Delhi District Court
Zubairul Abidin vs Sameena Khan on 9 April, 2015
Zubairul Abidin Vs Sameena Khan
IN THE COURT OF CIVIL JUDGE02 (SOUTH)
SAKET COURTS COMPLEX, NEW DELHI
In the matter of :
CS No. 24/2013
Dr. Zubair Ul Abidin,
S/o Dr. Zia Ul Abidin,
R/o A46, Lane No.6,
Batla House, Jamia Nagar,
New Delhi 110025 ....Plaintiff
Versus
1. Ms. Sameena Khan,
D/o Sh. Abdul Rehman Khan,
R/o B18, Gali No.8, G. F,
Johari Farm, Jamia Nagar,
New Delhi 110025
2. Sh. Saleem
S/o Sh. Abdul Rehman Khan (Deleted)
3. Sh. Anwar,
S/o Sh. Abdul Rehman Khan (Deleted)
4. Ms. Farha Khan,
D/o Sh. Abdul Rehman Khan (Deleted)
5. Sh. Saleem
W/o Sh. Shahnawaz (Deleted)
6. Sh. Shahnawaz Khan,
S/o Sh. Shahid Khan, (Deleted)
Both R/o 5121, Sharif Manzil,
Ballimaran, Delhi 6 ....Defendants
Date of Institution : 23.02.2012
Date of Reserving Judgment : 09.04.2015
Date of Decision : 09.04.2015
Final Decision : Dismissed
CS No. 24/13 Page 1 of 8
Zubairul Abidin Vs Sameena Khan
J U D G M E N T
( Suit for Permanent Injunction)
1. This is a suit for permanent injunction against the defendants.
2. Briefly stated, case of the plaintiff is that the plaintiff is a medical practitioner by profession. That plaintiff came into the contact of defendant no.1 and financially helped the defendant no.1 trusting upon her. That defendant no.2 & 3 are brothers and defendant no.4 & 5 are sisters of defendant no.1. That defendant no.6 is brother in law of the defendant no.1. That defendant no.1 mesmerized the plaintiff to get married with her and defendant no. 1 and plaintiff agreed for the said marriage under the influencing circumstances. Therefore, a simple Nikah was performed between the plaintiff and defendant no.1 on 07.02.2012 before the Qazi At Hazrat Nizamuddin, New Delhi. That shockingly immediately after marriage , the plaintiff came to know the motive of the defendants to somehow extract money and grab and usurp the plaintiff's assets and property as well as that of his family. That immediately after the said so called marriage, defendant no.1 demanded Rs. 4,00,000/ from the plaintiff on the pretext of depositing the same for her studies fees and threatened the plaintiff to get transferred his flat in her name. That on refusal by the plaintiff, defendant no.1 alongwith other defendants showed their annoyance with the plaintiff and started misbehaving with him and even went to the extent of threatening the plaintiff for dire consequences by involving plaintiff and his family in false case. That having no other option, plaintiff pronounced Talaq/Divorce to the defendant no.1 according to Shariat (Muslim) Law on 15.02.2012. That after this, CS No. 24/13 Page 2 of 8 Zubairul Abidin Vs Sameena Khan defendants showed their hostile and volatile behaviour towards the plaintiff and his family members and they started looking for the plaintiff in order to abduct him and to torture him mentally and physically. That plaintiff has given a written complaint dated 17.02.2012 against defendants. That on 19.02.2012, defendants no. 1 to 3 came at the Safdarjung Hospital when the plaintiff was on duty and they misbehaved and harassed the plaintiff before the colleagues and other hospital staff and picked/stolen the plaintiff's bag from the doctors duty room which contained bank cheque books, passbook, plaintiff's doctors stamp with registration number etc. That a written complaint dated 19.02.2012 was also made in this regard but no action has been taken so far. Hence, the present suit is filed by the plaintiff.
3. Upon service of the summons, defendant no.1 to 4 appeared and file their WS denying the allegations as contained in the plaint. Defendant no.2 to 6 during the proceedings were dropped from the array of the parties in view of the statement made by the plaintiff.
Defendant no.1 in her WS stated that the present suit has been filed without any cause of action. That plaintiff has not come to the court with clean hands and suppressed the material facts. Thus, on the above said grounds the defendant prayed that the suit of the plaintiff be dismissed.
4. No replication was filed by the plaintiff to the WS of defendant.
CS No. 24/13 Page 3 of 8Zubairul Abidin Vs Sameena Khan
5. On the basis of pleadings of the parties, following issues were framed vide order dated 11.12.2013:
1. Whether the plaintiff is entitled to a decree of permanent injunction for restraining the defendants from visiting the house of the plaintiff, forcibly entering into the said house, creating nuisance to the plaintiff as prayed for? OPP
2. Whether the plaintiff is entitled to a decree of permanent injunction restraining the defendants from visiting Safdarjung Hospital and interfering in duties of the plaintiff as prayed for? OPP
3. Relief, if any.
6. In order to prove his case, the plaintiff examined himself as PW1 and tendered his evidence by way of an affidavit Ex.PW1/1. He also relied upon documents Ex.PW1/A to Ex.PW1/C, Mark D & E and ExPW1/F. Plaintiff also examined two more witness i.e. ASI Jai Kishan & Ct. Moinuddin as PW2 & PW3 and thereafter, plaintiff closed his evidence.
Defendant on the other hand, failed to lead DE despite being given opportunity. Accordingly, DE was closed vide order dated 04.03.2015.
7. I have heard the contentions of both the sides and also gone through the record carefully. My issuewise findings are as under:
ISSUE NO.1 Whether the plaintiff is entitled to a decree of permanent injunction for restraining the defendants from visiting the house of the plaintiff, forcibly entering into the said house, creating nuisance to the plaintiff as prayed for? OPP CS No. 24/13 Page 4 of 8 Zubairul Abidin Vs Sameena Khan
8. The onus to prove this issue was upon the plaintiff. Ld. Counsel for the plaintiff argued that the plaintiff has already given divorce to defendant no.1 so she is no more legally wedded wife of the plaintiff and has no right to visit the house of the plaintiff. It is further argued that the plaintiff has the apprehension that defendant no.1 will create nuisance and disturb the peaceful life of the plaintiff by forcibly entering into the house of the plaintiff so she be restrained from doing so. In support of his case, plaintiff has relied upon the police complaints filed on record marked as Ex. PW2/A, Mark E & Mark F. Plaintiff has also relied upon documents Ex.PW1/A i.e. Talaqnama.
On the other hand, Ld. Counsel for the defendant argued that witnesses PW2 & PW3 have deposed contrary in their cross examination to their examination in chief so they cannot be relied upon and the complaints placed on record cannot be said to be proved. Further, the complaint Mark F has also not been proved in accordance with law as no witness from the concerned department has been called to prove the same. It is further argued that the Talaqnama relied upon by the plaintiff is already under challenge before the Hon'ble High Court of Delhi. Moreover, the same is not a proper Talaq as per law. In support of his arguments Ld. Counsel relied upon judgment passed by Hon'ble Supreme Court of India in case titled Shamim Ara Vs State of U. P. & Anr decided on 01.10.2002 and judgment passed by Hon'ble High Court of Delhi in case titled as Masroor Ahmed Vs State (NCT of Delhi) & Anr. decided on 03.10.2007. It is further argued that there is no cause of action with the plaintiff. Hence, the suit deserves to be dismissed.
CS No. 24/13 Page 5 of 8Zubairul Abidin Vs Sameena Khan
9. Injunction is a discretionary relief which is always granted to the person coming before the Court with clean hands without concealing any material fact. It is a settled principle of law that a person seeking equity must do equity. Now in view of the abovesaid principle and the evidence led, let us see whether the plaintiff is entitled to the relief sought as above.
In the cross examination of PW1 the witness stated to have been worked with Safdarjung Hospital from January 2010 till 31.12.2010. There is no proof on record placed by the plaintiff to show his employment with the Safdarjung Hospital at the time of filing of this suit or at the time of the alleged incident for which the complaint dated 19.02.2012 was filed with PSSafdarjung Enclave. The complaint Mark F has not been proved in accordance with law which is the main basis for the present suit. During the arguments, Ld. Counsel for plaintiff submitted that an FIR was registered against the defendant no.1 qua the theft of bag but no such record has been filed on judicial record. No evidence to that effect has been led by the plaintiff. I further agree with the argument put forth by Ld. Counsel for the defendant that the witnesses PW2 and PW3 have not supported the case of the plaintiff so the complaints does not have much value to support the case of the plaintiff.
It is very important to note here that not even a single witness has been examined by the plaintiff who are alleged to have witnessed the alleged incidents of harassment as claimed by the plaintiff. The issue of validity of Talaq between the parties is not before the Court and it is not disputed that the same is under challenge before the Hon'ble High Court of Delhi so this Court would restrain from giving any finding to that effect. But at least to CS No. 24/13 Page 6 of 8 Zubairul Abidin Vs Sameena Khan support his averment, plaintiff could have call one of the witness to the Talaqnama which has not been called. Nothing on record suggest that the plaintiff has apprehension for being harassed by the defendant no.1. The evidence led by the plaintiff is not cogent enough to enable the plaintiff to discharge the onus lying upon his shoulders and hence, he has failed to do so.
In view of the observations given above and the evidence led, this issue stands decided in favour of the defendant and against the plaintiff.
ISSUE NO.2 Whether the plaintiff is entitled to a decree of permanent injunction restraining the defendants from visiting Safdarjung Hospital and interfering in duties of the plaintiff as prayed for? OPP
10. The onus to prove this issue was upon the plaintiff. In addition to the observations finding given in issue no.1, it has come on record in the cross examination of PW1 that the plaintiff currently is not attached with any hospital and is only preparing for his post graduation exam. Meaning thereby the plaintiff is not working with Safdarjung Hospital so question of restraining the defendant from visiting Safdarjung Hospital does not arise. This prayer automatically becomes infructuous since the plaintiff is no more employed with the aforesaid hospital. Accordingly, this issue also stands decided in favour of the defendant and against the plaintiff.
CS No. 24/13 Page 7 of 8Zubairul Abidin Vs Sameena Khan Relief:
11. As a consequence to my findings on the above mentioned issues, suit of the plaintiff is hereby dismissed. Parties to bear their own costs. Decree sheet be prepared accordingly.
12. File be consigned to the record room after due compliance.
Announced in the open Court
on 09.04.2015 (Vishal Pahuja)
CJ02 (South)/Saket Courts
New Delhi/09.04.2015
CS No. 24/13 Page 8 of 8