Delhi District Court
Sh. Prabhat Shankar vs Sh. Jai Pal Singh S/O Not Known on 30 May, 2011
IN THE COURT OF SHRI. ASHISH AGGARWAL, CIVIL JUDGE1,
DWARKA COURTS, DELHI
CS No: 114/11
Unique Case ID No. 02405C0027272011
Sh. Prabhat Shankar
S/o Devnanadan Parsad
R/o WZ549A, Naraina Village.
Naraina Vihar,
New Delhi110028 ... Plaintiff.
Versus
1. Sh. Jai Pal Singh S/o not Known
R/o WZ 368, Naraina Village
Naraina Vihar, New Delhi110028
2. Sh. Ravinder S/o Sh. Sewa Ram
R/o WZ481 Naraina Village
Naraina Vihar, New Delhi110028
3. Sh.Santosh S/o Not Known
R/o WZ549A, Naraina Village
Naraina Vihar, New Delhi110028 ... Defendants
Date of Institution: 18.01.2011
Date on which judgment was reserved: 26.05.2011
Date of pronouncing judgment: 30.05.2011
Prabhat Shankar Vs. Jai Pal Singh & Ors. CS 114/11 1/21
SUIT FOR PERPETUAL AND MANDATORY INJUNCTION
JUDGMENT
1. The suit shall be decided by this judgment. The plaintiff has stated in the plaint that he is tenant and in possession of the property bearing No. WZ549A, first floor room, Naraina Village, Naraina Vihar, New Delhi110028, shown in red colour in the site plan attached with the plaint (hereinafter referred to as "suit property"). It is averred in the plaint that one Sh. Mange Ram was the owner of the property and after his death, his wife Smt. Manbo Devi became the owner of the property. Later she also expired. It is further stated in the plaint that Smt. Bala was the only surviving legal heir and therefore became owner of the suit property. She died in the year 2009. Since her death, her husband Sh. Jai Pal Singh has been accepting rent from the plaintiff. It is further averred that the plaintiff has been regularly paying rent to defendant no. 1. It is stated that the defendant no. 1 is not issuing any rent receipt. It is further averred in the plaint that the plaintiff has been in settled and peaceful possession of the suit property. It is further stated that the defendants have been threatening to forcibly dispossess the plaintiff from the suit property. The plaintiff has, by the present suit, prayed for a decree of perpetual injunction restraining the defendants and their representatives from disturbing the peaceful possession of the plaintiff over the suit property without due process of law. The plaintiff has also prayed for a decree of 'mandatory' injunction restraining the defendants and their representatives from extending any threat to the plaintiff to get the property Prabhat Shankar Vs. Jai Pal Singh & Ors. CS 114/11 2/21 vacated without due process of law.
2. Defendant nos. 1 and 2 filed their written statement. They stated in their written statement that the extent of rent stated by the plaintiff is incorrect and that the plaintiff has not been paying regularly rent. The defendants denied that they have been extending threats to the plaintiff.
3. Defendant no. 3 failed to file his written statement. His defence was struck off by order dated 31.03.2011.
4. After completion of pleadings, the following issues were framed by the Court by order dated 31.03.2011:
1. Whether the plaintiff has cause of action to file the present suit? OPP
2. Whether the plaintiff is in settled possession of the suit property?
OPP.
3. Whether the plaintiff is entitled to permanent injunction restraining the defendants from disturbing the peaceful possession of the plaintiff without due process of law? OPP.
4. Whether the plaintiff is entitled to injunction restraining the defendants and their representatives from extending threats to the plaintiff to get the property vacated without due process of law? OPP.
5. Relief.
5. The plaintiff adduced evidence in support of his case. He examined himself as PW1. PW1 tendered his affidavit Ex. PW1/A in evidence. He reiterated the contents of the plaint. He identified and relied upon the following documents:
(a) SitePlan as Ex PW1/1;
(b) Copy of Election Identity Card and Ration Card as Ex.PW1/2(colly.).
The witness was crossexamined by defendant nos. 1 and 2 and was then
Prabhat Shankar Vs. Jai Pal Singh & Ors. CS 114/11 3/21
discharged. Plaintiff's evidence was closed.
6. The defendant nos. 1 and 2 examined themselves in defence evidence. The defendant no.1 deposed as DW1 and tendered his affidavit Ex DW1/A in evidence. In his affidavit, DW1 stated that the plaintiff was a tenant under him and that DW1 has sold the suit property to defendant no.2. DW1 was cross examined and discharged. Defendant no.2 deposed as DW2. He tendered his affidavit Ex DW2/A in evidence. In his affidavit, DW2 stated that he has purchased the suit property and that he has not threatened to forcibly dispossess the plaintiff therefrom. DW2 was crossexamined and discharged. Defence evidence was closed.
7. Final arguments are heard. Record is perused.
The issuewise findings are as under:
ISSUE NO. 1
"Whether the plaintiff has cause of action to file the present suit? OPP".
8. The onus to prove this issue is upon the plaintiff. According to the plaintiff, he is a tenant in the suit property and the defendants have been trying to forcibly dispossess him.
9. On the other hand, the defendants nos.1 and 2 have stated that they have not been threatening to forcibly dispossess the plaintiff.
10. The plaintiff has supported his case by his own testimony. He has examined himself as PW1. PW1 has stated in his affidavit Ex PW 1/A that on 12.01.2011, the defendant no. 2 and defendant No. 3 arrived at the suit property and directed Prabhat Shankar Vs. Jai Pal Singh & Ors. CS 114/11 4/21 the plaintiff to vacate the suit property. On refusal by the plaintiff and others, the defendant nos. 2 and 3 threatened to forcibly dispossess the plaintiff and other tenants. On this, the plaintiff contacted defendant no. 1 and informed defendant no. 1 of the threats advanced by defendant nos. 2 and 3. The defendant no. 1 informed the plaintiff that he had sold the property to defendant no. 2, who in turn might have sold it to defendant no. 3. PW1 has further deposed that again on 13.01.2011, the defendant no. 3 visited the suit property and threatened to forcible dispossess the plaintiff. Finally, PW1 has summed up in para no.7 of his affidavit Ex. PW1/A that all the defendants have "jointly and severally" threatened the plaintiff.
11. During crossexamination, PW1 reiterated that defendant Nos. 2 and 3 had threatened him and other tenants on 12.1.2011 and 13.1.2011. He has admitted that no complaint was made to police on 12.1.2011. PW1 admitted during cross examination that he did not make any complaint to police regarding threats advanced to him on 12.1.2011 and 13.1.2011. He stated that a complaint was made by another tenant Mr. Salim Khan on 13.1.2011. He has denied the suggestion that he was not threatened on 12.1.2011 or any other date.
12.Ld. counsel for defendant nos. 1 and 2 has argued that had the threats been advanced to the plaintiff by the defendants, the plaintiff would surely have contacted the police. Ld. Counsel for defendant Nos. 1 and 2 has pointed out that PW1 has admitted that he did not contact the police which indicates that threats were indeed never extended to him.
Prabhat Shankar Vs. Jai Pal Singh & Ors. CS 114/11 5/21
13. The submissions of Ld. Counsel for defendant nos. 1 and 2 do not bear force. The threat advanced to the plaintiff, if any, was of dispossession. It related to the civil rights of the plaintiff. It was not necessary for the plaintiff to approach the police to agitate his rights as a condition precedent to instituting the suit. The threat was not of imminent physical danger or harm and the situation was not so alarming as to require immediate police intervention. The threat advanced to the plaintiff can at best amount to criminal intimidation punishable under section 506 of Indian Penal Code. This is a noncognizable offence, for which police cannot initiate investigation without obtaining prior orders from the Court, as per Section 155 of Criminal Procedure Code. An FIR can also not be registered for such an offence. Since the machinery of criminal process could not be set into motion, no useful purpose would have been served by contacting the police. Therefore, it was not natural or necessary for the plaintiff to make complaint to the police and even if the contention of the defendants is accepted to be true and it is assumed that the plaintiff failed to contact the police, though contrary to record, that would not irresistibly lead to the inference that no such threat was advanced to the plaintiff.
14. Further, the plaintiff has clearly stated in his crossexamination that another tenant Mr. Salim Khan had contacted the police on 13.1.2011. The threats were allegedly extended on 12.1.2011 and 13.1.2011. The fact that a complaint was made to the police of the alleged threats lends credibility to the version of the plaintiff that threats were indeed advanced. That the complaint was made by Prabhat Shankar Vs. Jai Pal Singh & Ors. CS 114/11 6/21 Mr. Salim Khan and not by the plaintiff is of no consequence. The plaintiff and Mr. Salim Khan are tenants occupying different rooms in the same premises. According to the testimony of the plaintiff, threats were jointly advanced to all the tenants. Tenants, who had gathered together, can be naturally expected to act in concert. In these circumstances, it is not necessary for each tenant to separately address complaints to the police. Either aggrieved party or even a stranger can report the matter to the police. The fact that one of the several victims has preferred a complaint and others have not does not imply that the action complained of never occurred. It is clear from the crossexamination of PW 1 that he had also visited the police station on 13.1.2011 and that his grievance was also heard by the local police. It can safely be inferred that threats must have been extended to the plaintiff which gave rise to the occasion for the plaintiff to approach the police.
15. Having concluded that the plaintiff had received threats, the question that arises for determination is which of the defendants were involved in threatening the plaintiff. The role played by each defendant is separately assessed. Defendant No.1
16.In the plaint, the plaintiff has stated that he was threatened by defendant Nos. 2 and 3 on 12.1.2011 and 13.1.2011. The plaintiff has not stated in the plaint about the threats extended to him by defendant No.1. In his affidavit Ex PW 1/A too, PW1 described the incidents dated 12.1.2011 and 13.1.2011 when the threats were extended by defendant Nos. 2 and 3. As against defendant no.1, the only Prabhat Shankar Vs. Jai Pal Singh & Ors. CS 114/11 7/21 allegation mentioned in the affidavit of PW1 is that he had "jointly and severally" threatened the plaintiff. This statement figures in para no.7 of the affidavit Ex PW1/A wherein the plaintiff has sought to sum up his assertions. Interestingly, the date when the plaintiff was threatened by defendant no.1 has not been disclosed by PW1. The incident when the threats were advanced by defendant no.1 and the manner of its occurrence has not been described by him. The statement that threats were "jointly and severally" advanced by defendant no. 1 to the plaintiff appears to be vague.
17. Reading the affidavit of PW1 as a whole, it is apparent that threats to the plaintiff were not advanced by defendant no.1. Had defendant no.1 threatened the plaintiff, the plaintiff would have recounted the specific incident. Having particularly narrated the incidents dated 12.01.2011 and 13.01.2011, while omitting to mention any other incident, clearly implies there was no other such incident and threats were advanced only on 12.01.2011 and 13.01.2011. No role has been ascribed to defendant No.1 in the incidents dated 12.01.2011 and 13.01.2011. Had threats been advanced by defendant No. 1, particulars thereof would surely have been given by the plaintiff in the plaint or at least in the affidavit of PW1, more so in light of the denial by defendant no.1 in the written statement.
18. In the affidavit of PW 1, it is only the defendant nos. 2 and 3 who are stated to have arrived at the spot with their associates and to have advanced threats. It is not the case of the plaintiff that while advancing threats, the defendant nos. 2 Prabhat Shankar Vs. Jai Pal Singh & Ors. CS 114/11 8/21 and 3 were acting at the behest of, or with the aid of, the defendant No.1. On the contrary, the plaintiff has stated that on being threatened by defendant nos. 2 and 3, the plaintiff had himself contacted the defendant no. 1 who informed about the sale of the property. Had the defendant No.1 also threatened the plaintiff or had the defendant Nos. 2 and 3 been acting on behalf of defendant No.1, the plaintiff would not have taken steps to inform the defendant No.1 of the advancement of threats. The plaintiff has not described as to how and in what manner he felt threatened by defendant No. 1.
19.The statement of PW1 made in para no.7 of his affidavit Ex PW 1/A that he was threatened by all the defendants is an improvement over the pleadings. In the plaint, the plaintiff has stated that threats were advanced by only defendant Nos. 2 and 3. The assertion of the plaintiff in his affidavit that he was threatened by defendant no. 1 is therefore beyond the pleadings. It is settled law that evidence must be confined to the matters stated in the plaint. In the case of Darshan Singh v. Santokh Singh, 1997(2) R.C.R.(Civil) 577, the Hon'ble Punjab & Haryana High Court held as under :
"It is well settled that any amount of evidence in support of a plea which does not find place in the pleadings is inconsequential and is to be left out of consideration".
A fact which is not pleaded to exist cannot be sought to be proved. When, in the plaint, allegations are levelled only against defendant Nos. 2 and 3, the plaintiff cannot now be permitted to prove them against defendant No.1 as well. Further, such material variation between pleadings and proof renders the version of PW1 Prabhat Shankar Vs. Jai Pal Singh & Ors. CS 114/11 9/21 as to the advancement of threats by defendant no.1 unbelievable.
20.Although the plaintiff has, in the plaint as well as in the affidavit Ex PW 1/A, not stated that defendant no.1 was present at the spot on 13.1.2011 when defendant no 3 is stated to have advanced threats, such a plea was later introduced by PW1 in his crossexamination wherein he stated, "It is wrong that neither Ravinder nor Jai Pal were present on 13th January,2011". This plea is not credible. Firstly, it does not find mention in the pleadings or in the affidavit Ex PW 1/A. Secondly, it is in conflict with the statement of PW1 made in para No.6 of his affidavit Ex PW 1/A that defendant No.3 threatened the plaintiff not to make any hue and cry before anyone including defendant No.1. In case defendant No.1 was also present at the spot, the defendant No.3 would not have warned the plaintiff against protesting before defendant no.1. Further, when defendant no.1 deposed as DW1, the plaintiff did not question him during crossexamination as to whether he had extended threats to the plaintiff on 13.1.2011. Moreover, even if the assertion of the plaintiff about the presence of defendant no.1 on the spot on 13.1.2011 is accepted as true and correct, that does not show that defendant no.1 also threatened the plaintiff with forcible dispossession. Mere presence at the spot is not sufficient to create a reasonable apprehension of dispossession so as to give rise to cause of action to institute the suit.
21. It is not in dispute between the parties that the defendant no.1 has sold the suit property to defendant no.2. Since, by the sale, the defendant no.1 had divested himself of rights in the suit property, there was no requirement, and therefore Prabhat Shankar Vs. Jai Pal Singh & Ors. CS 114/11 10/21 no motive, for the defendant no.1 to attempt to or threaten to evict the plaintiff from the suit property. This further lends strength to the version of defendant no. 1 that he did not threaten the plaintiff with forcible dispossession.
22. It needs no emphasis that the plaintiff must stand on his own legs and must prove the cause of action existing in his favour as a condition precedent to the grant of injunction. The onus to prove this issue was placed upon the plaintiff who ought to have discharged it by leading cogent and convincing evidence. Reference in this behalf may be made to the case of M/s Surajbhan Kailash Chand & Anr. vs. Hari Shanker Vashist & Anr. AIR 1976 Delhi 70. Order 6 Rule 4 of Code of Civil Procedure mandates that under such circumstances, particulars of the incident must be set out.
23. The incidents dated 12.01.2011 and 13.01.2011 do not exemplify the conclusion of PW1 that the plaintiff was 'jointly and severally' threatened by the defendant no.1. Defendant nos. 2 and 3 are not stated to have been acting at the instance of defendant no.1. Therefore, it cannot be stated that in the advancement of threats, the defendants were acting 'jointly'. Further, if the defendants had been acting 'severally', the separate incidents of giving threats would have been fully and properly described. None of this having been done, the plea of the plaintiff that he was threatened by defendant no.1 has remained bald and unsubstantiated. The assertion of the plaintiffs that threats were advanced by defendant no.1 made in the concluding paragraph of the affidavit Ex PW 1/A is therefore not believable and stands not proved.
Prabhat Shankar Vs. Jai Pal Singh & Ors. CS 114/11 11/21
Defendant No.2
24. PW1 has, in his affidavit Ex PW 1/A, provided details of the incident dated 12.1.2011. According to him, on that day, the defendant no.2 threatened the plaintiff that either the plaintiff shall vacate the suit property or else he would use force to have it vacated. This stance has been maintained by PW1 during crossexamination. Nothing could be elicited in crossexamination of PW1 which could impeach the credibility of the witness in this regard. The testimony of PW1 establishes that defendant no.2 had threatened to forcibly evict the plaintiff.
25. Admittedly, the defendant no.2 had acquired interest in the suit property and therefore had motive to evict the plaintiff. The defendant no. 2 has himself stated in his written statement and in defence evidence that the plaintiff has been persistently defaulting in payment of rent. His plea that he simply asked the plaintiff to pay rent and never threatened to dispossess the plaintiff is difficult to believe.
26. The defendant no.2 has not elaborated on his alibi. He has not explained as to where he was on 12.01.2011 and 13.01.2011 if not at the spot of incident. A mere bald denial is not adequate to discredit the testimony of PW1.
27. The testimony of PW1 to the effect that the plaintiff was threatened by defendant No.2 has remained consistent, cogent and convincing. The plaintiff has succeeded in proving that he was threatened with forcible dispossession by defendant no.2.
Prabhat Shankar Vs. Jai Pal Singh & Ors. CS 114/11 12/21
Defendant no.3
28.PW1 has stated in his affidavit Ex PW 1/A that on 12.1.2011 and 13.1.2011, he was threatened by defendant no.3 to be dispossessed by unlawful means. The defendant no.3 has not filed any written statement and has not denied this allegation. An assertion of fact not denied is deemed to have been admitted and is not required to be proved, in terms of section 58 of the Evidence Act, 1872.
29.Besides, PW1 has stated in his affidavit Ex PW 1/A that defendant no.3 had advanced threats to him on different occasions. Nothing to the contrary was brought out during crossexamination or in evidence on behalf of defendant no.
3. It has therefore been incontrovertibly proven that defendant no.3 had threatened to forcibly dispossess the plaintiff.
30. The plaintiff has succeeded in demonstrating that he was threatened with forcible dispossession by defendant nos. 2 and 3.
Cause of Action
31. The expression "cause of action" has been succintly explained by Hon'ble High Court of Delhi in the case of Kanwal Kishore Manchanda & Anr. V. S.D.Technical Services Pvt. Ltd. 121(2005) DLT 98 in which it was observed as follows:
"What then is a cause of action? Till there is no cause, there cannot be any action. For a cause, there has to be a right to sue. Infringement of a right or a clear and unequivocal threat to infringe that right would constitute a cause to Prabhat Shankar Vs. Jai Pal Singh & Ors. CS 114/11 13/21 bring an action. Whether a particular threat gave rise to a compulsory cause of action depends, upon the question whether that threat effectively invades or jeopardises the right. To constitute a cause of action, first is the coming into existence of a right and secondly , its infringement or threat to be infringed."
32. As demonstrated above, the plaintiff has failed to prove that he was threatened by the defendant no. 1. Hence, the plaintiff has no cause of action against the said defendant. The plaintiff has however unerringly proved by the testimony of PW1 that the defendant nos. 2 and 3 had threatened to forcibly dispossess him from the suit property. The incidents that occurred on 12.01.2011 and 13.01.2011 when threats were advanced have been fully described. The plaintiff has therefore succeeded in proving that he has cause of action against defendant nos. 2 and 3. The issue is partly decided in the favour of plaintiff and against defendant nos. 2 and 3.
ISSUE NO.2 "Whether the plaintiff is in settled possession of the suit property? OPP"
33. The onus to prove this issue is upon the plaintiff. The plaintiff has claimed to be in settled possession of the suit property. In support of this plea, the plaintiff has relied upon his own testimony as PW1. PW1 has stated in his affidavit Ex PW 1/A that the plaintiff has been in occupation of the suit property as a tenant since "almost 30 years". In crossexamination, PW1 has stated, " I am staying in the suit property since 1987. The property was let out to me." Nothing to the contrary could be brought out during further crossexamination. There is no Prabhat Shankar Vs. Jai Pal Singh & Ors. CS 114/11 14/21 reason to disbelieve the testimony of PW1. The defendants have also not led any evidence to rebut this statement of the plaintiff. In his affidavit Ex DW1/A, the defendant no.1 has admitted that the plaintiff was inducted in the suit property as tenant. DW1 further admitted during his crossexamination, "it is correct that the plaintiff is in long continuous possession of the suit property since its inception being the tenant". The occupation of the plaintiff has remained lawful and continuous. The said occupation qualifies as "settled possession".
34. In the case of Rame Gowda and others V. M. Varadappa Naidu AIR 2004 SC 4609, the Hon'ble Supreme Court explained as to what constitutes settled possession. It was observed that a casual act of possession, or a stray act of trespass does not qualify as settled possession. It was noted that settled possession must be effective, undisturbed and known to the owner. In the present case, there is ample evidence on record to establish that the plaintiff has been in actual physical possession of the suit property since almost three decades. It is also evident from the record that this possession was continuous, open, known to the owner and acquiesced to by the latter. These attributes unerringly point towards settled and peaceful possession. The plaintiff has thus succeeded in proving that he is in settled possession of the suit property. The issue is decided in favour of the plaintiff against the defendants.
Prabhat Shankar Vs. Jai Pal Singh & Ors. CS 114/11 15/21
ISSUE NO.3
"Whether the plaintiff is entitled to permanent injunction restraining the defendants from disturbing the peaceful possession of the plaintiff without due process of law? OPP."
35. The onus to prove this issue is upon the plaintiff. The plaintiff has prayed for permanent injunction restraining the defendants from disturbing his peaceful possession over the suit property without due process of law.
36. It has already been noted above that the plaintiff has been in settled possession of the suit property. That being so, the plaintiff cannot be dispossessed without due process of law as held by Hon'ble Supreme Court in the case of Rame Gowda and others V. M. Varadappa Naidu AIR 2004 SC 4609. In that case, it was held that a person in settled possession is entitled to permanent injunction restraining even the true owner from disturbing his possession without due process of law. It was observed as follows:
"If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking law in his own hands and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force.
xxx xxx xxx It is the settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner. The concept of settled possession and the right of the possessor to protect his Prabhat Shankar Vs. Jai Pal Singh & Ors. CS 114/11 16/21 possession against the owner has come to be settled by a catena of decisions."
The same view was echoed in the cases of Bhagabat Pradhan and others v. Laxman Pradhan and others AIR 2004 NOC 53 (Orissa), M/s. S. S. Fasteners v. Satya Paul Verma AIR 2000 P & H 301, Shri Balaji Trading Co. v. Veeraswamy Srinivasan CRP No. 2626 of 1979 dated 7.8.1979 (Andhra) and Hem Chand Jain v. Anil Kumar and Anr. 1992 RLR 224.
37. Ld Counsel for defendant Nos.1 and 2 has argued that the plaintiff has not disclosed the correct rate of rent. It is submitted that the plaintiff has not been regularly paying rent. This submission is disputed by Ld. Counsel for the plaintiff, according to whom, the rate of rent has been correctly disclosed and the rent has been regularly tendered. In my opinion there is no need to determine the correct rate of rent. This is not a suit for recovery of arrears of rent. By the present suit, the plaintiff has prayed for permanent injunction against forcible dispossession. Even if the plaintiff has not been regularly paying rent, the defendants can evict the plaintiff only in accordance with law and not by use of force. Hence, there is no need to decide as to what was the rate of rent or whether the said rent is being regularly paid by plaintiff.
38. The plaintiff has thus succeeded in proving that he has a right not to be forcibly dispossessed from the suit property. It remains to be examined as to whether the plaintiff is entitled to grant of injunction to protect this right. In order to make out a case for grant of injunction, the plaintiff has to demonstrate not only the Prabhat Shankar Vs. Jai Pal Singh & Ors. CS 114/11 17/21 existence of the right but also a threat of invasion of the said right. An injunction is granted only when the injury to the rights of plaintiff is reasonably expected. An injunction is not issued to restrain a person from doing that which he is not attempting or intending to do. Injunction therefore does not lie in absence of actual or presently threatened interference. It is not sufficient for issuance of injunction that the injury may possibly result from the act sought to be prevented. There must be at least a reasonable probability that the injury will be caused if no injunction is granted.
In the case of Bheekam Chand v. Ismail AIR 2006 Raj 1, the Hon'ble Rajasthan High Court held that where there is no threat of forcible dispossession, the plaintiff is not entitled to the grant of any injunction restraining such dispossession.
In the case of Sohan Singh v. Jhaman, (P&H) 1986 R.R.R. 579, the Hon'ble Punjab and Haryana High Court observed as under:
"In other words, there must be some overt act on the part of the defendant to invade or a threat to invade the plaintiff's right or commission of an act on the part of the defendant which is contrary to the plaintiff's rights. Except in so far as the above contingencies, no perpetual injunction could be granted against the defendant under the Act. "
39.In the present case, it has already been observed that threat of forcible dispossession has emanated from defendant nos. 2 and 3 and not from defendant no. 1. It has been concluded that the plaintiff has no cause of action against defendant no. 1. As such, there is no reasonable apprehension of invasion of Prabhat Shankar Vs. Jai Pal Singh & Ors. CS 114/11 18/21 rights of the plaintiff by defendant no. 1. An injunction cannot be granted merely to allay the fears and apprehensions of individuals. The mere fact that the injunction against the defendant would not cause any harm to him does not authorize its issuance. The injury to the rights of the plaintiff must be shown to be certain to occur if the defendant is not enjoined by way of injunction. This ingredient being conspicuously absent, the plaintiff is not entitled to the grant of injunction against defendant no. 1.
40.In so far as the plaintiff has been threatened by defendant nos. 2 and 3 with dispossession, there exists a reasonable probability of invasion of rights of plaintiff by defendant nos. 2 and 3. The plaintiff is therefore entitled to grant of permanent injunction restraining defendant nos. 2 and 3 and their associates from disturbing the peaceful possession of the plaintiff over the suit property without due process of law. This shall however be without prejudice to the right of the defendant nos. 2 and 3 to evict the plaintiff in accordance with law. The plaintiff is not entitled to grant of said relief against defendants No.1. The issue is partly decided in favour of plaintiff and against defendant nos. 2 and 3. ISSUE NO.4 "Whether the plaintiff is entitled to injunction restraining the defendants and their representatives from extending threats to the plaintiff to get the property vacated without due process of law? OPP."
41. The onus to prove this issue is upon the plaintiff. The plaintiff has prayed for "mandatory injunction" restraining the defendants from extending threats to the plaintiff to get the property vacated without due process of law. According to the Prabhat Shankar Vs. Jai Pal Singh & Ors. CS 114/11 19/21 plaintiff, the defendants have been threatening to forcibly dispossess the plaintiff from the suit property.
42.Although the plaintiff has termed the injunction sought by him as "mandatory injunction", the nature of injunction being prayed for is essentially prohibitory and shall therefore be deemed to be permanent injunction. It is the substance and not the form of the relief prayed for that is relevant. The above error is therefore not material and may be overlooked.
43.It has already been noted above that threats to the plaintiff were not advanced by defendant No. 1 and therefore the plaintiff has no cause of action against the said defendant. The plaintiff is therefore not entitled to the present relief against the said defendant.
44.The prayer of the plaintiff against any of the defendants cannot be acceded to.
This is because the prayer of the plaintiff is not to restrain the defendants from forcibly dispossessing the plaintiff but from extending threats to do so. Mere advancement of threats cannot be restrained. An expression of intention to get the property vacated does not, by itself, infringe the rights of the plaintiff. The right to express oneself is a valuable right guaranteed by Article 19(1)(a) of the Constitution of India on which no unreasonable fetters can be placed. Further, even if such a decree was to be passed, it would not be executable and would therefore be rendered nugatory and ineffective. Moreover, the injunction that the plaintiff is seeking requires a continuous duty to be performed by the Court and the Court cannot supervise its enforcement. For the above reasons, the Prabhat Shankar Vs. Jai Pal Singh & Ors. CS 114/11 20/21 plaintiff is not entitled to permanent injunction restraining the defendants from extending threats, as prayed. The issue is decided against the plaintiff and in favour of the defendants.
ISSUE NO.5 RELIEF
45. In the aforesaid facts and circumstances, the suit is partially decreed in favour of plaintiff and against defendant nos. 2 and 3. A decree of permanent injunction is passed in favour of the plaintiff restraining the defendant nos. 2 and 3, their agents, servants, assigns and associates from disturbing the peaceful possession of the plaintiff over property No. WZ549A, first floor room, Naraina Village, Naraina Vihar, New Delhi110028, shown in red colour in the site plan Ex. PW1/1, without due process of law. The defendant nos. 2 and 3 shall, however, be at liberty to recover possession of the said property in accordance with law. The plaintiff shall also be entitled to recover costs of the suit from defendant nos. 2 and 3. The suit is dismissed against defendant no. 1. Decree sheet shall be prepared accordingly. File be consigned to record room.
Announced in the open Court on
May 30, 2011 (Ashish Aggarwal)
Civil JudgeI, South West District,
Dwarka Courts, Delhi
Prabhat Shankar Vs. Jai Pal Singh & Ors. CS 114/11 21/21