Delhi District Court
Om Prakash Saini & Anr. vs . Kavita Saini & Ors. on 20 January, 2020
MCA No. 8929/16
Om Prakash Saini & Anr. Vs. Kavita Saini & Ors.
ORDER
Vide This order, I shall dispose off the appeal filed against the order passed in favour of respondent under Order 39 Rule 1 and 2 CPC by ld. ASCJ,South East, Saket Court.
It is submitted that on 15.03.2014 respondents have filed a suit for permanent injunction and mandatory injunction alongwith their application u/o 39 rule 1 and 2 CPC. It is submitted that Ld. Trial court while allowing the application of plaintiff u/o 39 rule 1 and 2 did not appreciate the facts that they are not in possession of the suit property. It is further submitted that even advoleram court fees has not been filed by the respondents. The impugned order has been challenged on the ground that proper facts of the case has not been appreicated by the Ld. Trial court. It is further submitted that Ld. Trial court could not understand the facts in the direction that the plaint itself is not maintainable. It is further submitted that the suit of the plaintiff is hit by Section 41 (h) of the Specific Relief Act as the other afficatious remedies are available with the plaintiff.
On the other hand, it is the case of the respondent that they had purchased flats in the property bearing no. 3/6, Bagichi No. 3 at Hari Nagar Ashram from the appellant. Building was constructed by the appellant to the five storey. It is the case of the respondent that when the flats were purchsaed by them, then, appellant had assured that the respondents have equal rights on proportionate area of the land including the common spaces i.e. staircase and parking area but later on defendant shifted the parking area of the respondent.
It is submitted that parking was constructed for the use and occupation of the flats owners but the appellant started creating nuisane and tried to sell the parking area. The application u/o 39 rule 1 and 2 CPC has been filed on behalf of the respondent for restraining the appellant for not creating any third party interest in the parking area.
Arguments heard. Record perused carefully.
The relief under order 39 Rule 1 and 2 CPC is discretionary in nature, however, this discretion is to be exercised on the basis of settled principles of law i.e.
(a) A prima facie case in favour of the party who is claiming injunction against the other party.
(b) Balance of convenience lies in favour of the claimant against the other party.
(c) Irrepairable loss would cause to the claimant if relief is not granted which later on, cannot be substantiated in terms of money.
In the present case, agreement to sell has been executed by the appellant in favour of the plaintiff alongwith the right to utilize the common space with proportionate interest in the land. Admittedly,appellants did not keep any right in the property for themselves. It is nowhere specified in the agreement that appellants were retaining ownership rights over the parking area. The documents on record shows that the lower ground floor of left side is being used as common parking space by the flat owners. Appellants transferred the entire structure with common space to each of the respondents, hence, they have right to enjoy the common space for whatever purpose they feel like. Appellant having divested themselves of all the rights in the suit property cannot claim any title or interest. Accordingly, I am of this considered opinion that a prima facie case in favour of respondents and against the appellant is established. Balance of convenience also lies in favour of the respondents and against the appellants and further, needless to say irrepairable loss would cause to the respondents, if injunction be not granted in their favour.
On the basis of above said discretion, I do not find any irregularity in the order of ld. Trial court. The appeal is hereby dismissed and order dt. 13.08.2015 is hereby upheld.
Announced in the open
court on 20.01.2020 (Neelam Singh )
ADJ02/SE/Saket/New Delhi