Delhi District Court
Veena Azad vs Suresh Parcha on 8 July, 2013
IN THE COURT OF MS. SHAMA GUPTA: CIVIL JUDGE : 16
CENTRAL
TIS HAZARI COURTS : DELHI
Suit No. 122/13
Veena Azad
.......... Plaintiff
VERSUS
Suresh Parcha
.........Defendant
O R D E R
1. Vide this order, I shall dispose off the application filed by the plaintiff u/o XXXIX Rule 1 and 2 CPC seeking adinterim injunction thereby restraining the defendant, his agents, servants, employees, associates etc. from selling out any portion of property bearing no. 10779, Gali No. 7, WEA 100 quarter, Karol Bagh, Delhi (herein after wards referred as suit property) and further restraining the defendant, its agents from dispossessing the plaintiff from first floor of the suit property and creating any hindrance and obstruction in peaceful enjoyment and in renovation work on the Ist floor of the suit property till the disposal of the suit.
2. Briefly stated the facts necessary for the disposal of the present application as averred by the plaintiff in the plaint are that, the plaintiff is the owner of suit property after purchasing the same from its previous owner namely Sh. Chandu in the year 1983.
Suit no. 122/13 Veena Azad Vs. Suresh Parcha 1/6
3. It is further pleaded that prior to 1983, she has been residing in the suit property as licensee under previous owner but in the year 1983 she had purchased the same and thus after 1983 she had been residing therein as owner thereof.
4. It is further stated that the defendant had been allowed by the plaintiff to reside on the ground floor of suit property in the year 1988 as a licensee, as the defendant assured the plaintiff that he will vacate the suit property as and when plaintiff direct him to do so, but the defendant had not vacated the same and now the defendant has started creating hindrance in the peaceful possession of plaintiff on Ist floor of the suit property and also threatened number of times to forcibly dispossess her from the Ist floor of the suit property.
5. It is further averred that the Ist floor of the suit property requires repairs and renovation but the defendant had created hindrance in the same. It is averred that they have made complaint to the police complaining the wrongful acts of the defendant.
6. The plaintiff had further averred that the defendant had threatened the laborers engaged by the plaintiff for doing repair work, thus the plaintiff had send legal notice directing the defendant to vacate the ground floor of the suit property, but the defendant failed to vacate the same. And now on 12.04.2013, the plaintiff came to know that defendants are trying to sell the suit property without consent and permission of the plaintiff and when the plaintiff had tried to stop them they have threatened to dispossess the plaintiff forcibly from the Ist floor of the suit property.
Suit no. 122/13 Veena Azad Vs. Suresh Parcha 2/6
7. The defendant had failed to file the reply but the defendant had addressed the arguments and during course of arguments the defendant had relied on four documents which were filed along with list, whereby the defendant had averred to be the owner of suit property and these documents includes registered general power of attorney in his favour in respect of 1/3rd of property bearing no. 10779, Gali no.7, ad measuring 100 sq. Yards, Balmiki Colony, Karol Bagh, Delhi, but the date of its execution is not legible, further the defendant had placed reliance on will and receipt, however the will and receipt are in favour of the wife of the defendant and same is dated 23.09.1988 whereby wife of the defendant was bequethed right over 1/3rd of property bearing no. 10779, Gali no.7, ad measuring 100 sq. Yards, Balmiki colony, Karol Bagh, Delhi by the alleged erstwhile owner.
8. It is further submitted by Ld. Counsel for the defendant that the plaintiff is residing on the Ist floor of the suit property in the capacity of the tenant and for the same the defendant had placed reliance on survey report of DDA dated 10.02.1990 in which plaintiff's husband was shown as a tenant, thus it is averred that the plaintiff has no ownership right in respect of the suit property and she is in possession of first floor of the suit property in the capacity of tenant, it is further submitted that in the garb of present suit, the plaintiff is in fact seeking declaration of ownership right in respect of the suit property.
9. It is submitted by Ld. Counsel for the plaintiff that as the plaintiff is in possession of Ist floor of the suit property since 1983 and possession of plaintiff is admitted by the defendant also, therefore her possession in property be protected till the disposal of the suit.
Suit no. 122/13 Veena Azad Vs. Suresh Parcha 3/6
10. Arguments heard, and on perusal of the records of the case in the light of rival submissions of both the parties and relevant provision of law, this court is of considered opinion that, though the plaintiff had averred to be owner of the suit property and in possession of Ist floor of suit property, but the document relied by plaintiff i.e agreement does not prima facie establish ownership right over suit property, but even the documents of defendant is not sufficient to establish ownership right in favour of defendant as the defendant had only registered G.P.A in his favour and that too with respect to 1/3rd part of the suit property and rest documents are in favour of wife of the defendant.
11. Be that as it may, by present application, the plaintiff is claiming interim injunction against forcible dispossession, and for the purpose of same, it has to be seen whether the plaintiff is in possession of the portion in respect of which injunction is claimed and ration card filed on record by the plaintiff prima facie shows that the plaintiff is in possession of Ist floor of suit property since 1983 and the defendant had also admitted that the plaintiff is in possession of same. But in what capacity plaintiff is occupying the same and whether or not the plaintiff had disclosed correct facts is a matter of trial. Further, there are averments in the plaint as to forcible dispossession from Ist floor of suit property which is substantiated by the photocopy of complaint, thus plaintiff is prima facie able to show case in his favour which requires trial, thus possession of plaintiff is required to be protected pending adjudication, as no body has a right to take law in his hands. Thus the defendant, his agents etc are restrained from forcibly dispossessing the plaintiff from the Ist floor of suit property.
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12. The plaintiff had further claimed that defendant be restrained from creating third party interest in suit property on the ground that defendant is merely a licensee with respect to ground floor, and plaintiff is the licensor, and whether or not said averment of plaintiff is correct can be ascertained only through trial, as the defendant is also not able to prima facie rebut the same by his documents, thus plaintiff by prima facie showing her possession on the first floor since 1983 and further showing threat of alienation is prima facie able to show case in her favour which requires trial and if there is alienation of any portion of suit property by the defendant, as the defendant averred to be owner, it will lead to multiplicity of litigation. Thus, to preserve the suit property, the injunction as claimed is necessary. Thus the defendant, his agents etc are restrained from transferring, alienating the suit property or any portion thereof till the disposal of the suit.
13. Further, the plaintiff had claimed injunction thereby restraining the defendant from interfering in the renovation of Ist floor of suit property, but the plaintiff had not averred as what is the extent of renovation required and how balance of convenience lies in her favour and how she will suffer irreperable loss and injury if same is not granted. Further without showing any exceptional circumstances, the plaintiff cannot claim this relief at the interim stage, as if the injunction as prayed for is granted, it will amount to decree in respect to the relief as claimed, thus same cannot be granted.
14. With aforesaid discussion, the application of plaintiff under order XXXIX rule 1 and 2 CPC is partly allowed and defendant, his agents Suit no. 122/13 Veena Azad Vs. Suresh Parcha 5/6 assignees, servants etc. are restrained from forcibly dispossessing the plaintiff from Ist floor of the suit property and are further restrained from transferring, alienating the suit property or any portion thereof till the disposal of the suit.
Nothing stated herein above shall tantamount to expression of this court on the merits of the case.
(SHAMA GUPTA)
CIVIL JUDGEC16/THC
DELHI /08.07.2013
Suit no. 122/13 Veena Azad Vs. Suresh Parcha 6/6
CS No./11
.2013
Present: None.
Vide separate order of even date,
(SHAMA GUPTA)
CIVIL JUDGEC16/THC
DELHI /.2013
Suit no. 122/13 Veena Azad Vs. Suresh Parcha 7/6