Delhi High Court
Avani Kapur & Another vs Dr. Smrithi Talwar & Another on 8 July, 2011
Author: Indermeet Kaur
Bench: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on : 06.07.2011
Judgment delivered on : 08.07.2011
+ CM (M)No. 736/2011 & CM Nos.12037-38/2011
AVANI KAPUR & ANOTHER ........... petitioners
Through: Mr. Brajesh Srivastava and
Mr. Dinesh Kumar, Advocates.
Versus
DR. SMRITHI TALWAR & ANOTHER ..........Respondents
Through: Mr.R.K. Mehta,
Mr. Virender Mehta and
Mr. Kunal Mehta, Advocates
for respondent No. 1.
Mr.Aditya Madan, Advocate for
respondent no.2.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J.
1 The order impugned is the order dated 28.05.2011. This order had endorsed the prima facie finding returned by the Civil Judge dated 13.04.2011 whereby the application of the plaintiff (Dr. Smrithi Talwar) under Order 39 Rules 1 & 2 of the Code of CM (M) No. 736/2011 Page 1 of 5 Civil Procedure (hereinafter referred to as the 'Code') had been allowed and the defendants (Avani Kapur and Suvira Kapur) had been restrained from causing any obstruction or interference in the ingress and egress of the plaintiff in the suit property i.e. property bearing No. B-7, Pushpanjali Forms, Bijwasan, New Delhi.
2 The plaintiff is the second wife of Rajiv Kapur. The disputed property was equally owned by late Rajiv Kapur and his mother Suvira Kapur (defendant No. 2). Rajiv Kapur had expired on 14.07.2005; during his lifetime he had entered into a second marriage with the plaintiff after a valid and legal divorce. Defendant No. 1 (Avani Kapur) is his daughter from the first marriage. Contention of the plaintiff is that in terms of the amended provisions of Section 50 of the Delhi Land Reforms Act, 1951 (DLRA) the suit property being agricultural land she alone is entitled to the share of her deceased husband (50% of the suit property). This contention is opposed by defendant No. 1; her plea being that in terms of Section 6 (5) of the Hindu Succession Act, 1956 as amended by the Act of 2005 she is also entitled to a share in her father's 50% share. There is no dispute that the remaining 50% of the suit property is fully owned by defendant No. 2 i.e. Suvira Kapur.
CM (M) No. 736/2011 Page 2 of 53 It is in this background that the respective contentions of the parties had been noted. Civil Judge after examining the respective documents of the respective parties had returned a finding that as on date i.e. on 13.04.2011 neither the plaintiff nor the defendants are residing in the suit property; the plaintiff and defendant No. 2 are in constructive possession of the suit property being co-owners. On this premise i.e. holding the plaintiff to be a co-owner, the application of the plaintiff was allowed and both the defendants were restrained from causing any obstruction or interference in the ingress and egress of the plaintiff in the suit property.
4 This finding was affirmed by the Additional District Judge vide impugned order dated 28.05.2011.
5 While dealing with an application under Order 39 Rules 1 & 2 of the Code the principles governing injunction have to be adhered to; the plaintiff must make out a prima-facie case, balance of convenience and irreparable loss in favour of a party seeking the temporary injunction must also be made out. In this context, the impugned order had noted that the plaintiff had made a specific averment in para 10 of the plaint that all her belongings except certain necessities are lying in the suit property where she was residing with her husband prior to his death; the impugned CM (M) No. 736/2011 Page 3 of 5 order had also noted that this fact has not been specifically denied in the written statement filed by the defendants. There is also no dispute to the fact that the plaintiff is a co-owner in the suit property; in these circumstances, the Court was of the view that a prima-facie case has been built up by the plaintiff showing her right in the suit property. Car registration certificate, driving license, telephone bills in the name of the plaintiff, house tax receipt issued by the MCD had also been considered by the Civil Judge while granting the injunction in favour of the plaintiff. The balance of convenience vis-à-vis rights of the parties as well as the loss and injury apprehended by the plaintiff in case the injunction is refused had also been adverted to.
6 The scope of interference in a petition under Article 227 of the Constitution of India is limited; it is not an appellate jurisdiction; it is a discretionary relief which may be granted to a party if a patent illegality or gross injustice has been suffered by the applicant; this does not appear to be one such case; conscience of this Court does not deem it fit to interfere in the impugned order. Discretion for grant of injunction has been exercised in a sound and judicial manner after weighing and considering the well established principles governing the grant of temporary injunction; there has been no miscarriage of justice. CM (M) No. 736/2011 Page 4 of 5 Impugned order does not warrant any interference. No merit in the petition.
7 Dismissed.
INDERMEET KAUR, J.
JULY 08, 2011 a CM (M) No. 736/2011 Page 5 of 5