Delhi District Court
Shri Vinod Arora vs Smt. Pooja Arora on 6 January, 2007
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IN THE COURT OF SHRI RAKESH KUMAR SHARMA
Additional Senior Civil Judge : Delhi.
MCA-166/2006
Shri Vinod Arora,
S/o Shri K.L. Arora,
R/o-R-749, Third Floor,
New Rajinder Nagar,
New Delhi. .........Appellant
Versus
Smt. Pooja Arora,
W/o Late Shri Krishan Arora,
Resident of in one Room of Second Floor,
R-749, New Rajinder Nagar,
New Delhi. ........Respondent
Date of institution : 11.10.2006.
Date of Judgment : 06.01.2007.
JUDGMENT
1. This is an appeal filed by the defendant against the order dated 29.09.2006, passed by learned Civil Judge, Delhi. Ld. Counsel for the Appellant has relied upon AIR 1989 Punjab & Haryana 161 titled as " Harbans Singh Vs. Rajinder Rajan and another " in support of his contentions.
2. I have heard Ld. Counsels for the parties and have also gone through the trial Court record as well as the authority relied upon by Ld. Counsel for Appellant.
3. It has been held in the authority relied upon by Ld. *2* Counsel for Appellant that the appeal against an ex-parte order under Order 39 Rules 1 & 2 CPC is maintainable. Hence, the appeal is held to be maintainable and the same is being disposed- of on merits.
4. The record of the trial Court reveals that the respondent ( plaintiff before the trial Court ) filed a suit for permanent injunction against the defendant/appellant. The prayer in the suit was as follows :-
" It is, therefore, respectfully prayed that this Hon'ble Court may graciously be pleased to :
(a) Pass a decree for permanent injunction in favour of the plaintiff and against the defendant thereby restraining the defendant, his agents, associates etc. from making any additions/alterations and structural changes in the room (mezzanine), which is located between stairs of second and third floor of property No. R-749, New Rajinder Nagar, New Delhi, as shown in red colour in the site-plan attached herewith;
(b) Award costs of the suit in favour of the plaintiff and against the defendant;
(c) Pass any other or further order(s) which this Hon'ble Court deem fit and proper in the facts and circumstances of the case in favour of the plaintiff and against the defendant" ( underlining by me ).
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5. Along-with the suit, the plaintiff filed an application under Order 39 Rules 1 & 2 CPC. The prayer in the application is as follows : -
" It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to :
(a) Pass an ad-interim ex-parte injunction order in favour of the plaintiff and against the defendant thereby restraining the defendant, his agents, servants, employees etc. from making any addition/alterations and structural changes in the room ( mezzanine ) which is located between stairs of second and third floor of property No. R-749, New Rajinder Nagar, New Delhi, more particularly shown red in the site plan attached with the plaint, till the disposal of the main suit;
(b) Pass any other or further order (s) which this Hon'ble Court deem fit and proper in the facts and circumstances of the case in favour of the plaintiff/applicant and against the defendant." ( underlining by me ).
6. The suit came up for hearing before the trial Court on 24.08.2006 when notice of the suit and the application was directed to be issued for 26.08.2006. On 26.08.2006, vakalatnama was filed on behalf of defendant/Appellant and as the Presiding Officer was on leave, the Reader of the Court adjourned the case for the purpose fixed for 12.10.2006. Thereafter, on 18.09.2006, *4* two applications, one for early hearing and the other under Order 6 Rule 17 CPC for amendment of the plaint with proposed amended plaint was filed by the plaintiff/respondent which were directed to be put up with file by the trial Judge on 20.09.2006. The proposed amendments in the application under Order 6 Rule 17 CPC were to insert para 9-A in the plaint and to amend para
(a) of the prayer as follows:-
" 9-A. That the plaintiff had filed the present suit on 23.08.2006. After receipt of summons, the defendant became more aggressive towards the plaintiff and started threatening the plaintiff to dispossess the plaintiff from the portion under her possession at second floor, and to raise construction in the suit property and to create third party interest in the room in possession of the plaintiff in question."
"(a) Pass a decree for permanent injunction in favour of the plaintiff and against the defendant thereby restraining the defendant, his agents, associates etc. from making any additions/alterations and structural changes in the suit property and from creating third party interest in the room ( mezzanine ) and in possession of plaintiff which is located between stairs of second and third floor of property No. R-749, New Rajinder Nagar, New Delhi, as shown in red colour in the site plan attached herewith, and/or from dispossessing the plaintiff from *5* the portion at second floor forming part of property No. R-749, New Rajinder Nagar, New Delhi." ( underlining by me ).
7. Vide order dated 20.09.2006, the learned Civil-Judge directed issuance of notice of both the applications to the defendant/Appellant for 29.09.2006. On 29.09.2006, the trial Court held the defendant to be served with the notice and passed the impugned order. The operative part of the order is as follows:-
" Accordingly, defendant is hereby restrained from dispossessing the plaintiff from property bearing No. R-749, Second Floor, New Rajinder Nagar, New Delhi, without due process of law and further restrained from carrying out any illegal construction activities in the portion of the plaintiff as mentioned above." ( underlining by me ).
8. The trial Court also directed compliance of the previous order under Order 39 Rule 3 CPC and directed to put up the case on the date already fixed i.e. 12.10.2006.
9. It is clear from the record of the trial Court that on 26.08.2006, no injunction order was passed by the trial Court and the case was adjourned to 12.10.2006 by the Reader of the Court. It is also clear from the record that on 20.09.2006 when the application for early hearing and application under Order 6 Rule 17 CPC of the plaintiff/respondent were taken up, they were not allowed and instead notice of the applications was directed to be *6* issued to the defendant/Appellant for 20.09.2006. Hence, the date 29.09.2006 was fixed by the trial Court not for consideration of the application under Order 39 Rules 1 & 2 CPC but only for consideration of the applications for early hearing and under Order 6 Rule 17 CPC of the plaintiff/respondent. Hence, even if the defendant/Appellant did not appear before the trial Court on 29.09.2006, at best the application for early hearing and application under Order 6 Rule 17 CPC of the plaintiff/Respondent could have been allowed and no order under Order 39 Rules 1 & 2 CPC should have been passed. Thus, the impugned order is bad in law and is liable to be set-aside on this ground alone.
10. Further, as noted above the impugned order has been passed beyond the scope of the prayer as regards the premises in the plaint and in the application under Order 39 Rules 1 & 2. Hence, the impugned order is liable to be set-aside on this ground also.
11. Further, it is clear that a part of the impugned order has been passed in terms of the prayer in the proposed amended plaint. Significantly, there was no amendment sought much less allowed in the prayer in the application under Order 39 Rules 1 & 2 CPC. Hence, the relief could not have been granted by Ld. Trial Court being beyond the scope of prayer in the application under *7* Order 39 Rules 1 & 2 CPC.
12. It is interesting to note that vide order dated 25.11.2006, the trial Court dismissed the application of the plaintiff under Order 6 Rule 17 CPC. Hence, the impugned order in terms of the prayer in the proposed amended plaint can not be sustained. The same is liable to be set aside on this ground also.
13. In view of the above discussion, the appeal is allowed. The impugned order is set-aside. No costs. A copy of this order be sent alongwith TCR to the trial Court and appeal file be consigned to Record-Room.
Announced in the open Court ( RAKESH KUMAR SHARMA ) on 6th day of January, 2007. Civil Judge : Delhi. *8*