Delhi District Court
Mohd. Zahid vs Mohd. Tahir And Anr on 3 May, 2011
1
IN THE COURT OF SH RAVINDRA KUMAR PANDEY,
CIVIL JUDGE, DISTRICT CENTRAL04: DELHI
Suit No.03/11
IN THE MATTER OF
MOHD. ZAHID .....PLAINTIFF.
VERSUS
MOHD. TAHIR AND ANR ....DEFENDANTS.
ORDER
1. By this order I shall dispose an application filed on bekhalf of plaintiff U/o 39 Rule 1 & 2.
2. Brief fact of fact relevant for disposal of present application is that plaintiff is resident of house no. 1133, Rakab Ganj, behind Delite Cinema, New Delhi02 and defendant no. 1 and defendant no. 2 are real brothers and father of plaintiff respectively. The father of the plaintiff and his other brothers are in occupation of house no. 1133, Rakab Ganj, behind Delite Cinema, New Delhi02 consisting of rooms, verandah and open courtyard. Out of their respective portion, the brothers of defendant no. 2 sold one room measuring 10' x 10' with 3 ft chajja, latrine, kitchen Suit No. 03/11 Page 1 of 6 2 etc to plaintiff. The father of plaintiff i.e. defendant no. 2 allowed the plaintiff to live in room measuring 13' x 14' alongwith other facilities, on the second floor of suit premises and plaintiff is enjoying the same. On 04.01.2011 the defendant no. 1 came to plaintiff and demanded that plaintiff should vacate the room purchased by him from his uncle namely Mohd. Shrif and threaten to take possession of on second floor, which was given by defendant no. 2 to plaintiff for purpose of residence. The plaintiff is still under threat that defendant no.1 may dispossess him from room purchased by him from his uncle and from second floor which was given by defendant no 2, hence the present was filed along with application U/o 39 Rule 1 & 2 CPC.
3. Defendants duly filed their written statement and reply to the application U/o 39 Rule 1 & 2 CPC. As per the defendants, the plaintiff has suppressed the material fact from the court and in fact the entire property i.e. two rooms, bathroom, toilet, kitchen and open space on the ground floor, one room and store on the fist floor, and one room, toilet, bathroom and kitchen on second floor of property no. 1133, Rakab Ganj behind Delite Cinema, New Delhi02 is exclusively owned by the defendant no. 2 and is in exclusive possession of defendants and plaintiff Suit No. 03/11 Page 2 of 6 3 is residing separately. Defendants denied that the father of the plaintiff i.e. defendant no. 2 allowed the plaintiff to live in room measuring 13' x14' on second floor of house. Defendants summarily denied rest of averment of plaintiff.
4. At the instance of plaintiff local commissioner was appointed vide order dated 07.02.2011, with direction to file report in regard to factul position of possession on First floor and Second floor of suit property. Local commissioner duly filed his report. Arguments heard on behalf of plaintiff and defendants on application U/o 39 Rule 1 & 2 CPC.
5. It is submitted on behalf of plaintiff that plaintiff is at present in possession of suit property. It is further submitted on behalf of plaintiff that ration card was issued in name of plaintiff, which bears the address of second floor of suit property. It is further submitted on behalf of plaintiff finding of local commissioner also support his possession in suit property, so his application U/o 39 Rule 1 & 2 CPC may be allowed.
6. It is submitted on behalf of defendants that the plaintiff has admitted that he is residing separately and defendant no. 2 who present in the court Suit No. 03/11 Page 3 of 6 4 has stated that he has not given possession of suit property to the plaintiff. It is further submitted on behalf of defendants that ration card is false and frivolous, so application U/o 39 Rule 1 & 2 CPC as well as suit is liable to be dismissed.
7. I have heard Ld. counsel for plaintiff and Ld. Counsel for defendants and also pursued material available on record as well as the report of local commissioner. U/o 39 Rule 1 & 2 CPC provides that:
(a) That any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or
(b) That the defendant threatens, or intends, to remove or dispose of his property with a view to [defrauding] his creditors,
(c) That the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit.
The court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property [or dispossession of the plaintiff, or otherwise causing injury to the plaintiff Suit No. 03/11 Page 4 of 6 5 in relation to any property in dispute in the suit] as the court thinks fit, until the disposal of the suit or until further orders.
8. For adjudication of application U/o 39 Rule 1 & 2 CPC, coexistence of three conditions is necessary as laid down in Gujratj Bottling Company v/s Coca Cola Company AIR 1955 SC 2372:
(i)Whether the plaintiff has prima facie case,
(ii) whether the balance of convenience is in favour of the plaintiff, or
(iii) whether the plaintiff would suffer an irreparable injury if his prayer for interlocutory injunction is disallowed.
In granting interlocutory injunction, the governing principle is the maintenance of status quo, but regard should be had to the balance of convenience and the extent to which the advantage to the plaintiff could be cured by payment of damages, rather than by the grant of interlocutory injunction. Irreparable injury does not mean that there must be no physical possibility of repairing the injury, but that the injury must be a material one, and one that cannot be adequately compensated for in damages. The court must compare the amount of mischief done or threatened to the plaintiff, and must weigh the same against the inflicted by the injunction upon the defendant; and see that the comparative mischief or the inconvenience Suit No. 03/11 Page 5 of 6 6 which is likely to arise from withholding the injunction will be greater than that which is likely to arise from granting it.
9. As per the report of local commissioner the plaintiff is in possession of suit property. The defendant has not disputed about the report of local commissioner proceeding of which was recorded in presence of both parties. I am of view that irreparable loss will be caused to plaintiff if present application for adinterim is not allowed. The application of plaintiff U/o 39 Rule 1 & 2 CPC is hereby allowed and defendants, their associates, assigns etc are hereby restrained from dispossessing, the plaintiff from the room situated in property no. 1133, Rakab Ganj, first floor and second behind Delite Cinema, New Delhi as show in red colours in site plan W/o due process of law till the disposal of suit.
However, observation in this order shall not cast any shadow on the merit of the case.
Announced in the open Court
on 03.05.2011
(Total pages 1 to ) (Ravindra Kumar Pandey)
CJ/Central04/ 03.05.2011.
Suit No. 03/11 Page 6 of 6
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Suit no. 03/11
03.05.2011
Present: Counsel for the parties.
Vide separate order dictated and announced in open court, the application of the plaintiff U/o 39 Rule 1 &2 CPC allowed and disposed off accordingly.
Put the matter for further proceeding on 13.07.2011 (Ravindra Kumar Pandey) CJ/Central04/ 03.05.2011.
Suit No. 03/11 Page 7 of 6