Satish Gupta vs Rachna Gupta And Anr on 2 February, 2024

[Cites 2, Cited by 0]

Delhi High Court - Orders

Satish Gupta vs Rachna Gupta And Anr on 2 February, 2024

Bench: Prathiba M. Singh

                                    $~40
                                    *           IN THE HIGH COURT OF DELHI AT NEW DELHI
                                    +                        CS(OS) 29/2024, I.As. 2564/2024, 2565/2024
                                                SATISH GUPTA                                                                  ..... Plaintiff
                                                                                      Through:                 Mr. K B Upadhyay, Ms. Pinki
                                                                                                               Tiwari, Ms. Kalpana, Advs. (M.
                                                                                                               9810655095)
                                                                                      versus

                                                RACHNA GUPTA AND ANR                     ..... Defendants
                                                               Through: Ms. Jaya Goyal and Ms. Manpreet
                                                                        Kaur, Advs. (M:9811131012)
                                                CORAM:
                                                JUSTICE PRATHIBA M. SINGH
                                                         ORDER

% 02.02.2024

1. This hearing has been done through hybrid mode. I.A.2565/2024 (u/O XXXIX Rule 4 CPC)

2. This is an application filed on behalf of the Defendants for vacation of the stay order dated 12th January, 2024. Submission of Ms. Jaya Goyal, ld. Counsel for the Defendants is that an ex-parte ad interim injunction has been obtained by the Plaintiff on 12th January, 2024 suppressing the material facts before the Court.

3. Vide order dated 12th January, 2024 the following directions were passed:

"16. The dispute is between the real brothers. The Plaintiff has placed on record various documents including excise invoices, GST registration, payment of property tax etc. Some of the documents are in the name of the late father and some of the registrations like the GST registrations are in the name of the Plaintiff. In any CS(OS) 29/2024 Page 1 of 10 This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 05/02/2024 at 23:31:33 event, the dispute being between family members, if there are any complaints etc. which are lodged, it could lead to unnecessarily disturbance and complications in the family relationships. The Plaintiff having aveiTcd that he is conducting business in this property since 1998, has made out a prima facie case, based on the documents and pleadings on record. Balance of convenience also lies in favour of the CS(OS) 29/2024 Page 3 of 4 Plaintiff because if an injunction is not granted in his favour irreparable harm will be caused not only to the reputation and business of the Plaintiff but as also to his family.

17. The Defendants are restrained from causing any interference in the peaceful enjoyment of the property as also in the business of the Plaintiff. If the Defendants wish to seek any further relief, they are free to approach this Court by way of an application."

4. Ld. Counsel has taken the Court through the full set of documents such as various police complaints, which were filed and certain assurances which were given by the respective parties before the police.

5. In addition, she has also taken the Court through the judgment in Probate Case no.65/2010, in respect of the Will dated 5th June, 2008 left behind by the grandfather of the Plaintiff and Defendant No.2, vide which the suit property bequeathed to Plaintiff and Defendant No.2.

6. The Court has also perused various photographs of the suit property, which would actually show that there was partition of wall between the two portions of the property.

7. A perusal of the record would show that due to the breaking of the partition wall both parties had approached the police authorities. The parties had then given undertakings before the police to the following effect:

CS(OS) 29/2024 Page 2 of 10

This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 05/02/2024 at 23:31:33 Undertaking of Mr. Atul Gupta:

"SHO, Anand Parbat Indl. Area, New Delhi 23/ 11 /2023 Res. Sir, Re: J-37/D, Anand Parbat Indl. Area Delhi, New Delhi-110076.

The above said property situated at Anand Parbat Indl. Area, N. Delhi is equally divided into two parts and has two separate entry gates. One part was occupied by me and other part was occupied by me and other part was occupied by my brother Mr. Satish Gupta.

Since, last three - four years, I was not well and hospitalized twice and was unable to visit the above property regularly. My wife Rachna Gupta visited the property occasionally during my illness. On 29.10.2023, visited the property and found that Mr. Satish Gupta has partly the partition was in the property and placed his goods in my position. On 29/10/23 my wife called 100 No. twice and the SHO requested both of us to mutually resolve the matter by 10/ 11/23 and he agreed for the same. But he Mr. Satish Gupta gave no response till date.

He also filed complaints against us and not vacating the premises or removing his goods.

I am enclosing herewith copy of my grandfather Late Mr. Madan Lal Gupta who has clearly stated in his will that both of us are already having possession of above property.

Thanking you.

Encl: Copy of Will.

Yours faithfully Sd/( Atul Gupta) Mo. 98111-61202"

CS(OS) 29/2024 Page 3 of 10

This is a digitally signed order.

"The SHO Anand Parbat Delhi-110005 Dear Sir, 9/112024 I would like to submit that today on 9/1/2024 we made a call for unauthorized construction which was happening at J-37D, Gali no.-8, Anand Parbat Industrial Area, Delhi-5. Actually this complete property has 2 gates and parts which is disputed property of my father Satish Gupta and Atul Gupta (said brother). I and Rachna Gupta (said Aunt) has come under resolution that we will put separate lock on each gate separately. One lock by us and other lock by Rachna Gupta. No construction inside the property will happen during this time and I can completely sell or remove my material within 4 days. This property is under the supervision and in High Court. I will main status quo till then and all the material & said goods are mine and not there.

Sd/-

9/1/2024 Regards Sagar Gupta 9810219499 S/o Satish Gupta Current at - 3306, Siena Tower, Mahagun Mezzaria Sector-78, Noida U.P. CS(OS) 29/2024 Page 4 of 10 This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 05/02/2024 at 23:31:34 Sd/-

9/1/24 Devika Sharma 3306, Mahagun Mezzaria Sec78, Noida UP 9899738085 Undertaking of Ms. Rachana Gupta:

I Rachna Gupta W/o Atul Gupta resident of J-146, Sarita Vihar, New Delhi. The said property J-37D A.P.I. A Delhi is for jointly owned by my husband Atul Gupta and his brother Satish Gupta we have settled for a possession of one portion each therefore each of us will lock one portion separately. They have agreed to remove their stuff in 4 days. The property will remain as it is till further notice."

Regards Sd/-

9th Jan 24 Rachna Gupta (W/ o Atul Gupta) 9899774727

8. The above assurances and the Probate petition judgement show that there was a serious dispute and parties had already resolved the same, before the police authorities. However none of these facts have been disclosed to the Court in the plaint which was presented. An impression was sought to be given that the Plaintiff is in exclusive possession of the property. However, the photographs, the undertakings to the police etc., show the contrary.

CS(OS) 29/2024 Page 5 of 10

This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 05/02/2024 at 23:31:34 There appears to have been clear partition walls separating the two portions, i.e., of the Plaintiff and the Defendants, in respect of which police complaints have also been filed. All these facts have been suppressed from the Court.

9. The Defendants have been deprived of using their own portion of the property owing to the ex-parte order. When the matter was called out in the morning, a passover was sought on behalf of the Counsel's colleague. After the passover, the Counsel for the Plaintiff has appeared and when confronted with the question as to why the complaints and the judgement in the probate case have not been disclosed, there is no satisfactory answer which is forthcoming.

10. In view of above, it is evident that the Plaintiff had supressed information at the interim application stage and the Defendants have been bereft of accessing their rightful property.

11. In an application under Order XXXIX Rule 4 CPC, it is not necessary for the Court in all matters to issue notice and seek a reply to the application, especially if the Court finds that the injunction has been obtained by suppressing and concealing material and relevant facts. The first proviso of Order XXXIX Rule 4 CPC clearly lays down that "Provided that if in an application for temporary injunction or in any affidavit supporting such application, a party has knowingly made a false or misleading statement in relation to a material particular arid the injunction was granted without giving notice to the opposite party, the court shall vacate the injunction unless, for reasons to be recorded, it considers that it is not necessary so to do in the interests of justice." In an event, if the Court find that there is material suppression of facts or misleading statements given by the party, CS(OS) 29/2024 Page 6 of 10 This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 05/02/2024 at 23:31:34 the Court can vacate the interim order without any notice. Further, the same has been laid down in the decision of Division Bench of Bombay High Court in Kewal Ashokbhai Vasoya & Anr. v. Suarabhakti Good Pvt. Ltd. (MANU/MH/3566/2022). Relevant extracts of the decision are set out below:

21. Further, as we have noted, these without notice orders have inbuilt safeguards and checks and balances.

They are meant precisely to facilitate a defendant applying to the single Judge himself or herself by making out an appropriate case to vacate entirely, or to modify or limit the without notice ad interim order.

22. Another aspect that arises is whether it is invariably necessary for a defendant against whom there is such a time-limited temporary ad interim order to file a substantive application under Order 39 Rule 4. That rule with its two provisos reads thus:

"4. Order for injunction may be discharged, varied or set aside.--Any order for an injunction may be discharged, or varied, or set aside by the Court, on application made thereto by any party dissatisfied with such order:

Provided that if in an application for temporary injunction or in any affidavit supporting such application, a party has knowingly made a false or misleading statement in relation to a material particular and the injunction was granted without giving notice to the opposite party, the Court shall vacate the injunction unless, for reasons to be recorded, it considers that it is not necessary so to do in the interests of justice".

Provided further that where an order for injunction has been passed after giving to a party an opportunity of being heard, the order shall not CS(OS) 29/2024 Page 7 of 10 This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 05/02/2024 at 23:31:34 be discharged, varied or set aside on the application of that party except where such discharge, variation or setting aside has been necessitated by a change in the circumstances, or unless the Court is satisfied that the order has caused undue hardship to that party."

(Emphasis added)

23. The two provisos are exactly in line with the formulation of Carr J set out earlier. It is true that Order 39 Rule 4 speaks of an 'application'. But the first and second provisos are exceptions. They operate in distinct fields. The first proviso is a situation where an injunction has been obtained without notice. The second proviso contemplates a situation where an injunction has been made after notice and both sides were heard. We are of the considered view that an Order 39 Rule 4 substantive application by the defendant is not invariably necessary or mandatory where a case falls under the first proviso. To be perfectly plain about this, when there is a time limited ad interim injunction and the matter is listed on a specific date, it is open to the defendant to file an Affidavit in Reply to show on that day why that ad interim order should not be continued or should be varied. After all, the purpose of listing the matter after a few days is precisely to consider whether the ad-interim injunction ought or ought not to be continued. The court is not denuded of the power to continue the injunction irrespective of any questions of disclosures if it feels that the interest of justice so demands

-- and this is precisely the summation by Mrs Justice Carr in the case referred to above. Nothing prevents the defendants from filing an Order 39 Rule 4 application, but we hold that this is not a requirement that can be insisted on. The submissions in the Affidavit in Reply by a defendant opposing the continuance of a without notice ad-interim time-limited injunction cannot be ignored by a court on the basis that no substantive application under Order 39 Rule 4 has been filed.

CS(OS) 29/2024 Page 8 of 10

This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 05/02/2024 at 23:31:34 .....

25. There is a final important distinction between the two provisos. The second proviso requires an application by the party seeking modification, variation, recall etc. The first proviso does not contemplate an application by the defendant at all. The application that it speaks of is the initial application by the plaintiff, the one in which the without notice injunction was granted. The first proviso it casts a duty on the court to vacate the injunction if the conditions in the first proviso are met, i.e., once the defendant shows that the party seeking the injunction knowingly made a false or misleading statement in relation to a material particular.

12. This Court is of the opinion that the ex-parte ad-interim injunction deserves to be vacated as the allegation is of suppression of the material facts. The interim order is, accordingly, vacated.

13. The application under Order XXXIX Rule 1 & 2 CPC is dismissed, with costs of Rs.25,000/- to be paid by the Plaintiff to be given to the Defendants within two weeks.

14. If any locks have been put on the property, the same shall be removed within 48 hours, failing which the Defendants are free to break open the lock and occupy their portion of the property.

15. Application is disposed of.

I.A.2564/2024 (u/O VII Rule 11 CPC)

16. The present application has been filed under Order VII Rule 11 of CPC challenging the maintainability of the suit. Issue notice in this application.

CS(OS) 29/2024 Page 9 of 10

This is a digitally signed order.

16. List before the Joint Registrar on 11th March, 2024.

17. List before the Court on 9th May, 2024.

PRATHIBA M. SINGH, J.

FEBRUARY 02, 2024/dk/bh CS(OS) 29/2024 Page 10 of 10 This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 05/02/2024 at 23:31:34

Unlock Advanced Research with PRISMAI

Delhi High Court - Orders