Delhi District Court
Sheetal Goel vs Anil Kumar Goel on 23 October, 2013
IN THE COURT OF SH. APOORV SARVARIA, CIVIL JUDGEI,
NEW DELHI DISTRICT, NEW DELHI
C.S. No: 180/13
Unique Case ID No.02403C0089962013
Sheetal Goel
W/o Sh. Anil Kumar Goel
R/o. EA174, Inderpuri,
Delhi110012.
... Plaintiff
Versus
1. Anil Kumar Goel
S/o. Late Sh. J K Goel
EA128 (Shop No.1)
Inderpuri, Delhi110012.
2. Prem Wati Goel
W/o. Late Sh. J K Goel
EF1R, Inderpuri,
Delhi110012.
...Defendants
Date of Institution: 18.07.2013
Date of Reserving Order: 27.09.2013
Date of Order: 23.10.2013
ORDER ON APPLICATION FILED UNDER ORDER 39 RULES 1 AND 2 OF
CPC
1. By this order, the application filed by the plaintiff/applicant under Order 39
Rules 1 and 2 of CPC shall be disposed of. In the application, the plaintiff has
prayed for interim injunction that the defendants may be restrained from
disposing or alienating the suit properties i.e EA174 and ER1920, Inderpuri,
Delhi and from dispossessing the plaintiff from the above mentioned suit
properties without following due process of law till the disposal of the present
suit.
CS No. 180/13
Sheetal Goel v. Anil Kumar Goel & Anr. Page 1 of 8
2. The brief facts are that the plaintiff Ms. Sheetal Goel is the wife of defendant
no.1 Sh. Anil Kumar Goel and daughterinlaw of defendant no.2 Ms. Prem
Wati Goel and is stated to be residing with her childern in her matrimonial
home i.e. Property No. EA174, Inderpuri, Delhi. It is stated that the plaintiff
was married to the defendant no.1 in May 1997 and the defendant no.1 had
taken a sum of Rs. 1,25,000/ from the plaintiff vide cheque dated 04.03.1997 a
little before the marriage on the pretext of purchasing the property no. ER19
20, Inderpuri, New Delhi in the name of both defendant no.1 and plaintiff but
infact the said property was purchased in the name of defendant no.1 only and
after marriage, defendant no.1 had taken cash from the father of the plaintiff at
intervals for nearly a sum of Rs. 35 lacs and a sum of Rs. 5,40,000/ vide
different cheques dated 02.05.2000, 05.05.2000 and 03.07.2003 from time to
time, as two cheques dated 02.05.2000 and 05.05.2000 for an amount of
Rs.2,40,000/ and Rs. 2 lacs respectively in the name of Sh. Sushil Kumar,
elder brother of defendant no.1 and one cheque dated 02.05.2000 for Rs.
50,100/ in the name of Smt. Premwati i.e.defendant no.2 and one cheque dated
03.07.2000 for Rs. 50,000/ in his own name. It is stated that the entire amount
was taken from the father of the plaintiff with promise to return the same in
due course of time.
3. Thereafter, defendant no.1 was allegedly found characterless person and highly
addicted to wine and women and had ill treated the plaintif in many ways. The
plaintiff had filed complaints to the police in the year 2004 onwards.
Defendant no.1 was also taken and admitted to Shafa Home (Deaddiction
Centre), Rohini, Delhi in June, 2008. Even before defendant no.1's admission to
the deaddiction centre, the plaintiff is stated to have taken charge of the
business and looked after the family in such circumstances and she was
running a shop in the name of Goel Traders (India) at the ground floor of
CS No. 180/13
Sheetal Goel v. Anil Kumar Goel & Anr. Page 2 of 8
matrimonial home i.e. EA174, Inderpuri, Delhi and the upper floor was used
as residence for the family and other premises bearing no. 1920, Inderpuri,
Delhi for storing the goods and that is how both the properties are stated to be
in use, occupation and possession of the plaintiff.
4. Defendant no.1 is stated to be living separately in EA128, Inderpuri, Delhi and
is running a shop no.1 in the said property. It is further stated that both the
defendants have threatened to oust the plaintiff and her sons from the suit
properties i.e. EA174 and ER1920, Inderpuri, Delhi as shown in the site plan
and the defendant no.2 has filed collusive eviction suit against the defendant
no.1 and the plaintiff U/s.14(1)(e) of the Delhi Rent Control Act. Thereafter,
the plaintiff lodged complaints in the year 2012 against threats of the
defendants to vacate the house. Defendant no.1 is also stated to have filed
criminal complaint against the plaintiff for which the plaintiff has been
summoned as an accused U/s.323 of IPC. It is also stated that certain anti
social elements were sent at the plaintiff's shop on 31.05.2013 by the defendants
to harass the plaintiff. The plaintiff is stated to have been threatened to vacate
both the suit properties by the defendants. Hence, the plaintiff has filed the
present suit.
5. In the separate written statements as well as reply, defendants have challenged
the maintainability of the suit as being barred by law.It is also stated that the
plaintiff has not come to the court with clean hands and suppressed material
facts. It is further stated that no injunction can be granted against the owner of
the movable property and the plaintiff has admitted that the ownership rights
are not with her but with defendant no.1.
6. This court has heard Ld. Advocate for the plaintiff as well as defendants and
perused the record.
7. Ld. Advocate for the plaintiff has relied upon the decision in Karthiyayani
CS No. 180/13
Sheetal Goel v. Anil Kumar Goel & Anr. Page 3 of 8
Amma v. Govindan AIR 1980 Kerala 224, Corporation of the City of
Bangalore v. M Papaiah and Anr. AIR 1989 SC 1809 and Pamela Sharda v.
Rama Sharda 186 (2012) DLT 138 to state that an injunction suit can be
maintained even by a preson who is not having title. Ld. Advocate for the
defendants has relied upon the decision in Baran Kumar Nahar v. Parul
Nahar 2013 (199) DLT 1.
8. This court has heard Ld. Advocate for the plaintiff as well as defendants and
perused the record.
9. For claiming an interim relief in her favour, the plaintiff has to satisfy the following three
ingredients:
a. the plaintiff should have a prima facie case in his favour and against the defendant.
b. the balance of convenience should lie in favour of plaintiff and against the defendant.
c. the plaintiff would suffer irreparable loss in case the interim relief is not granted to
him.
10. For making out a prima facie case in her favour, the plaintiff has to show that
she has possession over the suit properties i.e. EA 174 and ER 1920,
Inderpuri, Delhi and she should not be illegally dispossessed by the defendants.
In Para 1 of the plaint, the plaintiff has stated that she is residing alongwith her
children in her matrimonial home i.e. Property no. EA174, Inderpuri, Delhi. In
reply to this Para 1, the defendant no.1 has in the written statement denied the
property no. EA174, Inderpuri, Delhi to be the matrimonial home of the
plaintiff. However, there is no specific denial to the fact that the plaintiff is in
possession of the suit property alongwith her children. It is only averred in the
written statement that the property exclusively belongs to defendant no.1.
Therefore, in view of there being no specific denial to the fact of possession of
the plaintiff in property no. EA174, Inderpuri, Delhi, this court is of prima
facie view that the possession of the plaintiff in property no. EA No.174 is
CS No. 180/13
Sheetal Goel v. Anil Kumar Goel & Anr. Page 4 of 8
deemed to be admitted.
11. As far as the other property no. ER No. 1920, Inderpuri, Delhi is concerned, in
Para 14 of the plaint, the plaintiff has averred that the property no. ER1920 as
well as EA174 are in use, occupation and possession of the plaintiff. In reply
to the said para, defendant no.1 has not denied the possession of the plaintiff in
these two properties and has only taken the defence that the plaintiff has given
wrong description of one property as ER No. 1920 and it is further stated in
the reply to the said para that the plaintiff is not entitled to usage, occupation or
possession of the suit properties. However, the fact of possession of the
plaintiff in the suit properties is not denied in reply to this paragraph also.
Therefore, the possession of the plaintiff in both the suit properties is deemed
to be admitted by the defendant no.1. The defendant no.2 Smt Premwati Goel
has also not denied the possession of the plaintiff in reply to the Para 1 of the
plaint and Para 14 of the plaint. Therefore, both the defendants have admitted
the possession of the plaintiff in both the suit properties.
12. Now the next question for determining prima facie case is whether the plaintiff
is entitled to the possession of the suit properties. The plaintiff has averred in
the plaint that the suit property no. EA174, Inder Puri Delhi is her matrimonial
house and she and her father Sh. J K Bansal had contributed to purchase of
property no. ER 1920, Inderpuri, Delhi in the name of defendant no.1 and
though the plaintiff further avers that the property was purchased in the name
of defendant no.1, however, the fact that she has specifically averred that she
had contributed to the purchase of the property no. ER 1920, Inderpuri and
she has specifically averred the details of the cheque and the cash amount given
for contribution for the purchase of the suit property bearing no. ER 1920, the
plaintiff has been able to raise a fair question on her entitlement to possession
in the property no. ER 1920, Inderpuri, Delhi. Though the defendants have
CS No. 180/13
Sheetal Goel v. Anil Kumar Goel & Anr. Page 5 of 8
denied the plaintiff's contribution to the property no. ER 1920, since an issue
has been raised and in view of the fact that the plaintiff has specifically averred
the amount of contribution by giving details of the cheques and cash given
separately, in prima facie view of this court, the plaintiff has been able to raise
a fair question on determination of her contribution in purchae of property no.
ER 1920, Inderpuri, Delhi which requires leading evidence by both the parties.
Therefore, a fair question is raised which is enough for the plaintiff to make out
a prima facie case at this stage.
13. Arguments have been raised on behalf of defendants that the relief that has
been sought by the plaintiff should be taken by her before the Ld. Magistrate
under the Protection of Women from Domestic Violence Act, 2005 (hereinafter
referred to as "DV Act") and in view of Section 41(h) of the Specific Relief
Act, 1963 due to availability of equal and efficacious remedy the injunction
sought for should not be granted. On the other hand, Ld Advocate for the
plaintiff has argued that the relief in civil suits are not barred even though they
can also be taken under DV Act in view of Section 26 of the DV Act. Section
26 of the DV Act reads as under:
"26. Relief in other suits and legal proceedings.--(1) Any relief
available under Sections 18, 19, 20, 21 and 22 may also be sought in
any legal proceeding, before a civil court, family court or a criminal
court, affecting the aggrieved person and the respondent whether
such proceeding was initiated before or after the commencement of this Act.
(2) Any relief referred to in sub-section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal court.
(3) In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief."
14. In view of the above provision, reliefs which can be sought under Sections CS No. 180/13 Sheetal Goel v. Anil Kumar Goel & Anr. Page 6 of 8 18,19,20,21 and 22 may also be sought in a civil court. As far as conflict of Section 26 of DV Act with Section 41(h) of the Specific Relief Act is concerned, both the provisions belong to special statutes and both should be given harmonious interpretation. The DV Act is a later statute which was enacted in the year 2005 as compared to the Specific Relief Act which was enacted in the year 1963. Therefore, in case of any ambiguity or repugnancy, the later statute should prevail which is not only specifically allowing the plaintiff to take similar remedies in civil courts but also is an equitable provision forming part of a beneficial legislation. Hence, there is no merit in the contention of the defendants that the injunction cannot be granted in view of equal and efficacious remedy available under the provisions of DV Act.
15. The decision relied upon by defendants in Barun Kumar Nahar are distinguishable on facts as in that case, the fatherinlaw had approached the court against the daughterinlaw and the father of daughterinlaw and in that suit, the fatherinlaw was absolute owner and had purchased the suit property in that case with his own funds. However, in the present suit, the properties no. ER 1920, Inderpuri, Delhi is admittedly in the name of defendant no.1 who is the husband of the plaintiff. However property no. EA174 is stated to be a matrimonial home and it can only be decided after leading evidence if the suit property is a matrimonial home or not. Prima facie, when the possesion of plaintiff alongwith her children in the property no. EA174 is admitted and the title over the property is in the name of the husband, it appears to be the matrimonial home of the plaintiff and defendant no. 1. Therefore, the facts in Baran Kumar Nahar are distinguishable from the material facts of the present suit.
16. The contention raised on behalf of the defendants that the plaintiff has not sought declaration need not be dealt at this stage since these are curable defects CS No. 180/13 Sheetal Goel v. Anil Kumar Goel & Anr. Page 7 of 8 in the suit and the relief of injunction which is an equitable relief should not be diallowed for technical reasons. Also, the facts and circumstances of this case are peculiar in nature. The plaintiff is not disputing the title of the suit property in the defendant's name but is claiming herself to be a contributor of the source of purchase money for property no. ER 1920, Inderpuri, New Delhi and that is why she is stated to be in possesion in one of the suit property. The other property No. EA174 is alleged to be a matrimonial home/shared household. She already claims herself to be in possession of the suit properties. Therefore, in prima facie view of this court the suit for injunction simpliciter is maintainable. (See Anathula Sudhakar v. P Buchi Reddy (2008) 4 SCC 594.)
17. In view of the aforesaid analysis, the plaintiff has prima facie case to go for trial. The balance of convenience is in favour of the plaintiff as she is admittedly in possession of both the suit properties. Also, the defendants are admittedly not in possession of the suit properties. The plaintiff may be caused irreparable harm if the interim relief sought for are not granted in her favour at this stage. Therefore, the plaintiff is entitled to the interim reliefs as prayed for in the application and the defendants are restrained from alienating or dispossessing or creating third party interest in both the suit properties as well as from dispossessing the plaintiff without following any due process of law till the disposal of the present suit. The application is allowed in the above terms. Needless to say that the plaintiff shall be bound to inform the Ld. Magistrate of the grant of interim relief granted vide this order in view of Section 26(3) of DV Act in case she avails the remedy under the DV Act.
18. Nothing in this order shall be construed as opinion on merits of the case. Order be uploaded to www.delhidistrictcourts.nic.in.
Announced in the Open Court (Apoorv Sarvaria) on 23rd October, 2013 Civil JudgeI, New Delhi District/New Delhi CS No. 180/13 Sheetal Goel v. Anil Kumar Goel & Anr. Page 8 of 8