Delhi District Court
C.L. Sharma vs G.S. Sharma on 16 November, 2011
IN THE COURT OF SH. SUNIL RANA
ADDL. DISTRICT & SESSIONS JUDGE : 03 (WEST)
TIS HAZARI COURT, DELHI
CS No. 402/11
Unique ID No. 02401C0153292010
C.L. SHARMA ..........Plaintiff.
Vs.
G.S. SHARMA .........Defendant.
Date of filing application : 03.07.2010
Date of reserving order : 16.11.2011
Date of Order : 16.11.2011
O R D E R
(1) Vide this order I shall decide an interim application under Order 39 Rule 1 and 2 CPC moved on behalf of the plaintiff.
(2) Brief facts of the case are that the plaintiff has filed the present suit for the possession, mandatory and permanent injunction and the same is pending before this court.
(3) It has been stated that plaintiff is the owner of the half portion of the plot no. 10A and 11 measuring 75 sq. yards out of 150 sq. yards, out of khasra no. 12/16 situated in area of village Hastsal in the abadi of Deep Enclave, Part II, now known as Vikas Nagar, Uttam Nagar, New Delhi 59 which was purchased by the plaintiff on 14.11.94 from Smt. Vinodini Jerath and Dr. R.K. Jerath vide GPA, agreement to sell and receipt, all dated 14.11.94 and the Suit no. 402/10 1/ 8 remaining half portion of the suit property was purchased by the defendant. (4) It has been further stated that plaintiff remained out of India most of the time and visited India only occasionally and in the year 2006 when the plaintiff was out of India, the defendant had requested the wife of the plaintiff for handing over the original documents of the suit property for showing the same to the police for verification and the original documents of the suit properties were handed over to the defendant, who has assured to hand over the same but had failed to do so and plaintiff was surprised to see on 8.1.2010 that defendant had carried out the construction on entire 150 sq. yards of the plot no. 10 A and 11. It has been further stated that plaintiff asked the defendant to give the possession of the suit property and defendant had sought time till 15.3.2010 for giving possession of the suit property to the defendant. (5) It has been further stated that again on 21.3.10 the plaintiff had visited the defendant and requested to hand over the possession as well as original documents of the suit property and defendant had threatened to sell out the suit property and to deliver the possession to the intended purchasers and is in illegal possession and has no right to remain in the suit property. It has been stated that plaintiff has prima facie case in his favour and the balance of convenience also lies in favour of the applicant/plaintiff and against the defendant and in case the defendant succeeds in selling, transferring or creating any third party interest or part with the suit property during the pendency of suit the plaintiff will suffer irreparable loss and injury which cannot be compensated in any manner. It has been prayed that the defendant, assignee Suit no. 402/10 2/ 8 and its agents be restrained from selling, transferring or creating any third party interest or part with the possession suit property , till the disposal of the suit.
(6) On the other hand, defendant has contested the present suit and has filed written statement and reply to the present application by raising preliminary objection that the suit of the plaintiff is wholly false and is based on forged and fabricated documents and the plaintiff has no locus standi to file the present suit as plaintiff is neither owner nor in possession of the suit property and no cause of action has arisen in favour of the plaintiff and against the defendant to file the present suit. It has been urged that the plaintiff has concealed the material facts from the court as the plaintiff had executed an agreement to sell dated 10.7.1997 in favour of the defendant after receiving the consideration amount of the suit property and vacant possession of the suit property and original documents were also handed over to the defendant on the same date and subsequently defendant has constructed the house on the said plot and has been living in the suit property since 1997 with his family and the plaintiff and his family has never objected to the same in the past and now the present suit has been filed with malafide intention in order to harass the defendants.
(7) It has been submitted that the defendant has purchased the 75 sq. yards of the suit property in the year 1994 and also in the possession of another half portion of 75 sq. yards of suit property and by virtue of agreement to sell dt. 10.7.1997. It has been urged that the plaintiff is not entitled for the Suit no. 402/10 3/ 8 interim relief as plaintiff has no prima facie case in his favour and no balance of convenience lies in favour of the plaintiff as he is neither owner, nor in possession and on the other hand, defendant is the owner and residing with his family in the suit property after raising construction on the entire suit land of 150 sq. yards and is not transferring or creating any third party interest in the suit property and thus the suit as well as present application lack merit and plaintiff is not entitled for any relief and suit as well as present application is liable to be dismissed with cost.
(8) I have heard the counsel for parties and their rival contention and also perused the record.
(9) It is a well settled principle of law that at the time of the disposal of application U/o 39 Rule 1 & 2 CPC, the court is required to see as to :
(i) Whether there is a prima facie case in favour of the applicant or not.
(ii) In whose favor the balance of convenience is lying.
(iii) Who is going to suffer irreparable loss, in case the injunction is not granted.
(10) Interim orders are granted on the basis of the case made out prima facie in the pleadings and that in the interest of justice such interim order is necessary in order to prevent abuse of process of law. It is also to take into consideration the balance of convenience and inconvenience and other important matters. Court while considering the balance of convenience must necessarily put the question " will the plaintiff suffer irreparable damages, if no Suit no. 402/10 4/ 8 injunction is granted now ?" The court must be satisfied that (i) applicant has prima facie case to go to trial; (ii) that protection is necessary from that species of injury known as ' irreparable ' before his legal right can be established; (iii) that the mischief or inconvenience likely to arise from withholding injunction will be greater than which is likely to arise from granting it. (11) A prima facie case should be made out and mere institution of a suit does not entitled the plaintiff to relief. Plaintiff must satisfy the court that there is a fair and substantial question is to be tried.
(12) In the instant case, the plaintiff has stated that he is the owner of half portion of plot no. 10A and 11 measuring 75 sq. yards out of 150 sq. yards out of khasra no. 12/16 situated in the area of village Hastsal in the abadi of Deep Encl. PartII now known as Vikas Nagar, Uttam Nagar, New Delhi and defendant is the owner of the remaining half portion , which was purchased from Smt. Vinodini Jerath and R. K. Jerath vide GPA, agreement to sell and receipt dated 14.11.1994 and the construction has been carried out by the defendant on the entire plot of 150 sq. yards i.e. 10 a and 11 and had refused to hand over the possession of the suit property to the plaintiff and the present suit was filed.
(13) On the other hand, defendant has submitted that he has purchased the half portion of 75 sq. yards and possession of another half portion along with documents after taking the consideration amount was handed over to him by virtue of agreement to sell dated 10.7.1997 and he is owner and in possession of the entire suit property and had raised the Suit no. 402/10 5/ 8 construction on the entire plot and had been residing with his family since 1997.
(14) Considering the facts and circumstances of the instant case, I am of the view that the facts of the case raises a disputed question of facts which requires evidence and raises a prima facie doubt on the fact as to whether the defendant has raised the construction on the entire plot of the suit property by virtue of the agreement to sell dt. 10.7.97 executed by the plaintiff in favour of the defendant and at the interlocutory stage, the court has to form an opinion and a disputed questions which has been asserted by the plaintiff and denied by the defendant and the veracity of which is in question requires a trial. It is an admitted fact that the defendant is in the possession of entire suit property as well as the original documents and has raised construction on the suit property. (15) It is well settled principle of law that any factor which may affect balance of convenience is to be considered. If the balance is even, the relative strength of the case is to be considered. It is also a well settled principle of law that where both sides are exposed to irreparable injury, ending trial, the courts have to strike a just balance as held in Mahadeo Savlaram Shelke Vs. Pune Municipaul Corporation (1995) 3 SCC 33, it is urged that the court considering an application for an interlocutory injunction has four factors to consider: first, whether the plaintiff would suffer irreparable harm if the injunction is denied; secondly, whether this harm outweighs any irreparable harm that the defendant would suffer from an injunction; thirdly, the parties relative prospects of success on the merits; fourthly, any public interest involved Suit no. 402/10 6/ 8 in the decision. The central objective of interlocutory injunctions should therefore be seen as reducing the risk that rights will be irreparably harmed during the inevitable delay of litigation.
(16) I am of the view that prima facie is not to be confused with prima facie title. In the instant case, substantial question raised by the parties which at first sight needs investigation and can be established only after leading the evidence when the case comes to the trial. The balance of convenience also does not lie in favor of the plaintiff as the defendant is in possession of the suit property and has raised the construction and is residing in the suit property since 1997.
(17) Considering the facts and circumstances of the case, the defendant has raised substantial, tenable and credible challenge to the relief which raises a triable dispute , therefore the plaintiff has failed to make out a prima facie case for the grant of interim injunction. I am also of the view that it would be more inconvenient at this juncture to restrain the defendant as the balance of convenience tilts in favour of the defendant as he will be more inconvenienced, in case, the defendant is not allowed to proceed further in view of his legitimate right over the suit property. The irreparable loss will ensue to the defendant in case any embargo is put on his legitimate right or injunction is granted against him.
(18) In view of the discussion made above and relying upon the judgment titled as Mahadeo Savlaram Shelke Vs. Pune Municipal Corporation (1995) 3 SCC 33, I am of the opinion that the plaintiff has failed Suit no. 402/10 7/ 8 to make out a prima facie case in his favour and has not been able to satisfy any of the ingredients of Order 39 Rule 1 and 2 CPC in the present case and is not entitled to the interim relief. Hence, the interim application under order 39 Rule 1 & 2 CPC is hereby dismissed, accordingly.
(19) Nothing stated herein above shall tantamount to the expression of any opinion on the merit of the case and any observation made herein shall be treated as tentative in nature and shall not constitute any expression of final opinion on the issues involved in the matter and shall have no bearing on the final outcome of the case.
Announced in the open court ( Sunil Rana )
today ie. 16th November, 2011 ADJ - 03 (West)/Delhi
Suit no. 402/10 8/ 8