Delhi District Court
Sh. Ravi Shanker vs Sh. Raju on 27 November, 2018
: 1:
IN THE COURT OF MS. DHANASHREE DEKA, CIVIL JUDGE05,
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
CS No. 599754/2016
1.Sh. Ravi Shanker S/o Late Sh. Tara Chand R/o 6413 (2nd Floor), Gali Kalyan, Katra Bariyan, Fatehpuri, Delhi110006.
2. Smt. Sharda Devi W/o Late Sh. Hari Narain R/o 6413 (1st Floor), Gali Kalyan, Katra Bariyan, Fatehpuri, Delhi110006.
3. Sh. Jitender S/o Late Sh. Ram Chander R/o 6413 (1st Floor), Gali Kalyan, Katra Bariyan, Fatehpuri, Delhi110006.
4. Sh. Dharmender S/o Late Sh. Ram Chander R/o 6413 (1st Floor), Gali Kalyan, Katra Bariyan, Fatehpuri, Delhi110006.
....... Plaintiffs Versus
1. Sh. Raju S/o Late Sh. Ram Narain R/o 6413 (2nd Floor), Gali Kalyan, Katra Bariyan, Fatehpuri, Delhi110006.
Ravi Shanker v. Raju Page No. 1 Of 22 : 2:2. Sh. Suresh S/o Late Sh. Ram Narain R/o 624A (3rd Floor), Kucha Shiv Mandir, Naya Baans, Fatehpuri, Delhi110006.
3. Sh. Rakesh S/o Late Sh. Ram Narain R/o 6413, (2nd Floor), Gali Kalyan, Katra Bariyan, Fatehpuri, Delhi110006.
4. Sh. Ashoka S/o Late Sh. Ram Narain R/o 6413, (2nd Floor), Gali Kalyan, Katra Bariyan, Fatehpuri, Delhi110006.
Second Address:
House No. 6/248, 5 Gali No.6 (Top Floor), Lalita Park, Laxmi Nagar, Delhi110092.
5. (a) Smt. Anjana Srivastav Address 6411, Gali Kalyan, Katra Bariyan, Fatehpuri, Delhi110006.
(b) Master Ritik Srivastav Through Guardian Smt. Anjana Srivastav Address 6411, Gali Kalyan, Katra Bariyan, Fatehpuri, Delhi110006.
6. Smt. Umesh Ravi Shanker v. Raju Page No. 2 Of 22 : 3: W/o Sh. Ramesh Chander R/o 6413, (1st Floor), Gali Kalyan, Katra Bariyan, Fatehpuri, Delhi110006.
7. Sh. Vimal @Pappy S/o Late Sh. Ramesh Chander R/o 6413, (1st Floor), Gali Kalyan, Katra Bariyan, Fatehpuri, Delhi110006.
8. Smt. Premwati D/o Late Sh. Jai Narain (also W/o Late Sh. Dal Chand), R/o 2084/301, Chander Kunj, Katra Gokul Shah, Bazar Sitaram, Delhi110006.
9. Sh. Shyam Sunder Srivastava (Dropped) S/o Late Smt. Chandro and Late Sh. Narain Dass Shop No.2765, Gali Arya Samaj, Bazar Sita Ram, Delhi110006.
10. Sh. Mukesh S/o Late Sh. Ram Narain R/o 6413, Gali Kalyan, Katra Bariyan, Fatehpuri, Delhi110006. .... Defendants SUIT FOR MANDATORY AND PERMANENT INJUNCTION Date of Institution : 02.04.2009 Date of Judgment : 27.11.2018 EXPARTE JUDGMENT Ravi Shanker v. Raju Page No. 3 Of 22 : 4:
1. Vide this judgment, the present suit for mandatory and permanent injunction filed by the plaintiffs against the defendants shall be disposed off.
2. Brief facts, as per the plaint, is as under:
(i) The the plaintiffs and defendants are the legal heirs of Late Sh. Jai Narain and Late Smt. Mohro Devi.
(ii) That Sh. Jai Narain and Smt. Mohro Devi, who are husband and wife, were joint owners of their self acquired property bearing no. 64116414, Gali Kalayan @ Kalalal, Katra Bariyan, Fathepuri, Delhi06 (hereinafter referred to as 'suit property'), having purchased the same vide registered sale deed dated 12.01.1961. A part of the suit property was built up and the remaining portion was built by Late Sh. Jai Narain to meet the family requirement. The said construction still exists in the same form. The first and second floors are residential whereas the entire ground floor is commercial.
(iii) That Late Sh. Jai Narain and Smt. Mohro Devi died intestate leaving behind five sons namely (i) Tara Chand (ii) Hari Narain (iii) Ram Chander (iv) Ram Narain & (v) Ramesh Chand and one living daughter Smt. Premwati, widow of Late Sh. Dal Chand.
(iv) That on the first floor, three sons i.e. Sh. Ram Chander, Sh. Ramesh Chand and Sh. Hari Narain were living with their families in one room each, whereas on the second floor, other two sons i.e. Sh. Ram Ravi Shanker v. Raju Page No. 4 Of 22 : 5: Narain and Sh. Tara Chand had been living with their families in one room each.
(v) In order to seek independent right in the joint ownership property, the father of present plaintiffs no. 3 and 4 i.e. Sh. Ram Chander filed a civil suit for partition and rendition of account in the court of Sh. J.B. Goel, the then Ld. ADJ, Delhi. A preliminary decree was passed on 16.09.1982. Thereafter, on request of DH, a Local Commissioner visited the suit property on 10.09.1983 and submitted his report before the court on 17.09.1983. The parties filed their objection to the report of local commissioner alleging that the local commissioner was influenced by Sh. Ram Narain and that he had exceeded his jurisdiction by recording statement of the parties to that suit. All the coowners (legal heirs) opted to rely upon the report of local commissioner filed before court and not to pursue the matter. Accordingly, they executed a SPA in favour of Sh. Ramesh Chand to deal with the tenants and maintain a common record for expenditure incurred on maintenance, house tax etc and the same continued until Sh. Ramesh Chand expired on 07.05.2006.
(vi) Until Sh. Ramesh Chand was alive, there was no dispute. After his death, the defendants orally expressed faith in Sh. Hari Narain but avoided to cooperate with him and also threatened the tenants not to cooperate with Sh. Hari Narain. Sh. Hari Narain expired on 17.08.2008.
(vii) The defendants refused to maintain record of rent and income accrued from the suit property or of expenses incurred on its maintenance.
Ravi Shanker v. Raju Page No. 5 Of 22 : 6:Defendants attempted to forcibly dispossess the plaintiffs from the suit property, without following due process of law. They raised rumors that the plaintiffs have abandoned their shares in the suit property.
(viii) As on date, at the ground floor in shop marked A, Mr. Anwar who is a barber is a tenant, and in portion marked B, Sh. Suresh Kumar Panniwale is a tenant and in portion marked C, the defendants no. 1 and 2 are working as caretakers and doing tea vending. In portion marked D, there is godowncumshop under the tenancy of Mr. Maharaj Singh whereas in portion marked E, the name of tenant is Mr. Madan Lal doing optical work.
In this background, plaintiffs have filed the present suit against the defendants seeking mandatory injunction, thereby directing the defendants to disclose/place on record the entire details and transactions (during the past one year), if any or deal settled or negotiated with any person including tenant with regard to the suit property, to direct the defendants to disclose deals settled, if any, whether in full or in part, and also to disclose the amount of rent received by them from tenants of the suit property. It is further prayed that a decree for permanent injunction may also be passed in favour of the plaintiffs and against the defendants, thereby restraining the defendants, their agents, servants, representatives, henchmen etc. from creating any third party interest in the suit property and for restraining the defendants from forcibly dispossessing the plaintiffs from the suit property, without due process of law.
Ravi Shanker v. Raju Page No. 6 Of 22 : 7:3. Defendant no. 1 to 5 filed their joint WS, wherein they took the preliminary objection that suit is bad for nonjoinder of Sh. Sham Sunder, who is the son of a pre deceased daughter of Sh. Jai Narain and Smt. Mohro Devi. On merits, they admit that they have been collecting rent from the tenants in the suit property but aver that they are doing the same with the consent and knowledge of the plaintiffs. They have mentioned the names of the tenants of the suit property and dues outstanding from them, which is as under:
i. Sh. Maharaj Singh oustanding dues w.e.f. August 2007 to March 2009 @ Rs.200/ per month totaling Rs.4,000/. ii. Sh. Rajinder Kumar oustanding dues w.e.f. April 2008 to March 2009 @ Rs.145/ per month totaling Rs.1,740/. iii. Sh. Madan Lal oustanding dues w.e.f. April 2008 to March 2009 @ Rs.50/ per month totaling Rs.600/.
iv. Sh. Sumit Kumar oustanding dues w.e.f. February 2009 to March 2009 @ Rs.250/ per month totaling Rs.500/. It is averred that Sh. Sumit Kumar had paid Rs.30,000/ to the said defendants at the time of taking possession of the shop concerned and that the said amount was spent on House Tax, maintenance etc. It is further averred that prior to that, one Sh. Tagore Kumar was tenant therein who left the portion of the suit property with outstanding dues w.e.f. April 2008 to March 2009 @ Rs.200/ per month totalling to Rs.2400/.
The said defendants have further averred that rent collected Ravi Shanker v. Raju Page No. 7 Of 22 : 8: by them from the tenants of the suit property has been used for regular maintenance of suit property and for carrying out necessary repairs in the same, from time to time. All other allegations in the plaint have been denied. Alleging that suit of the plaintiff is devoid of merit, they pray for dismissal of the suit.
4. Defendant no. 6 and 7 filed their joint WS, wherein they took the preliminary objection that suit is bad for nonjoinder of Sh. Sham Sunder, who is the son of daughter of a pre deceased daughter of Sh. Jai Narain and Smt. Mohro Devi. On merits, it is averred that the said defendants have never created any third party interest in the suit property, nor have threatened the tenants in the suit property. It is further averred that they have not entered into any transaction or deal with any person with respect to the suit property. Alleging that the suit of the plaintiffs is devoid of merit, they pray for dismissal of the same.
5. Defendant no.8 filed a separate WS wherein it is averred that she is one of the joint owners of the suit property, being one of the LRs of Sh. Jai Narain and Smt. Mohro Devi. It is averred that defendant no.8 was earlier receiving some payment from her brothers towards her legitimate share in the income from the suit property, but further averred that she has not received any amount for a very long time and is surviving at the mercy of her relatives. It is further averred that a statement made by the said defendant before one Local Commissioner is inconsequential and without any force of law. Alleging that the suit of the plaintiff is devoid of merit, she Ravi Shanker v. Raju Page No. 8 Of 22 : 9: prays for dismissal of the same.
6. Plaintiffs filed separate replications to the joint WS of defendant no. 1 to 5, to the joint WS of defendant no. 6 & 7 and to the WS of defendant no.8, wherein they denied the contents of the aforesaid WS and reiterated the contents of the plaint.
7. Subsequently, defendant no. 9 and 10 were impleaded in the present suit, by way of allowing an application U/O 1 Rule 10 CPC. However, on 02.08.2011, defendant no.9 was deleted and the same is recorded in the ordersheet dated 02.08.2011. Defendant no.10 did not file WS in the present matter.
8. On 07.06.2012, an application U/O 22 Rule 4 CPC was allowed and LRs of defendant no.5 were impleaded in place of defendant no.5. In ordersheet dated 14.10.2015, it is recorded that defendant no.6 had expired leaving behind no LRs.
9. On the basis of the pleadings, Ld. Predecessor Judge vide order dated 30.10.2012, framed the following issues.
(i) Whether the plaintiff is entitled for decree of mandatory injunction, as prayed for? OPP
(ii) Whether the plaintiff is entitled for decree of permanent injunction, as prayed for? OPP
(iii) Whether the suit of the plaintiff is liable to be dismissed for nonjoinder of the necessary party? OPD
(iv) Relief.
Ravi Shanker v. Raju Page No. 9 Of 22 : 10 :10. Matter was then put up for PE. Plaintiff stepped into witness box as PW1 and tendered his evidentiary affidavit as PW1/A and relied upon following documents:
Sr. Exhibits/ Marks Description of documents No. 1. Ex.PW1/1 (OSR) Copy of ration card. 2. Ex.PW1/2 Site plan. 3. Ex.PW1/B Copy of plaint.
11. Remaining examination in chief of PW1 was deferred, however, on PW1 did not tender any further remaining evidence.
12. Summoned witness Sh. Chhedi Lal Mourya, JA, Record Room Sessions, THC, Delhi deposed as PW2 and proved the following documents:
Sr. Exhibits/ Marks Description of documents
No.
1. Ex.PW2/1 (Colly) Certified copy of plant, WS, replication and
court proceedings of Suit No. 104/1981.
2. Ex.PW2/2 (Colly) Certified copy of complete Misc. file No.33/84.
13. Counsel for defendant chose not to cross examine PW2, despite being given opportunity to do so. Thereafter, PE was closed on 07.04.2017.
14. Defendants stopped appearing in the present matter and they Ravi Shanker v. Raju Page No. 10 Of 22 : 11 : were proceeded exparte vide order dated 07.04.2017.
15. Exparte final arguments heard. Record perused.
16. My issuewise finding is as under:
17. For the sake of a reasoned flow of the Judgment, issue No. 3 which is framed on the pleadings of the defendants against the maintainability of the suit is decided prior to the issue No. 1 and 2, which are framed on the basis of the pleadings of the plaintiffs. Issue no.3:
Whether the suit of the plaintiff is liable to be dismissed for non joinder of the necessary party? OPD.
18. Onus of proving this issue is upon the defendants. Defendant no.1 to 5 and defendant no. 6 and 7, vide their separate written statements, have raised the preliminary objection that the present suit is bad for nonjoinder of Sh. Sham Chander, who is a necessary party being the son of predeceased daughter of Sh. Jai Narain and Smt. Mohro Devi. Perusal of the plaint shows that plaintiffs have filed the present suit for permanent and mandatory injunction against the existing defendants thereby directing them to disclose the details of rent received by them from the tenants of the suit property and to disclose details of any transaction/deal settled or negotiated by them with respect to the suit property. All allegations made in the plaint are against the existing defendants. Neither any allegation has been made against aforesaid Sh.
Ravi Shanker v. Raju Page No. 11 Of 22 : 12 :Sham Chander, nor any relief has been sought against him. As such, court is of the finding that Sh. Sham Chander is not a necessary party to the present suit and thus, the suit is not bad for his nonjoinder. Accordingly, present issue is decided in favour of the plaintiffs and against the defendants.
Issue no.1.
Whether the plaintiff is entitled for decree of mandatory injunction, as prayed for? OPP
19. Onus of proving this issue is upon the plaintiffs. Plaintiffs allege that the defendants of the present case are collecting rent from the tenants of the suit property and they pray that the defendants be directed to disclose the rent received by them from the suit property. From plain reading of the prayer(a) of the plaint, what is noticed is that vide the present suit, plaintiffs have essentially sought rendition of accounts of the rent received by the defendants from the suit property. In other words, plaintiffs had the equally efficacious remedy of seeking rendition of accounts from the defendants with respect to the rent allegedly received by the defendants from the suit property. However, plaintiffs have not sought relief of rendition of accounts and have sought the same in the garb of mandatory injunction. Section 41(h) of Specific Relief Act, 1963 provides that an injunction cannot be granted when equally efficacious relief can be obtained by other usual mode of proceeding. Considering that plaintiffs had the equally efficacious remedy of seeking rendition of accounts in the Ravi Shanker v. Raju Page No. 12 Of 22 : 13 : present matter, seeking the said relief in the garb of mandatory injunction is not permissible and on this ground alone, the aforesaid prayer in the plaint is found to be not maintainable.
20. Proceeding further, case of the plaintiffs is that Sh. Jai Narain and Smt. Mohro Devi are the joint owners of the suit property and the plaintiffs and the defendants, being their legal heirs, have inherited the same. However, plaintiffs have filed no material on record to substantiate the aforesaid averments. In other words, no title deed with respect to the suit property, executed in favour of Sh. Jai Narain and Smt. Mohro Devi has been placed on record. As such, the right, title or interest, if any of the parties to the suit over the suit property, which they have allegedly derived from Sh. Jai Narain and Smt. Mohro Devi, has remained unsubstantiated by any material on record. As such, there is no material on record for the court to arrive at the finding that the plaintiffs have any right, title or interest in the suit property so as to merit issuance of mandatory injunction in their favour and against the defendants, as prayer for.
21. Plaintiffs have averred in the plaint that the defendants are collecting rent from the tenants in the suit property. Defendant no.1 to 5, vide their joint WS, admit that they were collecting rent from some tenants in the suit property and have averred that they were doing the same with the consent and knowledge of the plaintiffs. In para7 of the aforesaid WS, defendant no.1 to 5 have mentioned the dues outstanding from various tenants of the suit property. They have further averred that out of the Ravi Shanker v. Raju Page No. 13 Of 22 : 14 : money collected by them from the tenants, they paid Rs. 6,840/ as house tax and spent Rs. 15,000/ in repairing the suit property. Considering that defendant no.1 to 5 have admitted that they were collecting rent from tenants in the suit property, aforesaid averment in the plaint is deemed proved as admitted, as per Section 58 of Indian Evidence Act. Plaintiff is thus, not required to lead evidence in support of the same.
22. However, perusal of the said WS further shows that defendant no.1 to 5 have already detailed the amount due from various tenants in the suit property as well as amount received by them and have further explained in what manner, amount received by them were spent in maintenance etc. of the suit property. In their replication to the aforesaid WS, plaintiffs have merely stated that the aforesaid averments in the WS of defendant no.1 to 5 are incorrect. However, the said denial is only a bald denial. If the case of the plaintiffs is that defendant no.1 to 5 had collected any further amount, in addition to that which is already disclosed in their WS, it was for the plaintiffs to lead evidence to that effect and show that defendants no.1 to 5 had received some further amount as rent but has not disclosed the same. However, plaintiffs have led no such evidence in the present case. In view of this as well, court is unable to reach the finding that any further rendition of account is to be made by defendant no. 1 to 5.
23. The averment in the plaint that defendants were collecting rent of the suit property was admitted by defendant no.1 to 5 but no such admission was made by the remaining defendants. As such, it was for the Ravi Shanker v. Raju Page No. 14 Of 22 : 15 : plaintiffs to lead evidence to substantiate their aforesaid averment in the plaint qua the remaining defendants. However, no such evidence has been led by the plaintiffs. Further, in para7 of the plaint, it is merely averred that the "defendants have also refused to maintain the record of rent if received from tenants". However, in the paint, plaintiffs have not explained as to how defendant no. 6 to 8 and 10 were liable to maintain the record of rent received by them from the tenants in the suit property. There is also no specific averment to the effect that defendant no.6 to 8 and 10 were receiving or had ever received rent from the tenants in the suit property. The averments in the plaint are only to the effect that the LRs of Sh. Jai Narain and Smt. Mohro Devi had authorized LR/Sh. Ram Chander to collect rent from the tenants in the suit property vide an SPA. However, he expired on 07.05.2006 and thereafter, the defendants expressed their faith on LR/ Sh. Hari Narain to collect rent from tenants. There is no averment in the plaint that defendant no. 6 to 8 and 10 were ever authorized to collect rent from the tenants in the suit property. Considering that there is no material to show that defendant no.6 to 8 and 10 had ever collected rent of the suit property or that they were liable to maintain accounts of any such rent, court is of the finding that the plaintiffs have not been able to establish a case to merit issuance of injunction to the remaining defendants i.e. defendants no. 6 to 8 and 10 to render account of money allegedly collected by them from the tenants of the suit property.
24. In support of their case, plaintiffs have filed on record copy of the Ravi Shanker v. Raju Page No. 15 Of 22 : 16 : proceedings including the judgment passed in an earlier suit for partition and rendition of account, bearing no. 104/81 which was filed by Sh. Ram Chander against the other LRs of Sh. Jai Narain. From perusal of the aforesaid judgment in Ex. PW2/1, it is noticed that a preliminary decree for partition of property bearing municipal no. 64116414, Gali Kalalan, Katra Bariya, Fatehpuri, Delhi was passed and a preliminary decree for rendition of accounts was passed in favour of plaintiff/ Sh. Ramesh Chander and defendant no.1(Sh.Ram Narain) defendant no.3 (Sh. Hari Narain) were held to be the accounting parties. Counsel for plaintiffs has argued that in view of the aforesaid preliminary decree, LRs of Sh. Ram Narain, who are defendants no. 1 to 5 in the present case, are liable to render accounts to the plaintiffs. However, the said preliminary decree do not go on to establish the case of the plaintiffs for reasons that firstly, as per the averments in the plaint itself, after passing of the aforesaid preliminary decree on 16.09.1982, the parties to the suit did not pursue the aforesaid matter. It is categorically averred in para5 of the plaint that all the co owners of the suit property opted not to pursue the aforesaid matter. In other words, it is admitted case of the plaintiffs that the aforesaid preliminary decree never culminated into a final decree. As such, right of the plaintiffs of the present suit regarding rendition of accounts with respect to the suit property was never crystallized in the form of a final decree. Secondly, the aforesaid preliminary decree was issued against Sh. Ram Narain, who is not a party in the present suit. There is nothing in the Ravi Shanker v. Raju Page No. 16 Of 22 : 17 : aforesaid preliminary decree to show the liability of the defendants of the present matter to render account to the plaintiffs.
25. Counsel for plaintiffs has also relied upon the annexures to report of local commissioner filed in the aforesaid suit for partition and rendition of account, which is in Ex. PW2/2. Perusal of the same reveal that in Annexure '1' of the aforesaid report of local commissioner, Smt. Premwati (defendant no. 8) had made a statement that she had relinquished her share in the suit property. Annexure 2 of said report is the statement of Sh. Ram Narain, father of defendant no.1 to 5 in the present case wherein he has stated that he had been receiving rent of a shop at the rate of Rs. 50/ p.m. since August, 1978 and that he had received Rs. 3000/ in total in cash. Court is, however, of the opinion that the aforesaid statements recorded by the local commissioner do not go on to aid case of the plaintiffs for the reason that as per averment in the plaint itself, certain objections were filed to the aforesaid report of the local commissioner which also included objection regarding the authority of the local commissioner to record statement of the parties to that suit. Further, perusal of order dated 08.11.1985 in Ex. PW2/2 shows that aforesaid report of the Local Commissioner was set aside and another Local Commissioner i.e. Sh. Sunil Kapoor was appointed with direction to file a fresh report. Considering that the aforesaid report of the Local Commissioner was set aside, court is of the finding that the admission of Sh. Ram Narain, father of defendant no.1 to 5 that he had received some Ravi Shanker v. Raju Page No. 17 Of 22 : 18 : rent of the suit property, as recorded in Annexure2 of the aforesaid report cannot be relied upon in the present matter. Further, for the same reason, court finds no reason to rely upon Annexure1 to the report of the local commissioner which is a statement made by defendant no.8 of the present case.
26. Plaintiffs have also sought that the defendants be directed to disclose details of transactions/deals made by them with any person qua the suit property, whether fully or partially and place original documents w.r.t. the same on record. However, plaintiffs have brought no material to show that any of the defendants had ever negotiated a deal or settled any transaction with any person w.r.t. the suit property. In fact, there is not even a clear and categorical allegation in the plaint to the effect that the defendants have made any such deal/transaction. Perusal of para7 of the plaint would show that the plaintiffs, have averred therein that the defendants be directed to disclose details and documents, if any regarding execution of any deal by them qua the suit property. As such, there is no clear averment to the effect that any transaction/deal/negotiation had actually been made or entered into by the defendants with any person w.r.t. the suit property. The plaint also does not mention any specific instance when defendants may have attempted to make any such deal or transaction. More importantly, plaintiffs admit that defendants are co owners of the suit property. In order to be entitled to the aforesaid reliefor attempted to make any deal w.r.t. the suit property exceeding their shares Ravi Shanker v. Raju Page No. 18 Of 22 : 19 : in the suit property. But the same has not been alleged, much less proved. In view of above discussion, court is of the finding that the plaintiffs have failed to establish a case so as to be entitled to the aforesaid relief.
27. In nutshell, what has transpired is that firstly, there is no material on record to show the right, title or interest, if any of the plaintiffs over the suit property. Secondly, there is no material on record to show that defendants no. 6 to 8 and 10 were authorized to or that they had ever collected rent of the suit property, to be liable render account thereof to the plaintiffs. Thirdly, as regards defendants no.1 to 5, there is no material on record to show that they had received any income accruing from the suit property, other than that already disclosed in their WS. Fourthly, there is no material on record to show that the defendants had ever made any deal/transaction with any person w.r.t. the suit property.
Thus, court reaches the finding that plaintiffs have failed to show that they are entitled to grant of mandatory injunction as prayed for. Present issue is decided in favour of defendants and against the plaintiffs. Issue no.2.
Whether the plaintiff is entitled for decree of permanent injunction, as prayed for? OPP
28. Onus of proving this issue is upon plaintiffs. Plaintiffs have prayed that a decree for permanent injunction be issued against the defendants, thereby restraining the defendants from creating any third party interest in the suit property. In para7 of the plaint, plaintiffs have Ravi Shanker v. Raju Page No. 19 Of 22 : 20 : averred that the defendants are liable to disclose deals or documents, if any which they may have executed with any third party with respect to the suit property. What is noticed from above is that it is not the case of the plaintiffs that any third party interest has indeed been created by the defendants w.r.t. the suit property or that defendants have ever attempted to create any such party interest in the suit property. If the case of the plaintiffs is that the defendants are threatening or attempting to alienate the suit property, the plaintiffs were required to specify as to when any such threat or attempt was made by the defendants to alienate the suit property. However, neither any incident has been specified nor any date has been mentioned in the plaint as to when the defendants attempted or threatened to create any third party interest in the suit property. There is no averment to the effect that the plaintiffs had ever filed any complaint against the defendants to restrain them from creating any third party interest in the suit property. As such, the plaintiffs have failed to establish a case in their favour so as to merit issuance of injunction to restrain the defendants from creating any third party interest in the suit property.
29. Plaintiffs have also prayed that mandatory injunction be issued in their favour and against the defendants, thereby restraining the defendants from dispossessing the plaintiffs from the suit property, without due process of law. In para7 of the plaint, it is averred that "it is also learned that the defendants are trying to forcible dispossession the plaintiff without following due process of law". From a plain reading of above, what Ravi Shanker v. Raju Page No. 20 Of 22 : 21 : appears is that it is not the case of the plaintiffs that defendants are actually attempting to dispossess them from the suit property but that they have merely learnt that the defendants are trying to dispossess the plaintiffs from the suit property. In other words, the plaintiffs do not allege any personal knowledge of the alleged attempts of the defendants to dispossess the plaintiffs from the suit property. The aforesaid averment is also found to be vague for the reason that firstly, it does not explain the source from which plaintiffs have learnt about the alleged attempt of the defendants to dispossess the plaintiffs. Secondly, the plaint does not mention any particular incident in which the defendant had attempted to dispossess the plaintiff. Thirdly, plaint also does not mention any date or time when any such attempt was made by the defendants. As such, the above averment in the plaint is found to be vague and the same are also unsubstantiated by any material on record. In other words, the plaintiffs have not filed any complaint to show that they have ever been threatened to be dispossessed by the defendants. In view of the above, no merit found in the aforesaid allegations in the plaint and accordingly, court finds no reason to restrain the defendants from forcibly dispossessing the plaintiffs from the suit property. Accordingly, no ground is made out to issue permanent injunction in favour of the plaintiffs and against the defendants either to restrain the defendants from alienating the suit property or to restrain them from dispossessing the plaintiffs from the suit property. Present issue is accordingly decided against the plaintiffs and in favour of Ravi Shanker v. Raju Page No. 21 Of 22 : 22 : the defendants.
30. Relief.
In view of above discussion, plaintiffs have failed to establish their case. Accordingly, present suit is dismissed. No order as to costs.
31. Decree sheet be prepared accordingly.
32. File be consigned to record room after due compliance.
Digitally signed by DHANASHREE DHANASHREE DEKA DEKA Announced in the open court Date: 2018.11.27 16:50:50 +0530 on 27th November, 2018. (Dhanashree Deka) Civil Judge05, Central District Tis Hazari Courts,Delhi
Present judgment consists of 22 pages and each page is signed by me.
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