Delhi District Court
Smt. Prabha Anand vs Smt. Shashi Dua on 17 September, 2014
IN THE COURT OF SH. R. B SINGH
ADDITIONAL DISTRICT JUDGE 01 (WEST): DELHI
MCA No. 9/14 ID No. 02401C0494242011
Smt. Prabha Anand
Widow of Late Sh. Amar Kumar Anand,
R/o House No. ED61,
Tagore Garden, New Delhi. ..... Appellant
Versus
Smt. Shashi Dua
Widow of Late Sh. Rajesh Dua,
R/o House No. ED61, Ground Floor,
Tagore Garden, New Delhi. ....Respondent
Date of Institution : 21.10.2011
Date of arguments heard : 17.09.2014
Date of Decision : 17.09.2014
J U D G M E N T
By this judgment I propose to dispose of an appeal filed under Order 43 Rule 1 read with Section 104 of CPC against the impugned order dated 13.09.2011 passed by Ms. Chhavi Kapoor, ld. Civil Judge - 05, West, Tis Hazari Courts, Delhi in suit no. 122/2011 entitled as "Smt. Prabha Anand Versus Smt. Shashi Dua" wherein ld. trial has dismissed the application of appellant under Order XXXIX Rule 1 & 2 read with Section 151 CPC.
2. The brief facts for the disposal of the appeal are as under:
The appellant is stated to be the owner of the property bearing no. Prabha Anand Vs. Shashi Dua Page 1 of 6 ED61, Tagore Garde, New Delhi as the said property was originally on perpetual lease hold basis and thereafter, the said property was got converted by the appellant from lease hold to free hold and the conveyance deed in respect of the said property was issued by the Delhi Development Authority in respect of the said property in favour of the appellant. The demised property has also been assessed to the property tax in the records of the Municipal Corporation of Delhi. The appellant had permitted the respondent to stay on the ground floor of the said property as a licensee being in the close relation. Thereafter, the attitude and behaviour of the respondent became rude and the respondent was directed to vacate the premises. A legal notice to the respondent terminating the license granted to her was issued. The demised property was self acquired property of the appellant and the husband of the appellant had taken loan to raise the structure of the building and the mutation was done long time back in the year 1997. Since the respondent has not vacated the demised premises despite legal notice, the appellant was compelled to file the suit before the ld. Trial Court alongwith an application under Order XXXIX Rule 1 & 2 CPC which has been dismissed by the ld. Trial Court vide order dated 13.09.2011. Hence, this appeal on several grounds.
Ld. Trial Court stated to have failed to appreciate that the document of the respondent dated 31.01.1967 are forged and fabricated as their veracity of genuineness is not proved by the respondent herein. The Prabha Anand Vs. Shashi Dua Page 2 of 6 appellant has only prayed the equitable relief of the injunction restraining the respondent / defendant from subletting assigning or otherwise parting with possession or creating any third party interest during the pendency of the suit. It is, therefore, prayed that the order dated 13.09.2011 of ld. Trial Court may be setaside and the injunction prayed for, as above may be granted in the interest of justice.
3. On the contrary, it has been submitted on behalf of the respondent in the reply to the appeal that the respondent is a senior citizen and widow; and she is the exclusive and absolute owner of the half portion of the property bearing no. ED61, Tagore Garden, New Delhi. Even the suit of the respondent is pending before the Hon'ble High Court of Delhi. In the year 1967, the late mother of the respondent Smt. Pushpa Devi, had purchased the half portion of the suit property from Sh. Amar Kumar Anand (late husband of the appellant). Late Sh. Amar Kumar Anand executed agreement to Sell and Will all dated 31.01.1967 in respect of the sale - purchase of the half portion of the suit property no. ED61, Tagore Garden, New Delhi in fvour of the Smt. Pushpa Devi (late mother of the respondent). After the full and final payment on 31.01.1967, possession of the half portion of the suit property i.e the ground floor of property no. ED61, Tagore Garden, New Delhi was handed over to Smt. Pushpa Devi. Since then she and her legal heirs are in possession of the suit property. In the said agreement dated 31.01.1967, it is provided that the first party will get the suit property converted from lease Prabha Anand Vs. Shashi Dua Page 3 of 6 hold to free hold and after conversion of the property from lease hold to free hold, the first party will execute proper sale deed of the half portion of the suit property in favour of the second party. The legal heirs of Late Sh. Amar Kumar Anand were / are legally bound to intimate the respondent about the conversion of the suit property from lease hold to free hold immediately, if it has actually taken place. The appellant should not have applied for mutation of the entire suit property in her name because the respondent is the legal and rightful owner of the half portion of the suit property.
Hence, it is submitted that ld. Trial Court has rightly dismissed the application under Order XXXIX Rule 1 & 2 CPC of the appellant and appeal is liable to be dismissed as the impugned order do not suffer from any infirmity or illegality.
4. I have heard ld. counsels for the parties and perused the material on the record. Ld. counsel for the parties have also filed the written submissions alongwith the case laws and I have perused them also carefully.
5. After hearing arguments and on the perusal of the material on the record this Court is of the considered opinion that the appeal is liable to be allowed and the order of the ld. Trial Court dated 13.09.2011 is liable to be setaside. The applications under Order XXXIX Rule 1 & 2 CPC are to be decided in the light of three golden principles i.e prima facie case, balance of convenience and irreparable loss. Since the appellant is the owner of the demised premises vide conveyance deed in respect of the property issued by Prabha Anand Vs. Shashi Dua Page 4 of 6 the Delhi Development Authority and the other related documents are on the record, the appellant is having prima facie case in her favour. The balance of conveyance also lies in favour of the appellant so far as the relief claimed in the application is concerned and the irreparable loss and injury may also be caused to the appellant, if the injunction prayed for is refused. Even if, the submissions on behalf of the respondent are considered as true that they have purchased the half portion of the suit property from Sh. Amar Kumar Anand (late husband of the appellant) vide agreement to Sell and Will dated 31.01.1967 and since the parties are under litigation before ld. Trial Court qua the same property and also before the Hon'ble High Court of Delhi qua the same property, the suit property has to be preserved during the trial. If the respondent shall sublet, assign or otherwise part with possession or create any third party interest in the demised premises, the appellant / plaintiff has to implead that person also as a party to the suit and had to amend his suit which will breed multiplicity of proceedings between the parties which is neither desirable nor warranted. To curb the multiplicity of the proceedings between the parties is also the bounden duty of the Courts. The appellant at this stage is the owner of the premises vide conveyance deed which is a legal document of ownership and even if a due weightage is also given to the document of the respondent which is an old document, no prejudice will be caused to the respondent if the respondent is restrained from subletting, assigning or otherwise parting with possession or creating any third party interest in the Prabha Anand Vs. Shashi Dua Page 5 of 6 demised premises i.e ED61, Tagore Garden, New Delhi during the pendency of the suit. Hence, the injunction as prayed for, is liable to be granted in the interest of justice as the parties are under litigation before ld. Trial court as well as before the Hon'ble High Court of Delhi and the respondent is liable to be restrained from subletting, assigning or otherwise parting with possession or creating any third party interest in the half portion of the demised premises i.e ED61, ground floor, Tagore Garden, New Delhi during the pendency of the suit.
6. Under the aforesaid discussion, the appeal is allowed by setting aside the order dated 13.09.2011 passed by Ms. Chhavi Kapoor, Ld. Civil Judge - 05, (West), Tis Hazari Courts, Delhi and the respondent, their servants, agents, associates, etc are restrained from subletting, assigning or otherwise parting with possession or creating any third party interest in the half portion of the demised premises i.e ED61, ground floor, Tagore Garden, New Delhi during the pendency of the suit.
9. Parties alongwith their counsels are directed to appear before ld. Trial Court for 29.09.2014 at 2.00 pm. A copy of this judgment alongwith ld. trial court record be sent back forthwith to ld. trial court for necessary information, record and compliance, if any.
10. Appeal file be consigned to the record room.
Announced in Open Court ( R. B SINGH )
th
on 17 of September, 2014 Addl. District Judge01(W)/Tis Hazari Courts
Prabha Anand Vs. Shashi Dua Page 6 of 6