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[Cites 6, Cited by 0]

Delhi District Court

Shri Mahinder Pratap Bhalla vs Shri Narinder Pratap Bhalla on 13 August, 2013

                              1

  IN THE COURT OF Ms. VEENA RANI ADDITIONAL 
SENIOR CIVIL JUDGE, SOUTH­EAST, SAKET COURTS, 
                        NEW DELHI


MCA NO:03/2013
Shri Mahinder Pratap Bhalla 
S/o Late Shri Harcharan Das Bhalla, 
R/o S­61, Second Floor, Greater Kailash­1,
New Delhi­110048                           ..... Appellant
                  Versus
  1. Shri Narinder Pratap Bhalla 
     S/o Late Shri Harcharan Das Bhalla, 
     R/o S­61, First Floor, Greater Kailash­1,
     New Delhi­110048.
  2. Shri Bharat Bhushan Bhalla 
     S/o Late Shri Harcharan Das Bhalla, 
     R/o S­61, Ground Floor, Greater Kailash­1,
     New Delhi­110048.
  3. Sh. Sajan Narain, Advocate,
     98, Babar Road, 
     New Delhi­110001                      ..... Respondents



 Sh. Mahinder Pratap Bhalla  Vs.  Sh. Narinder Pratap Bhalla 
                                  2

ORDER

1. This is an appeal against the impugned order dated 20­05­2013 passed by the Ld. Civil Judge, South­ East, Saket, New Delhi by which application U/o 151 CPC moved by the respondent was allowed and the plaintiff, his wife, daughter and agents, associates etc were restrained from doing any construction, repair, or maintenance at the suit property.

2. The appellant/plaintiff stated in his appeal that respondent No:1 and 2 are the brothers of the appellant/plaintiff and residing in the same building on the ground floor, first floor respectively and appellant/plaintiff is residing on the second floor of the suit property. The respondent no:3 is a practicing advocate and also the son­in­law of respondent no:1. That the appellant/plaintiff and the respondents are the co­sharer/co­owners of the suit property and are having the undivided share each in terms of the family settlement and owns 15% of shares in the property bearing No:S­61, Greater Kailash­I, New Delhi.

3. The appellant/plaintiff further stated that respondent no:1 to 3 have been obstructing and not Sh. Mahinder Pratap Bhalla Vs. Sh. Narinder Pratap Bhalla 3 permitting the appellant/plaintiff, their family members, their guests, visitors, to have free access to the premises. It is submitted that vide order dated 06­08­2011, the Hon'ble Court was pleased to restrain the respondents, their agents, etc. from interfering in the free ingress and egress of the appellant/plaintiff, his family members, visitors, guests and assigns in the property in question for accessing the second floor till the disposal of the suit and the said interim order is still in operation and has not been set aside and/or modified till date but despite the above said interim order dated 6­8­2011 the respondents did not allow the labours and masons of the appellant/plaintiff on 19­05­2013 when they had come to repair the seepage work in the premises of the appellant and locked the entry of the main door on the ground floor to disallow the entry to anybody.

4. It is submitted by appellant/plaintiff that vide impugned order dated 20­05­2013, Ld. Trial court has allowed the application of the defendants U/o 151 of CPC and restrained the plaintiff, his wife, daughter and agents, associates etc. from doing any construction, Sh. Mahinder Pratap Bhalla Vs. Sh. Narinder Pratap Bhalla 4 repair, or maintenance at the suit property.

5. Aggrieved by the aforesaid order, the appellant has filed present appeal contending that Ld. Trial Court vide order dated 20­5­2013, without issuing any notice or prior knowledge, granted ex­parte, ad­interim injunction against the appellant and his family members from doing any construction, repair, maintenance at the suit property. It is averred by appellant that order of the ld. Trial Court is patently illegal, unconstitutional, against the principles of law and is liable to be quashed as the defendants themselves flouted the orders passed by the Ld. Trial court and obstructed the way and entry of the workers and mesons of the plaintiff/appellant. Appellant further averred that the ld. Trial Court grossly erred in holding that the court did not permit the appellant to do any construction at the suit property and the same was beyond the scope of the suit and the interim order dated 6­8­2011 and the said observation s of the Ld. Trial Court is without any basis or legality and same is liable to be set aside. It is further stated that the Ld. Trial Court further grossly erred in holding that the Sh. Mahinder Pratap Bhalla Vs. Sh. Narinder Pratap Bhalla 5 appellant by carrying out the repair works had taken law in their own hands, thus the impugned order dated 20­05­2013 is liable to be set aside and quashed.

6. Respondents filed reply to the appeal of the appellant and denied the averments and allegations of the appellant. It is denied by the respondents that they have humiliated the appellant or blocked his entry or the entry of his family members, workers, mesons and their visitors etc to the suit property. It is stated that the allegations leveled by the appellant are false and baseless. It is denied that respondents obstructed the way of the labourers of the plaintiff and not allowed them to carry out the repair work in the premises. It is stated by the respondents that on 10­7­2013 the appellant intentionally obstructed and interfered with the ingress of respondent No:3 and Ms. Namita Nanda, Attorney for respondents, by shutting the self locking wooden main entrance door in the suit property thereby preventing respondent No:3 and Ms. Namita Nanda from entering the ground floor of the suit property with appellant. It is denied by respondents that suit property was purchased by appellant's father Sh. Mahinder Pratap Bhalla Vs. Sh. Narinder Pratap Bhalla 6 late Sh. Harcharan Das Bhalla and was his self acquired property or that he carried out the construction of the suit plot from his own funds. It is also denied by respondents that appellant is also the co­sharer/co­ owners of the suit property and are having the undivided share each in terms of the said family settlement and owns 15% shares in the property bearing No:S61, Greater Kailash­I, New Delhi. It is stated that respondent No:1 is the sole owner of the entire suit property including the portion above the first floor and he and his wife are the only persons having lawful settled possession over the suit property including the portion above the firs floor and respondent No:2 was the beneficiary of Composition Deed executed by plaintiff. Respondents denied that impugned order dated 20­5­2013 is bad in law and against the settled principles of law or same is liable to be set aside.

7. Appellant/plaintiff filed rejoinder to the reply of the defendants and reiterated the averments made in the appeal and denied the allegations leveled by the respondents.

Sh. Mahinder Pratap Bhalla Vs. Sh. Narinder Pratap Bhalla 7

8. I have heave and considered the submissions of the Ld. counsel for the parties and perused the record as well as perused the trial court record.

9. The germane facts are that the appellant­plaintiff had filed a suit for injunction against the defendants thereby seeking that the defendants and their agents etc. be restrained from interfering in the ingress / egress of the plaintiff into the suit premises i.e. property bearing No.S­61. Greater Kailash - I, New Delhi. An application under Order XXXIX Rules 1 & 2 CPC was filed by the appellant­plaintiff in order have a temporary injunction and the said application was allowed by the Ld. Trial Court vide its order dated 06.08.2011. Thus the respondent­defendants were restrained (till the disposal of the suit) from interfering in the free ingress & egress of the plaintiff (and his family members, visitors etc.). The operative part of the said order is :

"Vide separate order of even date, the plaintiff's application under Order XXXIX Rules 1 and 2 of Code of Civil Procedure stands disposed off. The defendants, their agents, representatives and Sh. Mahinder Pratap Bhalla Vs. Sh. Narinder Pratap Bhalla 8 assigns are restrained from interfering in the free ingress and egress of the plaintiff, his family members, visitors, guests and assigns in the property bearing No. S­61, Greater Kailash­I, New Delhi for accessing the second floor thereof till the disposal of the present suit."

(MANIKA) Civil Judge­05 (South) 06.08.2011

10. During the course of the proceedings the respondent­defendants filed a handwritten urgent application under S.151 CPC thereby seeking that the plaintiff, his wife and his daughter be directed not to carry out any construction, maintenance or repair work in the suit property. The said application was treated as application under Order 39 Rules 1 & 2 r/w S.151 CPC and was taken on record by the Ld. Trial Court. The order sheet said:

"Suit No. 376 / 2013
20.05.2013 Sh. Mahinder Pratap Bhalla Vs. Sh. Narinder Pratap Bhalla 9 File taken on an application moved by the defendants.
Present: None for the plaintiff.
Sh. Sajan Narain, defendant no.3 in person and as an Advocate / counsel for defendant no.1 and 2 along Ms. Namita Nandan attorney for the defendants.

The defendants have moved the present application U/s 151 CPC along with U/o 39 Rule 1 and 2 CPC.

Heard.

Application perused.

It is stated in the application that the present suit has been fixed for order on Section 10 CPC. However, on 19.05.2010 and today the plaintiff, his wife and daughter have taken the law in their own hands and they have brought some material at the suit property and some labourers to carry out construction, maintenance or repair work at the suit property Sh. Mahinder Pratap Bhalla Vs. Sh. Narinder Pratap Bhalla 10 against the wishes and instructions of the defendants. Hence, the present application has been moved to restrain the plaintiff from carrying out any construction, maintenance or repair work in the suit property till the decision of the suit.

File perused.

The present suit has been filed by the plaintiff for permanent and mandatory injunction. Vide order dated 06.08.2011 the application of the plaintiff U/o 39 Rule 1 and 2 CPC was disposed off thereby restraining the defendants from interfering in the free ingress and egress of the plaintiffs, family member, visitors etc. in the suit property for accessing the second floor till the decision of the suit.

It is well settled law that a party who seeks equity must do equity. Even though the Court has passed an injunction in favour of the plaintiff allowing him free access to second floor, however, the Court did not permit the plaintiff to do any construction at the suit Sh. Mahinder Pratap Bhalla Vs. Sh. Narinder Pratap Bhalla 11 property. The averments made in the application are serious in nature. If the plaintiff is allowed to take the law in his hand then it would not be proper in the interest of justice. Hence, the plaintiff, his wife, daughter and agents, associates etc. are hereby restrained from doing any construction, repair, or maintenance at the suit property till next date of hearing.

Issue notice of the present application to the defendant on filing of PF within two days, returnable for 24.05.2013.

Process be given dasti if so requested.

Copy of order be given dasti if so requested.

(DINESH KUMAR) CJ/SE/Saket/ND/20.05.2013

11. The appellant­plaintiff was thus restrained by the Ld. Trial Court in the terms of the above­quoted order dated 20.05.2013.

Sh. Mahinder Pratap Bhalla Vs. Sh. Narinder Pratap Bhalla 12

12. Before proceeding further to decide the matter, I would like to remind myself on the powers of appellate court while deciding an appeal against the order of granting temporary injunction by trial court, in view of the ratio laid down by Hon'ble Supreme Court of India in the case of Wander Ltd. & Anr. Vs. Antox India P. Ltd. MANU/ SC/0595/1990/1990 (Supp) SCC 727. It was held­therein that the Appellate Court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate Court will not 're­assess' the material and seek to reach a conclusion different from the one reached by the court below if the one reached by the court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it Sh. Mahinder Pratap Bhalla Vs. Sh. Narinder Pratap Bhalla 13 had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the Trial Court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion. Keeping the above law in mind and the fact that, in the matter in hand, I am exercising the power of appellate court which are very limited in nature.

13. Order 43 Rule 1 says that: An appeal shall lie from the following orders under the provisions of Section 104 namely; (r) An order under Rule 1, Rule 2, Rule 2A, Rule 4 or Rule 10 of Order 39.

14. Order 39 Rule 1 says thus: Where in any suit it is proved by affidavit or otherwise­­

(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, Sh. Mahinder Pratap Bhalla Vs. Sh. Narinder Pratap Bhalla 14

(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 disposition of the plaintiff, or otherwise causing injury to the plaintiff 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.

15. The provisions of Order 39 Rue (1)(b) & (c) would only apply where the plaintiff moves the application. In the present case Order 39 Rue (1)(a) applies and it was compulsory on part of the defendants to fulfill the conditions contained therein. The defendants had moved the hand­written application under S.151 CPC dated 20.05.3013 and the same was treated as an application under Order 39 Rules & 2 CPC by the Ld. Trial Court. The contents of the said application would reveal that by way of the said Sh. Mahinder Pratap Bhalla Vs. Sh. Narinder Pratap Bhalla 15 application under S.151 CPC the defendants actually informed the Ld. Trial Court that the matter was fixed for orders on the application under S.10 CPC and that the plaintiff (appellant­herein) was carrying on some construction work without prior permission of the court. It was further averred in the said application (by the defendants) that the plaintiff and his family members were carrying out construction work in contravention of the notices dated 10.11.2009 and 17.11.2009 which were sent by the defendants to the plaintiff. It was in the said circumstances that the defendants (respondents­herein) had sought the prayer of temporary injunction against the plaintiff (appellant­ herein).

16. It is necessary to emphasize that the application under S.151 CPC was premised on the fate of the application under S.10 CPC. The real apprehension of the defendants before the Ld. Trial Court was that the plaintiff was expecting an adverse outcome of the said application which was fixed for orders on 24.05.2013. The actual prayer of the defendant was to restrain the plaintiff till the application under S.10 CPC was Sh. Mahinder Pratap Bhalla Vs. Sh. Narinder Pratap Bhalla 16 decided. The tone and tenure of the Ld. Trial Court thus made it clear when it said that the restrain order was till the next date of hearing i.e. 24.05.2013. Therefore, at best, the justice would have been served by directing the parties to maintain status quo till the next date or till such time when the application under S.10 CPC would have been disposed of.

17. Subsequently, on 24.05.2013 the Ld. Trial Court disposed of the application u/s S.10 CPC observing that the issue of S.10 CPC can be framed as an issue during the trial. That is how the application under S.10 CPC was disposed of and the purpose of defendant's application under S.151 CPC stood served. The whole matter was centrifugal to the issue of S.10 CPC, therefore the purpose of the order dated 20.05.2013 stood served from 20.05.2013 till 24.05.2013 (when the application u/s S.10 CPC was disposed of). However, the Ld. Trial Court enlarged the scope, ambit and the prayer of the application (under s.151 CPC) by premising its discretion on something which was never part of the averments. The Ld. Trial Court traversed to the previous order dated 06.08.2011 which was issued Sh. Mahinder Pratap Bhalla Vs. Sh. Narinder Pratap Bhalla 17 in favour of the plaintiff and against the defendants and observed:

"It is well settled law that a party who seeks equity must do equity. Even though the Court has passed an injunction in favour of the plaintiff allowing him free access to second floor, however, the Court did not permit the plaintiff to do any construction at the suit property."

18. Even if we consider the order of temporary injunction dated 06.08.2011, there happens to be no restrain on construction etc. Moreover, the Ld. Trial Court could not have dealt­with the issue of alleged construction (its nature and extent) when the same were never averred and pleaded by the defendants. The application under S.151 CPC (treated as an application under Order 39 rules 1 & 2 CPC) was based on the issue of S.10 CPC and no details like site plan, photographs etc. were provided for the perusal of the Ld. Trial Court. Therefore there was no material before the Ld. Trial Court to assess the situation. The relevant provision Sh. Mahinder Pratap Bhalla Vs. Sh. Narinder Pratap Bhalla 18 under Order 39 Rule 1 commences with the words "Where in any suit it is proved by affidavit or otherwise". In the present case there was no affidavit or any proof before Ld. Trial Court for it to form a judicial opinion on the issue whether the property was being wasted / damaged / alienated or not.

19. Another aspect relates to the order being ex­ parte. It is necessary for me to quote O.39 Rule 3 CPC which makes it necessary for a court to direct a notice to be served upon the opposite party. It says:

Before granting injunction, Court to direct notice to opposite party The Court shall in all case, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party:
Provided that, where it is proposed to grant an Sh. Mahinder Pratap Bhalla Vs. Sh. Narinder Pratap Bhalla 19 injunction without giving notice of the application to the opposite party, the Court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay,

20. The power granted under Rules 1 and 2 of Order 39 is subject to the conditions prescribed in Rule 3. As per Rule 3, in all the injunction applications the normal rule is to issue notice of the application to the opposite party. However, if it appears to the Court that the object of granting injunction would be defeated by delay, the Court shall, before granting an injunction, direct notice of the application for the same to be given to the opposite party. The Court can grant injunction without giving notice of the application to the opposite party by recording the reasons for its opinion and also require the applicant to fulfill the conditions stipulated.

21. The scope of Order 39, Rule 3, particularly giving reason/reasons for granting injunction without giving notice of the application to the opposite party and the effect of the same has been considered in various Sh. Mahinder Pratap Bhalla Vs. Sh. Narinder Pratap Bhalla 20 decisions. This question was elaborately considered in para 38 of their judgment:­ Shiv Kumar Chadha Etc.Etc vs Municipal Corporation Of Delhi (reported in 1993 SCR (3) 522 : 1993 SCC (3) 161) "It has come to our notice that in spite of the aforesaid statutory requirement, the Courts have been passing orders of injunction before issuance of notices or hearing the parties against whom such orders are to operate without recording the reasons for passing such orders."

..." The proviso was introduced to provide a condition, where Court proposes to grant an injunction without giving notice of the application to the opposite party, being of the opinion that the object of granting injunction itself shall be defeated by delay. The condition so introduced is that the Court "shall record the reasons" why an ex parte order of injunction was being passed in the facts and circumstances of a particular case. In this background, the requirement for recording the Sh. Mahinder Pratap Bhalla Vs. Sh. Narinder Pratap Bhalla 21 reasons for grant of ex parte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed why instead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party who invokes the jurisdiction of the Court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the Court about the gravity of the situation and Court has to consider briefly these factors in the ex­parte order."

"...The Parliament has prescribed a particular procedure for passing of an order of injunction without notice to the other side, under exceptional circumstances. Such ex parte orders have far­ reaching effect, as such a condition has been imposed that court must record reasons before passing such order. If it is held that the compliance with the Sh. Mahinder Pratap Bhalla Vs. Sh. Narinder Pratap Bhalla 22 proviso aforesaid is optional and not obligatory, then the introduction of the proviso by the Parliament shall be a futile exercise and that part of Rule 3 will be a surplusage for all practical purposes.

22. Proviso to Rule 3 of Order 39 of the Code, attracts the principle, that if a statute requires a thing to be done in a particular manner, it should be done in that manner or not at all. This principle was approved and accepted in well­known cases of Taylor v. Taylor, 1875 (1) Ch D 426: 45 LJ Ch 373), and Nazir Ahmed v. Emperor AIR 1936 PC 253(2) :63 IA 372: 37 Crl LJ

897. As such whenever a court considers it necessary in the facts and circumstances of a particular case to pass an order of injunction without notice to other side, it must record the reasons for doing so and should take into consideration, while passing an order of injunction, all relevant factors, including as to how the object of granting injunction itself shall be defeated if an ex parte order is not passed."

23. It is clear from Rule 3 that whenever the Court Sh. Mahinder Pratap Bhalla Vs. Sh. Narinder Pratap Bhalla 23 intends to grant ex parte injunction without notice to the opposite part, the Court shall record its reason/reasons for its opinion that the object of granting the injunction would be defeated by the delay and also require the applicant to fulfil the conditions stipulated in Clause (a) and (b) therein. It is to be noted that grant of injunction is an extraordinary power vested in the Court to be exercised taking into consideration the facts and circumstances of a particular case. The Courts have to be more cautious that when the said power is being exercised without notice or hearing the party who is to be affected by the order so passed. That is why Rule 3 of Order 39 of the Code requires that in all cases the court shall, before grant of an injunction, direct notice of the application to be given to the opposite party, except where it appears that object of granting injunction itself would be defeated by delay.

24. In the present case the Ld. Trial Court has ignored the settled principles of law. Therefore the impugned order cannot be sustained and is set aside.

Sh. Mahinder Pratap Bhalla Vs. Sh. Narinder Pratap Bhalla 24

25. The appeal is allowed and the impugned order dated 20.05.2013 is set aside. Appeal file be consigned to Record Room and TCR be returned back to the Trial Court along with copy of this order.

26. Parties are directed to appear before the Ld. Trial court on 24­08­2013 at 2 p.m. Announced in the open court on this 13th day of August, 2013.

(VEENA RANI) Additional Senior Civil Judge (South­East) Saket Courts, New Delhi Sh. Mahinder Pratap Bhalla Vs. Sh. Narinder Pratap Bhalla