Delhi District Court
This Order Shall Dispose Of The ... vs . on 15 March, 2012
IN THE COURT OF SH. PRANJAL ANEJA
CIVIL JUDGE01, EAST, KKD COURTS, DELHI
Suit. No495/10
In the matter of:
M/s Aviation Employees Coperative Housing building
Vs.
Pushpa Mutreja
Order
1.This order shall dispose of the application u/s 114 CPC r/w Order 47 CPC for review of order dated 24/01/12.
2. It is stated in the present review application dated 04/02/12 that the applicant/ defendant no. 3 had preferred a temporary injunction application u/o 39 r/w section 151 CPC claiming the relief of status quo on the disputed land as an incidental relief claimed by the plaintiff in its temporary injunction application. In the order dated 24/01/12 passed by this Court it has been held that no negative inference can be drawn from the previous order Suit No.495/10 Page No. 1 dated 25/03/11 dismissing the temporary injunction application of the plaintiff as no prima facie case has been shown to be existing in favour of defendant no. 3. The said order dated 24/01/12 is therefore to be reviewed on the ground that the applicant / defendant no. 3 had claimed no cross relief on counter claim and therefore there was no occasion for him to make out a prima facie case being a defendant. Normally a defendant can't prefer a temporary injunction application u/o 39 rule 1 and 2 without claiming any cross relief on a counter claim. But there are exceptional circumstances, as held in various judgments, wherein the defendant can also move such application. In such cases there is no occasion to prove a prima facie case as he only relies upon the prima facie case made out by the plaintiff. Thus on the above ground the order dated 24/01/12 needs to be reviewed.
3. No written reply to the present application has been filed by Suit No.495/10 Page No. 2 the plaintiff. However, oral arguments have been addressed by both the parties and I have perused the judicial record.
4. The main ground on which the order dated 24/01/12 is sought to be reviewed is that there is an error apparent on record in the said order. The basis for it is stated to be that the defendant in exceptional circumstance can move a temporary injunction application u/o 39 rule 1 and 2 without claiming any cross relief on a counter claim and in such case there is no occasion for him to prove a prima facie case as he only relies upon the prima facie case made out by the plaintiff. The plaintiff has relief upon Nirmala Devi Vs Gopal Krishan and others 21(1982) DLT 326. In the said ruling a revision petition was moved in the Hon'ble Delhi High Court challenging the order of the Senior Sub Judge reversing the order of Subordinate Judge granting leave to amend the plaint. In the said case the Subordinate Judge Suit No.495/10 Page No. 3 allowed a review on the ground that a ruling of the Full Bench could not be brought to the notice of the Court while considering an application for amendment and the amendment was allowed after considering the said Full Bench ruling. But in the present matter no such case has been made out by the applicant / defendant no. 1 that any ruling was mentioned but was over looked or not brought to the knowledge of the Court while passing the order dated 24/01/12. The applicant/ defendant no. 3 has also relied upon UCO Bank Vs. Presiding Officer and another, 81(1999) DLT 696 but this ruling dealt with a writ petition challenging the order of Central Government Industrial Tribunal and comes no where close to the facts of the present case. Applicant/ defendant no. 3 has also relied upon liberty Sales Services Vs. Jakki Mull and Sons, 66(1997) DLT 506 wherein the it was held that in exceptional circumstance a defendant can obtain an injunction against the plaintiff filing a counter claim or suit or Suit No.495/10 Page No. 4 cross action against him. It is pertinent to mention here that the order dated 24/01/12 was passed on temporary injunction application moved by the applicant / defendant no. 3 only and the same was dismissed not on the ground that he had no right to move the said application. But the same was dismissed on the ground that the applicant / defendant no. 3 could not make out a prima facie case. Reliance is also placed by the applicant upon Dalpat Kumar and another Vs. Prahlad Singh and others, AIR 1993 SC 276 and Urmila Devi Jain Vs. Shorey Lal and another, AIR 2003 Delhi 6. In the above noted two rulings the three principles for deciding temporary injunction application have been enunciated. The applicant / defendant no. 3 has taken a contention in the present application that there is no occasion for a defendant to prove a prima facie case in his application for temporary injunction as he can rely upon the prima facie case made out by the plaintiff. With due respect to the above said two Suit No.495/10 Page No. 5 rulings, the contention as raised by the applicant/ defendant no. 3 does not finds mentioned in the said two rulings wherein only general principles to decide temporary injunction have been enunciated. The defendant in his temporary injunction application has to make out a prima facie case in his favour alongwith the other two ingredients i.e. Balance of convenience and irreparable injury. Thus, there is no error apparent on record which would necessitate the reviewing of order dated 24/01/12. The present application, thus, deserves no merit and is accordingly dismissed.
Announced in the open court on (PRANJAL ANEJA) th 15 day of March, 2012. CJ01, East KKD Courts/ Delhi.
Suit No.495/10 Page No. 6