to arise from granting it, which means that the balance of convenience is in favour of the plaintiff seeking the relief."
The grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the court to be exercised in the light of the facts and circumstances in each case. Though the above guidelines are neither exhaustive nor complete or absolute rules, and there may be Suit No:277/2013, Sh. Madan Lal Rrora Vs. Sh. Vindu Arora 6 exceptional circumstances needing action, apply them as prerequisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion. This view was again followed in the case of Metro Marins and another Vs. Bonus Watch Co.(P) Ltd. And others (2004) 7 SCC 478.
If the principles laid down above are applied to the facts of the present case it would be seen that the plaintiff/respondents being absolute owners have a prima facie case to have possession of the property.
Woodroffe on Injunction Second Enlarged revised Edition, page 329, paragraph 94.01:
"There is no specific provision for injunction in a marriage or divorce law in India. But in proper cases the Court can by order (whether final or interlocutory) grant an injunction in all cases in which it appears to the Court to be just and convenient to do either under Section 151 CPC or under Order 39 Rules 1 and 2 CPC. It is the discretionary power of the Courts to grant an injunction in cases within their jurisdiction. An interlocutory injunction may be granted in Suit No:277/2013, Sh. Madan Lal Rrora Vs. Sh. Vindu Arora 7 matrimonial proceeding whenever it appears to be just and convenient or for the ends of justice. The Court shall grant an injunction to protect legal right or to protect the welfare of children. Where a dispute is pending for full hearing, the Court will normally try to preserve the status quo, although it is to be kept in mind that each case has its own peculiarity. In case of "ouster injunction" that is ordering one party to vacate the matrimonial home it is complicated. There are conflicting views on this issue in English Law (1)."
8. Prima facie case:
The expression "prima facie" means at the first sight or on the first appearance or on the face of it, or so far as it can be judged from the first disclosure. Prima facie case means that evidence brought on record would reasonably allow the conclusion that the plaintiff seeks. The prima facie case would mean that a case which has proceeded upon sufficient proof to that stage where it would support finding if evidence to contrary is disregarded. [see Black's Law Dictionary]".
In Gujarat Electricity Board, Gandhinagar v.
Suit No:277/2013, Sh. Madan Lal Rrora Vs. Sh. Vindu Arora 8 Maheshkumar and Co., Ahmedabad (1995(5) SCC 545,) wherein it was held that "Prima facie case" means that the Court should be satisfied that there is a serious question to be tried at the hearing, and there is a probability of Plaintiff obtaining the relief at the conclusion of the trial on the basis of the material placed before the Court. "Prima facie case" is a substantial question raised bona fide which needs investigation and a decision on merits. The Court, at the initial stage, cannot insist upon a full proof case warranting an eventual decree. If a fair question is raised for determination, it should be taken that a prima facie case is established. The real thing to be seen is that the Plaintiff‟s claim is not frivolous or vexatious.'' In Dalpat Kumar & Anr. Vs. Prahlad Singh & Ors., AIR 1993 SC 276, the Supreme Court explained the scope of aforesaid material circumstances, but observed as under: "The phrases `prima facie case', `balance of convenience' and ` irreparable loss' are not rhetoric phrases for incantation, but words of width and elasticity, to meet myriad situations presented by man's Suit No:277/2013, Sh. Madan Lal Rrora Vs. Sh. Vindu Arora 9 ingenuity in given facts and circumstances, but always is hedged with sound exercise of judicial discretion to meet the ends of justice. The facts rest eloquent and speak for themselves.
The basic facts of the case is that the plaintiff herein apprehends forcible entry of his daughterinlaw. In his complaint to the SHO dated 09.05.2013 the plaintiff apprehends forcible dispossession (kabjaa) by the defendant. Here it is also pertinent to mention that the plaintiff has not sought injunction against his son with whom the relationship was purportedly 'severed'. There are no averments to depict the bad relationship of the plaintiff with his son. The only averment is that the plaintiff has 'severed' his relations with the son and therefore the son is living separate from the plaintiff. The defendant has denied that the son of the plaintiff is residing separately. At this stage it cannot be ruled out that the present suit for injunction is a counter blast to the complaint of the defendant under the Prevention of Domestic Violence Against the Women Act, 2005.
As far as the publication of the advertisement in the newspaper is concerned it is too early to comment Suit No:277/2013, Sh. Madan Lal Rrora Vs. Sh. Vindu Arora 10 whether the said debarring is genuine or not particularly for the reason that such issuing 'public notice' through newspapers is a very common practice on part of the parentsinlaw (from the husband's side) to get rid of certain obligations. I may also add that I have to be very cautious at this stage. As I have already mentioned that the plaintiffherein has not spelled in terms of specific details the exact events which lead to the severance of the fatherson relationship. However, it requires sufficient evidence. At this stage I am not inclined to be persuaded by the mere publication of such a newspaper notice.
I am of the opinion that a strong 'prima facie case' in favour of the plaintiff is not made out.
9. Balance of convenience:
It is where there is doubt as to the adequacy of the respective remedies in damages available to either party or to both, that the question of balance of convenience arises. In Bikash Chandra Deb vs Vijaya Minerals Pvt. Ltd.: 2005 (1) CHN 582, the Hon'ble Calcutta High Court observed that issue of balance of convenience, it is to be noted that the Court shall lean Suit No:277/2013, Sh. Madan Lal Rrora Vs. Sh. Vindu Arora 11 in favour of introduction of the concept of balance of convenience, but does not mean and imply that the balance would be on one side and not in favour of the other. There must be proper balance between the parties and the balance cannot be an onesided affair. In Antaryami Dalabehera vs Bishnu Charan Dalabehera:
2002 I OLR 531, as this point, it was held that balance of convenience, which means, comparative mischief for inconvenience to the parties. The inconvenience to the petitioner if temporary Injunction is refused would be balanced and compared with that of the opposite party, if it is granted. In the case of Orissa State Commercial Transport Corporation Ltd. v. Satyanarayan Singh, (1974) 40 Cut LT 336, observed: 'Balance of convenience' means the comparative mischief or inconvenience to the parties. The inconvenience to the plaintiff if temporary injunction is refused would be balanced and compared with that to the defendant if it is grants ed If the scale of inconvenience leans to the side of the plaintiff, then alone interlocutory injunction should be granted."
In Anwar Elahi vs Vinod Misra And Anr. 1995 Suit No:277/2013, Sh. Madan Lal Rrora Vs. Sh. Vindu Arora 12 IVAD Delhi 576, 60 (1995) DLT 752, 1995 (35) DRJ 341 it was held that ' Balance of convenience means that comparative mischief or inconvenience which is likely to issue from withholding the injunction will be greater than that which is likely to arise from granting it. In applying this principle, the Court has to weigh the amount of substantial mischief that is likely to be done to the applicant if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted.' In the present case if the temporary injunction is not granted the plaintiveherein is not likely to face mischief or inconvenience. On the other hand if an injunction (against the ingress etc.) is granted the defendant might face undue inconvenience inasmuch that all the possibilities of a patchup between the parties might be jeopardized and a big communication gap might develop.
10. Irreparable injury:
In the case of Orissa State Commercial Transport Corporation Ltd. v. Satyanarayan Singh, (1974) 40 Cut LT 336, observed: 'Irreparable injury' means such injury Suit No:277/2013, Sh. Madan Lal Rrora Vs. Sh. Vindu Arora 13 which cannot be adequately remedied by damages. The remedy by damages would be inadequate if the compensation ultimately payable to the plaintiff in case of success in the suit would not place him in the position in which he was before injunction was refused.
In the present case the plaintiffherein has not been able to show at this stage the irreparable injury that might occur. One issue raised is that of the medical condition of the wife of the plaintiff. Now this medical condition appears to have been 'generally' occurring over a period of time and no specific incident has been averred to point out that a 'particular' medical condition is attributable to 'particular' act of the defendant.
The judgment of Barun Kumar Nahar v. Parul Nahar reported in 199(2013) DLT 1:
The plaintiff has strongly relied upon the judgment of Barun Kumar Nahar v. Parul Nahar reported in 199(2013) DLT 1 wherein the fatherinlaw had sought mandatory injunction (to have the suit premises vacated) against his son and the daughterin law who were residing in house of the plaintifftherein. The facts of the said case were specific and distinctive Suit No:277/2013, Sh. Madan Lal Rrora Vs. Sh. Vindu Arora 14 and it was allegedtherein that the wife was having extra marital affair with servant Shambhu and that the relationship between the spouses turned embittered after the discovery of the said extra marital affair. It was also the casetherein that wife had left the house and she had also executed an affidavit stating her separation from her husband. It was also the casetherein that the father had to rushed to the doctor after the wife had threatened him with dire consequences. It was in that circumstance that the Hon'ble Delhi High Court was pleased to restrain the wife.
The factsherein are dissimilar to the facts of the Barun Kumar Nahaar case. Here the plaintiff had allegedly received a threat while the parties were attending the proceedings before one of the forums where the defendantherein had made complaints. There is no single incident narrated in the entire plaint from where a genuine threat can be inferred. The plaintiff has highlighted the complaint dated 09.05.2013 (to the SHO P.S. Lajpat Nagar) in order to show the basic cause of action. The perusal of the said complaint reveals that it is a complaint of a very general Suit No:277/2013, Sh. Madan Lal Rrora Vs. Sh. Vindu Arora 15 nature expressing general apprehension that the defendant would grab the suit property.
I am not inclined to grant the temporary injunction sought by the plaintiff under Order XXXIX Rules 1 & 2 CPC. The application is dismissed. It is needless to say that the observations madeherein shall not affect the merits of the caseherein or any other proceedings initiated by any of the parties.
Announced in the open court.
(VEENA RANI) ASCJ/JSCC /Gdn.JUDGE SOUTHEAST, SAKET COURTS, NEW DELHI Date:04062013 Suit No:277/2013, Sh. Madan Lal Rrora Vs. Sh. Vindu Arora