Delhi District Court
Civil Suit No.205/15 vs Smt. Sushila @ Rajkumari on 27 January, 2016
Civil Suit no. 205/15
IN THE COURT OF Ms. TANVI KHURANA, CIVIL JUDGE01 (South)
SAKET COURTS NEW DELHI
In the Matter of:
Civil Suit No.205/15
Sh. Subhash Chand
S/o Late Sh. Hukum Chand
R/o DIInd, 333, Madangir,
New Delhi110062 ..........Plaintiff.
Versus.
1. Smt. Sushila @ Rajkumari
W/o Sh. Kailash
R/o. B914 Mangol Puri,
New Delhi
2. Sh. Suraj
S/o Late Sh. Hukum Chand
R/o DIInd, 333, Madangir,
New Delhi110062. ..........Defendants.
Suit for Permanent and Mandatory Injunction.
Re: Application under Order XXXIX Rule 1 & 2, CPC, 1908.
Present: None.
ORDER:
By this order, this court shall proceed to decide the application filed under Order XXXIX Rule 1 & 2 read with Section 151 CPC filed by the plaintiff/applicant seeking that the defendant, associates, agents, assigns and representatives be restrained from selling, disposing, transferring mortgaging, alienating or creating third party interest in the suit premises bearing no. Plot no. Sh Subhash Chand Vs. Smt. Sushila @ Rajkukmari Page 1 of 12 Civil Suit no. 205/15 D11, 333, measuring 250 Sq. feet situated at Madangir, New Delhi110062 (hereinafter referred as suit property).
2. Before the court proceed to decide the present application, it is imperative to give the brief resume about facts of the case. Plaintiffs' version as per plaint
3. Succinctly, the plaintiff has averred that the suit property was allotted by the slums and J.J. department to the father of the plaintiff, Sh. Hukum Chand around 40 years ago but due to financial problems, the parents of the plaintiff could not construct upon the plot in their life time and only a hut was constructed where all the three sisters and two brothers were born and resided. It is mentioned that the daughters got married during life time of the parents. The defendant no.1 is the sister of plaintiff whereas defendant no.2 is his brother. It was also mentioned that one of the sister of the plaintiff has already expired.
4. It is further mentioned that the petitioner does not have the means to construct over the house and therefore, in month of July, 2015 the petitioner had approached the builder to construct plot and it was arranged that the builder will construct up to fourth floor excluding the ground floor and will hand over the possession of ground, first and top floor to the petitioner and builder will get the possession of second and third floor and the constructions began on above said plot. It was further mentioned after the construction of the ground floor, defendant no.1 made objections. It is also mentioned that defendant no.2 has already sold his Sh Subhash Chand Vs. Smt. Sushila @ Rajkukmari Page 2 of 12 Civil Suit no. 205/15 share to the plaintiff and members of the family of the two sisters, Smt. Parvati and Smt. Kanta has also given no objection orally regarding the construction and possession of the premises. It was further mentioned that petitioner is ready to pay the value of share of defendant no.1 according to the circle rate whenever required. Hence, the present suit was filed seeking permanent injunction restraining the defendant from selling, disposing, transferring, mortgaging, alienating or creating third party interest in the suit premises. Defendants version as per the written statement:
Defendant no.1.
5. On notice, written statement was filed by defendant no.1 raising the objections against the maintainability of the suit. It was contended that there is no cause of action in favour of the plaintiff and the suit is liable to be dismissed. It was further mentioned that defendant no.1 has already sold her share to Sh. Irfan Hushen on 24.08.2015 and had also executed the General Power of Attorney, Agreement to Sell, Affidavit, Possession Letter, Will, Receipt etc and handed over the physical peaceful and vacant possession to Sh. Irfan Hushen at the spot. It was also mentioned that the market value of the suit property is Rs. 10,00,000/ and therefore, court does not have the jurisdiction to try and entertain the present suit. It is also mentioned that the plaintiff is claiming possession in the garb of present suit for permanent and mandatory injunction without paying proper court fees hence, suit is not maintainable and that the suit is also bad for misjoinder and Sh Subhash Chand Vs. Smt. Sushila @ Rajkukmari Page 3 of 12 Civil Suit no. 205/15 nonjoinder of parties. It was also alleged that the plaintiff has concealed true and material facts from the court.
6. On merits, it was admitted that Mr. Hukum Chand, was the rightful owner in the possession of the premises but it was mentioned that during the lifetime of Mr. Hukum Chand, he had given the first floor to defendant no.1 and ground floor to plaintiff and defendant no.2 and already partitioned the suit property. It was further mentioned that the father of the plaintiff had also executed the will dated 05.03.1990 dividing the property. It was contended that the plaintiff has no right to construct upon the property. It was again maintained that defendant no.1 has already sold her share to one Mr. Irfan Hushen. It was prayed that the suit be dismissed.
Defendant no.2.
7. Despite opportunity, defendant no.2 did not file any written statement to the present suit.
Present Application:
8. The application has been filed by the plaintiff seeking the same relief as has been sought in the main suit mentioning that the plaintiff has prima facie case in his favour.
Reply:
9. Defendant no.1 file the reply denying the contents of the application and praying that the suit be dismissed.
Sh Subhash Chand Vs. Smt. Sushila @ Rajkukmari Page 4 of 12 Civil Suit no. 205/15
10. I have heard the rival contentions raised by both the parties. Both the parties argued according to their pleadings taken. I have also meticulously gone through the entire case record.
11 The Hon'ble Supreme Court in 'Hindustan Petroleum Corpn. Ltd. Vs. Sriman Narayan and another, AIR 2002 SC 2598, has held that the object of interlocutory injunction is to protect the plaintiff against injury by violation of his right for which, he could not be adequately compensated in damages recoverable in the action if the uncertainty was resolved in his favour at the end of the trial. It is also held that balance of convenience should also be determined. While exercising the discretion the Court normally applies the following tests:
i) Whether the plaintiff has a prima facie case.
ii) Whether the balance of convenience is in favour of the plaintiff; and
iii) Whether the plaintiff would suffer an irreparable injury if his prayer for interlocutory injunction is disallowed."
In this case, the court shall proceed to apply the above tests:
(i) A. The existence of a prime facie case and infraction of such right is a condition precedent for grant of temporary injunction. The prima facie case doesn't mean a case proved to the hilt. The only requirement is that on the face of it there should be a case in favour of the plaintiff. The court at this stage cannot try to resolve a conflict of evidence or to decide questions of fact and law which call for detailed arguments and mature considerations. Sh Subhash Chand Vs. Smt. Sushila @ Rajkukmari Page 5 of 12 Civil Suit no. 205/15
B. In the present suit, the plaintiff is seeking protection of the property against third party interest. It can be observed that primarily the property appears to be a licenced property as it has been mentioned that the property was allotted to Mr. Hukum Chand. From the documents produced by the plaintiff i.e. Annexure A it again appears that the property would have been allotted rehabilitation of slums dwellers. Though the same is not clear from the averments or the documents filed. However, as the census of squatters has been filed, it appears that the property must have been allotted as a licencee property to Mr. Hukum Chand in rehabilitation. It is nowhere submitted that the property has been converted to the free hold property. Therefore, none of the legal representatives of Mr. Hukum Chand per se have the right to create any third party interest in the property for their share in form of selling or alienating the same. The rights that could have arisen from the allotment would have been right of usage only and therefore, per se none of the parties or the legal heirs of Mr. Hukum Chand could have created any third party interest in the manner that plaintiff and defendant no.1 have created. The plaintiff has entered into the agreement with the builder wherein builder shall have the interest over the two floors in the same plot and on the other hand, defendant no.1 asserts that she has sold her share to Mr. Irfan Hushen and has also handed over the possession. Primarily, the defendant no.1 could not have created any such title which did not vest in her in favour of the Mr. Irfan Hushen and similarly, it is completely unclear that without specific demarcation and Sh Subhash Chand Vs. Smt. Sushila @ Rajkukmari Page 6 of 12 Civil Suit no. 205/15 exclusive shares, how was the possession transferred. Moreover, the defendant also mentioned about the will which has not been produced on record. Per se, both the parties apparently did not have any right to create any kind of third party interest in the property which has been done by both of them. C. It is settled law that injunction is an equitable and discretionary relief. The grant of injunction is not matter of right rather the applicant has to show that there is exist prima facie case in his favour. He also needs to show that he has approached the court with clean hands and one who seeks equity should also do equity. Whereas, in this case, the plaintiff has already created third party interest in favour of builder by mentioning in the averments that builder shall hand over the possession of only three floors out of five floors that would be constructed at the premises. Hence, once the plaintiff has himself over stepped his rights, he can not seek injunction against the other legal heirs even when none of the legal heirs were capable of creating any third party interest.
(ii) In this case, though balance of convenience would have been in favour of the plaintiff as if further third party interest is created, it will cause multiplicity of litigation however, as the plaintiff has not been able to show prima facie case, the court is not inclined to delve into this aspect. Moreover, the relief is not even maintainable against defendant no.1 as defendant no.1 asserts that she has already sold the property and on the other hand, the plaintiff avers that defendant no.2 has sold his share in favour of the plaintiff. Hence interim injunction can not Sh Subhash Chand Vs. Smt. Sushila @ Rajkukmari Page 7 of 12 Civil Suit no. 205/15 be granted at this stage.
(iii) It is settled law that prima facie case, balance of convenience and irreparable loss should coexisst and once the plaintiff has failed to show the existance of prima facie case, it is not necessary for the court to delve into the aspect of irreparable loss.
12. The present court seeks guidance from the guidelines as laid down by Hon'ble Supreme Court in Dorab Cawasji Warden V. Coomi Sorab Warden (1990) 2 SCC 117.
13. Consequent to the above discussion, this court does not find the prima facie case being made out in favour of the plaintiff for grant of interim injunction. The application is accordingly dismissed.
14. The present order shall not affect any kind of proceedings in any competent court. Nothing expressed in this order shall tantamount or be construed as an expression upon the merits of the case.
(TANVI KHURANA) Civil Judge01 (South) Saket Courts/New Delhi 27.01.2016.
Note: All the eight pages of this order have been checked and signed.
(TANVI KHURANA) Civil Judge01 (South) Saket Courts/New Delhi 27.01.2016.
Sh Subhash Chand Vs. Smt. Sushila @ Rajkukmari Page 8 of 12 Civil Suit no. 205/15 IN THE COURT OF Ms. TANVI KHURANA, CIVIL JUDGE01 (South) SAKET COURTS NEW DELHI In the Matter of:
Civil Suit No.205/15
Sh. Subhash Chand S/o Late Sh. Hukum Chand R/o DIInd, 333, Madangir, New Delhi110062 ..........Plaintiff.
Versus.
1. Smt. Sushila @ Rajkumari W/o Sh. Kailash R/o. B914 Mangol Puri, New Delhi
2. Sh. Suraj S/o Late Sh. Hukum Chand R/o DIInd, 333, Madangir, New Delhi110062. ..........Defendants.
Suit for Permanent and Mandatory Injunction.
Re: Application under Order XXXIX Rule 1 & 2, CPC, 1908.
Present: None. ORDER:
By this order, this court shall proceed to decide the application filed under Order XXXIX Rule 1 & 2 CPC by the applicant/defendant no.1. The application has been filed under the provision contained in Section 151 though in nature, the application appears to be filed for seeking interim injunction hence, the court is reading the same to be filed under Order XXXIX Rule 1 & 2 CPC. Sh Subhash Chand Vs. Smt. Sushila @ Rajkukmari Page 9 of 12 Civil Suit no. 205/15 The applicant/defendant no.1 seeks to restrain the plaintiff, his legal heirs, representatives, attorneys etc. from raising further construction in the said property illegally and without due process of law till final disposal of the case and also directing the plaintiff to remove the illegal construction raised in the suit property.
2. The plaintiff did not file any reply to this application rather oral arguments were advanced.
3. Ld. counsel for applicant argued that the plaintiff is carrying on the construction on property which was allotted to the father of the parties and rampant illegal construction is being carried out. He further mentioned that the property has been constructed till 5th floor which is illegal and unauthorized.
4. On the other hand, Ld. counsel for plaintiff argued that the plaintiff has a share in the property and has also received a no objection from his brother and the other two sisters for constructing over the property. He further mentioned that he recognizes the interest of defendant no.1 and it was argued that all the legal heirs should bear who bear the cost of construction.
5. Submissions heard. I have also perused the relevant court record for disposal of the present application.
6. Through a plothera of judgments, Hon'ble Apex Court has held that primarily the court needs to see three major tests for the grant of interim injunction which is discretionary relief. The tests have been laid down as: Sh Subhash Chand Vs. Smt. Sushila @ Rajkukmari Page 10 of 12 Civil Suit no. 205/15
i) There should be prima facie case in favour of the applicant.
ii) The balance of convenience should lie in favour of applicant.
iii) The applicant should suffer irreparable loss if the injunction is not granted.
7. In this case, the court shall proceed to apply the above tests:
(i) A The existence of a prime facie case and infraction of such right is a condition precedent for grant of temporary injunction. The prima facie case doesn't mean a case proved to the hilt. The only requirement is that on the face of it there should be a case in favour of the plaintiff. The court at this stage cannot try to resolve a conflict of evidence or to decide questions of fact and law which call for detailed arguments and mature considerations.
B. In the present suit, the applicant has not shown her right in the property but presumably she claimed right being a legal representative of the original allottee. It is mentioned in the application that applicant is raising illegal and unauthorized construction in the suit property without permissions or sanction plan from MCD however, cause of action in the present matter is not illegal/unauthorized or forcible construction. The suit has been filed for restraining from creating third party interest. The relief sought not be covered under the present suit. In case, the defendant no.1/applicant has any cause of action she could have preferred the right remedy after impleadment the municipal authorities in a separate suit. The application does not have any nexus with the cause of action in the present case and hence, jurisdiction of this court can not be Sh Subhash Chand Vs. Smt. Sushila @ Rajkukmari Page 11 of 12 Civil Suit no. 205/15 invoked beyond the cause of action and the relief claimed. The applicant has not been able to show any prima facie case in her favour for filing the application. (ii & iii) The question of balance of convenience and irreparable loss could have arisen only in case, when the applicant could have shown a prima facie case in her favour. All the three tests should coexist and once the prima facie case in the favour of the applicant for grant of interim injunction is not shown, the court shall not proceed to scrutinize the tests of balance of convenience and irreparable loss.
8. The present court seeks guidance from the guidelines as laid down by Hon'ble Supreme Court in Dorab Cawasji Warden V. Coomi Sorab Warden (1990) 2 SCC 117.
9. Consequently, the application is dismissed.
10. The present order shall not affect any kind of proceedings in any competent court. Nothing expressed in this order shall tantamount or be construed as an expression upon the merits of the case.
(TANVI KHURANA) Civil Judge01 (South) Saket Courts/New Delhi 27.01.2016.
Note: All the four pages of this order have been checked and signed.
(TANVI KHURANA) Civil Judge01 (South) Saket Courts/New Delhi 27.01.2016.
Sh Subhash Chand Vs. Smt. Sushila @ Rajkukmari Page 12 of 12