Delhi District Court
Shri Udayjeet Prakash S/O Lt. Sh.Vidya ... vs M/S Fire Fighting(Delhi) Pvt. Ltd on 29 May, 2017
1
IN THE COURT OF Ms. VEENA RANI, ADDITIONAL DISTRICT JUDGE,
NEW DELHI DISTRICT, PATIALA HOUSE COURTS, NEW DELHI
Suit No:56376/2016
Shri Udayjeet Prakash S/o Lt. Sh.Vidya Parkash
R/o 33, (G.F), Sunder Nagar, New Delhi-110001 .....Plaintiff
Versus
M/s Fire Fighting(Delhi) Pvt. Ltd, .....Defendant No:1
Service to be effected through its
Managing Director Sh. S. K. Khanna,
33, Sunder Nagar, First Floor,
New Delhi-110001
Shri S.K. Khanna .....Defendant No:2
Managing Director,
M/s Delhi Fire Fighting Pvt. Ltd,
33, Sunder Nagar, First Floor,
New Delhi-110001
SUIT FOR PERMANENT INJUNCTION
Date of institution of suit :11-11-2008
Date of final argument :29-05-2017
Date of final judgment :29-05-2017
JUDGMENT
1) The plaintiff has filed the present suit for Permanent Injunction against the defendants No.1 & 2 seeking the relief(s) of permanently restraining both the defendants from subletting / parting with possession (to any third person) of the tenanted premises i.e. First Floor and Second Floor and the garage on the ground floor of the premises 33, Sunder Nagar, New Delhi (shown as red in the site plan). The plaintiff has also sought the relief of restraining the defendants no1 & 2 from CS No:56376/2016, Shri Udayjeet Prakash Vs. M/s Fire Fighting(Delhi) Pvt.
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2selling / transferring share-holding in the defendant no.1 company which would result in the altering of the possession vis-à-vis First Floor and Second Floor and the garage on the ground floor of the premises 33, Sunder Nagar, New Delhi (shown as red in the site plan).
2) The plaintiff's case as per the plaint is that the plaintiff is the owner-landlord of the premises 33, Sunder Nagar, New Delhi. The entire property bearing No. 33, Sunder Nagar, New Delhi was originally purchased and owned by Smt. Raj Mohini who was the mother of the plaintiff-herein. The said Smt. Raj Mohini died on 20.04.1988 and left behind a WILL dated 18.07.1987 by virtue of which the plaintiff claims to have become the absolute owner of the entire premises No. 33, Sunder Nagar, New Delhi. A copy of the sale deed in favour of Late Smt. Raj Mohini has also been relied upon. The plaintiff heavily relied upon the WILL dated 18.07.1987.
3) The defendant was originally stated to have been paying rent to the Late Smt. Raj Mohini with respect to the First Floor and Second Floor and the garage on the ground floor of the premises 33, Sunder Nagar, New Delhi (shown as red in the site plan). The plaintiff is stated to have been residing on the ground floor of the premises No. 33, Sunder Nagar, New Delhi and as the said accommodation is not sufficient for the residence of the plaintiff and his family members dependent upon him, the plaintiff requested the defendants to vacate the tenanted premises. It is sated that defendant no:1 took the premises in question on rent w.e.f. 1-4-1971 for the residence of the defendant no:2 Sh. S.K. Khanna, who is the managing director of the defendant no:1 and after the inception of the tenancy the defendant no:2 has acquired the property no:W-61, Greater Kailash, Part-II, New Delhi.
4) It is averred by the plaintiff that defendant no:1 is owned by defendant no:2 and he himself and his son namely Sh. Vineet Khanna, who is residing abroad, are the only directors of the defendant no:1 company and defendant no:1 is doing no business and is a company on papers only and defendant no:2 is keeping it alive for the tenancy of the premises in question only. It is stated that on the request of the plaintiff the defendants have flatly refused to vacate the tenanted premises and threatened the plaintiff to create third party interest in the tenanted premises and demanded the substantial amount for the vacation of the tenanted premises. It is CS No:56376/2016, Shri Udayjeet Prakash Vs. M/s Fire Fighting(Delhi) Pvt.
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3averred by plaintiff that this act of the defendant is illegal and unlawful. It is submitted that if the defendants succeed in their illegal designs of transferring the possession of the tenanted premises and to create third party interest then the plaintiff will suffer an irreparable loss and injury. Hence, the present suit.
5) The cause of action for filing the present suit stated to have accrued on 29-10- 2008 when the defendants finally threatened the plaintiff to transfer the possession of the tenanted premises to any third person and to transfer the share holding of the defendant no:1 company to some third party so that the said third party may claim the tenancy rights. Cause of action is still continuing as the threat subsists.
6) In their written statement the defendant has stated that property in suit was owned by Smt. Raj Mohini who died on 20-04-1988. It is stated that as far as the Will dated 18-07-1988 is concerned same is the subject matter of litigation between the plaintiff and his brothers and the petition filed by the plaintiff for the probate of the said Will was dismissed by the court and there is a serious dispute between the plaintiff and his brother. It is submitted that all the brothers are the co-owners of the suit property and the plaintiff is not the exclusive owner thereof. It is stated by defendant that he on the assertion of the plaintiff have attorned to the plaintiff as a landlord. Defendant further stated that defendant no:1 is a tenant in respect of first and second floors of the suit property. Defendant further stated that it is not denied that plaintiff is residing on the ground floor of the suit property. It is stated by the defendants that the assertion of the plaintiff that the suit premises is required bona fide by the plaintiff for himself and his family members is without any basis and the said plea besides being false, is malafide. Defendant further stated that plaintiff has filed an eviction petition u/s 14(1)(e) of Delhi Rent Control Act and the defendant no:1/company shall contest the said case on its own merits. Defendant denied that defendant no.1 took the premises for the residence of defendant no:2 only. Although, the defedant no:2 is the Managing Director fo the defendant no.1/company, but, the said defendant no:1 has various shareholders. It is denied that defendant no:1 is owned by defendant no:2. The defendant has not disputed that defendant no:2 had acquired property no:W-61, Greater Kailash, Part II, New Delhi but it is stated by defendant that the said property is of no consequences whatsoever. It is stated by the defendant that the question of defendants vacating the premises does not arise as the defendant no:1 company CS No:56376/2016, Shri Udayjeet Prakash Vs. M/s Fire Fighting(Delhi) Pvt.
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4continues to be a lawful tenant in the premises. It is denied that defendant no:2 has threatened to transfer the physical possession of the premises to a third person for a premium or threatened to transfer the shareholding to some third person for the reasons alleged by plaintiff. Defendant further denied the allegations that they indicated to the plaintiff that they would consider the vacation of the premises in favour of the plaintiff on payment of a substantial premium/money. The defendants have denied all other allegations leveled by the plaintiff in his plaint. The defendant prayed for dismissal of the suit with costs.
7) In his replication the plaintiff has reiterated the averments made by him in the plaint and denied the contents of the written statement.
8) From the pleadings of the parties, the following issues were framed for the trial of the case on 13.08.2009 :-
i. Whether the plaintiff is entitled to the relief of injunction as prayed for by him? OPP ii. Whether the plaintiff has no cause of action to file the present suit? OPD iii. Relief.
9) The plaintiff has got himself examined as PW-1 and has tendered his evidence by way of affidavit which is Ex.PW-1/A which bears the plaintiff's signature at points A and B. The plaintiff relied upon the documents exhibited as PW-1/1 to PW-1/5.
The documents Ex.PW-1 /3 to Ex. PW-1/5 are already admitted by the defendant and therefore the said documents were exhibited as X.P1 to Ex.P3.
10) During the cross-examination of the plaintiff it was admitted by the plaintiff that the proceedings with respect to the probate of the WILL dated 18.07.1987 was dismissed.
CS No:56376/2016, Shri Udayjeet Prakash Vs. M/s Fire Fighting(Delhi) Pvt.
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511) The defendant Sh. S.K. Khanna, defendant no:2 has examined himself as DW1 and tendered his evidence by way of affidavit Ex.DW1/A. In his affidavit he has retreated the averments made by him in his written statements. DW1 was partly crossed at length by the counsel for the plaintiff, but thereafter DW1 has not appeared for for his cross-examination, therefore, his evidence was closed vide order dt. 07-07-2015. DE was also closed vide order dt.17-12-2016 when despite last and final opportunity the defendant has failed to lead Defendant's evidence.
12) I have heard the arguments of ld. Counsel for the parties and perused the record. My findings on the issues are as under:-
13) Being the preliminary issue I am deciding the issue no:2 first.
Issue No.2 : Whether the plaintiff has no cause of action to file the present suit? OPD Onus to prove this issue was upon the defendant. The defendant has vehemently argued that the plaintiff-herein had no authority to institute the present suit without impleading all the Legal Heirs of Late Smt. Raj Mohini - particularly after the probate proceedings vis-à-vis the WILL dated 18.07.1987 having been dismissed by the concerned District Judge. The arguments of the defendant-herein is that a proceeding by one of the co-owners shall only lie when no objections are raised by the rest of the co-owners and the dismissal of the probate proceedings tantamount to an objection on the WILL and hence 'no-consent' from rest of the co-owners. This is the main argument rendered by the defendants. It has also been strongly argued that the WILL dated 18.07.1987 has not been proved by the plaintiff and anyway stand meaningless after the dismissal of the probate proceedings.
The plaintiff has countered the said argument by producing the settlement reached during the pendency of the partition suit between the Legal Heirs of Late CS No:56376/2016, Shri Udayjeet Prakash Vs. M/s Fire Fighting(Delhi) Pvt.
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6Smt. Raj Mohini in the Civil Suit No. CS(OS) 2506/2000 entitled "SARABJIT PRAKASH AND ANR. versus UDAYJIT PRAKASH AND ORS" which was disposed of by the Hon'ble High Court on the basis of the settlement amongst the LRs of Late Smt. Raj Mohini.
The Hon'ble Delhi High Court in the matter SARABJIT PRAKASH AND ANR. versus UDAYJIT PRAKASH AND ORS {CS(OS) 2506/2000 } had considered the Settlement Agreement amongst the parties:
i. Mr. Sarabjit Prakash ii. Mr. Inderjit Prakash, iii. Sh. Udayjit Prakash (plaintiff-herein) iv. Smt. Veena Uppal v. Smt. Chander Kochhar vi. Smt. Sushma Lal vii. Smt. Deepa Puri The Hon'ble Delhi High Court in its order dated 18.08.2015 had clear observed that the parties to the suit have settled their disputes amicably before Delhi High Court Mediation and Conciliation Centre on 17th August, 2015, on the terms and conditions as stipulated in Settlement Agreement dated 17th August, 2015, which is marked as "Mark C-1". Parties were to remain bound by the terms and conditions as stipulated in "Mark C-1". The said Suit for partition was accordingly decreed in terms of "Mark C-1", which shall form part of the decree.
The plaintiff-herein had challenged the dismissal of the probate CS No:56376/2016, Shri Udayjeet Prakash Vs. M/s Fire Fighting(Delhi) Pvt.
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proceedings before by way of an appeal FAO No. 492/2000 entitled "Udayjeet Prakash v. State" before the single bench of the Hon'ble High Court which was pleased to observe while taking into account the settlement reached amongst the parties:
"1.6 The said settlement agreement has received the imprimatur of a single Judge of this court vide judgement and decree dated 18.08.2015. The learned single Judge has directed that a decree be drawn up in terms of the settlement agreement (Mark C-1)."
"2. In that view of the matter, the pending contest between the parties before me has lost its efficacy and relevance. Since, the appellants, had preferred the instant appeal against the impugned judgment dated 23.09.2000, the said judgment was obviously in jeopardy. However, before this court could take a view one way or the other, as regards the tenability of the view taken in the impugned judgement, a settlement was arrived at between the parties, and therefore, the parties pray that the appeal and the pending application be disposed of, in terms of the decree dated 18.08.2015 passed by the learned single Judge of this court, in CS(OS) 2506/2000, which in turn, is predicated, on the settlement agreement dated 17.08.2015. 3. With the aforesaid observations in place, the captioned appeal and the pending applications are disposed of, as prayed."
According to the settlement reached amongst the LRs of Late Smt. Raj Mohini all the LRs admitted the correctness of the WILL dated 18.07.1987 and agreed to give full effect to the said WILL. It was specifically agreed that the correctness of the said WILL shall not be questioned. The plaintiff-herein was the "THIRD PARTY" in the settlement agreement dated 17.08.2015. The parties had also specifically agreed / admitted and declared as per clause No. 6 that the property No. 33 Sunder Nagar, New Delhi belonged to and owned by the THIRD PARTY i.e. Sh. Udayjeet Prakash (the plaintiff-herein) in terms of the WILL dated 18.07.1987 so executed by Late Smt. Raj Mohini.
This court is bound to take a judicial notice of the observations made by CS No:56376/2016, Shri Udayjeet Prakash Vs. M/s Fire Fighting(Delhi) Pvt.
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8the Hon'ble High Court in the Partition Suit as well as the Appeal against the probate dismissal in view of the settlement before the Ld. Mediator. Therefore the arguments of the defendants holds no water. The Issue no.2 is accordingly decided in favour of the plaintiff and against the defendants no1 & 2.
14) ISSUE NO:1 Whether the plaintiff is entitled to the relief of injunction as prayed for by him? OPP The onus to prove this issue was upon the plaintiff. Plaintiff has examined himself as PW1. The relief of injunction as sought by the plaintiff is segmented into two :-
i. Permanently restraining both the defendants from subletting / parting with possession (to any third person) of the tenanted premises i.e. First Floor and Second Floor and the garage on the ground floor of the premises 33, Sunder Nagar, New Delhi (shown as red in the site plan).
ii. Permanently restraining both the defendants from selling / transferring share-holding in the defendant no.1 company which would result in the altering of the possession vis-à-vis First Floor and Second Floor and the garage on the ground floor of the premises 33, Sunder Nagar, New Delhi (shown as red in the site plan).
As far as the first segment of relief relating to the subletting / parting with the possession is concerned the plaintiff has admitted in his cross-examination that only defendant no.1 (the company) is his tenant and not the defendant No.2 (the MD of the company D-1), though it was admitted that the D-2 was the MD of D-1. The plaintiff further stated that the threat of parting with the possession of the premises was given sometimes in the year 2008. It was volunteered by the plaintiff CS No:56376/2016, Shri Udayjeet Prakash Vs. M/s Fire Fighting(Delhi) Pvt.
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9that the defendant had claimed some money for vacating the premises and the threat was given when the plaintiff had refused to give money. The threat was oral. The suggestions regarding 'no threat given by the defendant' and 'no demand of money to vacate' was denied by the plaintiff.
An injunction suit is a discretionary relief which can be granted by a court by way of a judicial process if the opposite party has invaded or threatened to invade the legal or equitable right of the other. An injunction may be mandatory or prohibitory; object of such an injunction being generally protective and preventive. An injunction can be granted to a plaintiff/landlord to prevent the breach of an obligation existing in his favour under the tenancy when the defendant/tenant has threatened to invade this right of the plaintiff by using the demised premises in a manner not consistent with the covenants of the lease or the terms of tenancy between the parties. This remedy which is available to the landlord is distinct and different from a remedy which would be available under Section 14 (1) (b) of the Delhi Rent Control Act which is a contingency which would arise only when the actual act of subletting or parting with the possession of the disputed property has been completed by the tenant in favour of a sub- tenant. Remedy available to such a landlord is adequately envisaged by filing a suit for injunction. Both the courts below have erred in holding that such a suit is not maintainable.
As far as the second segment of the relief relating to the selling / transferring share-holding in the defendant no.1 company is concerned the defendant No.2 i.e. Sh. S.K. Khanna (MD of M/s Delhi firefighting Pvt. Ltd.) examined as DW-1 has admitted thus :
"...I do not remember as to who were the shareholders and what was their shareholding at that relevant time. I do not recollect as to whether any shareholding was to the extent of more than 90% as on 01.04.1971. Although I can produce the original memorandum and article of association. It might be a possibility that I had parted with a part of my shareholding since then..."
CS No:56376/2016, Shri Udayjeet Prakash Vs. M/s Fire Fighting(Delhi) Pvt.
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10"...Prior to incorporation , I was a whole time Directors with one of the subsidiary of M/s George Angus India Ltd. Prior to 01.04.1971 m I was residing at 33, Sunder Nagar, First Floor, New Delhi-03. (Vol. I occupied the premises in the year 1963 upon transfer from Kolkata. Again said, the tenancy was under the name of M/s George Angus India Ltd.). It is correct that M/s George Angus India Ltd. continued to be the tenant till 31,03.1971 and I was occupying the same in my capacity as an employee. I continued to be with the employment of the subsidiary company till around the time when the defendant no.1 was incorporated."
"It is correct that on my request the tenancy of M/s George Angus India Ltd. was transferred in the name of defendant no.1. I did not make any representation to the landlord that I am the Managing Director and would continue to occupy the premises in that capacity...."
"...We continued to use the premises at Sunder Nagar as a company guest house as well as the residence..."
It is also the case of the plaintiff that the defendant no.1 is not carrying any business in substance and is only shown on papers for the purposes of retaining the premises-herein. In order to establish this the defendant no.2 was cross- examined about his son Sh. Vineet Khanna (not a party in this suit). The salient excerpts of the said cross-examination are:
"I am not certain as to when Vineet Khanna went to US. (Vol. It must be around the year 1970.). At the time of his visit to US he was around 18/19 years old. Agiant said he was born in the year 1958. He went for higher studies. After completion of his studies, he started working in US. He undertook employment in the field of information technology and marketing. /he must have applied for issuance of green card. He was granted green card by the Government of US, however, I do not know the year when he was granted. I do not know CS No:56376/2016, Shri Udayjeet Prakash Vs. M/s Fire Fighting(Delhi) Pvt.
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whether he had opted for US citizenship..."
...."He is married and has two children. His wife is staying with him in America and his son is studying in Doon School Dehradun. (Vol. He also lives in India). I do not know about the citizenship of his wife as well as his children. (Vol. His wife is an Indian National). "
"Mr. Vineet Khanna visits India for around 4-6 times a year. I cannot produce his passport and I do not know whether he holds Indian or American passport".
The above-said cross-examination does bring out an element of probability, circumstance and reason on part of the defendant no.2 to create a third party interest in the premises. The palntif has been able to establish his fears of having his property handed over to a third party. The witness DW-1 was put to cross- examination and was further granted opportunities to bring documents etc. Several opportunities were given to DW-1 from 30.08.2011 onwards for the remaining cross-examination. However, the DE was closed on 07.07.2015 and the said DW-1 did not present himself for the further cross-examination.
As per S.38. of the Specific Relief Act, Perpetual injunction when granted.
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(1) Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication.
(2) When any such obligation arises from contract, the court shall be guided by the rules and provisions contained in Chapter II.
(3) When the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of, property, the court may grant a perpetual injunction in CS No:56376/2016, Shri Udayjeet Prakash Vs. M/s Fire Fighting(Delhi) Pvt.
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12the following cases, namely:--
(a) where the defendant is trustee of the property for the plaintiff;
(b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;
(c) where the invasion is such that compensation in money would not afford adequate relief;
(d) where the injunction is necessary to prevent a multiplicity of judicial proceedings.
A injunction against alienation is a court order which prevents a party from disposing of or dealing with its assets. Usually an application for such injunction is made when the applicant fears that the other party will dispose of its assets before judgment can be obtained and enforced. However, a freezing injunction can be sought at any time - during the course of proceedings and after judgment has been obtained (to prevent the disposal of assets before the judgment is enforced). The law of injunction in India has its origin in the Equity Jurisprudence of England from which we have inherited the present administration of law. England too in its turn borrowed it from the Roman Law wherein it was known as Interdict. The Roman Interdicts were divided in three parts, prohibitory, restitutory and exhibitory. The prohibitory Interdict corresponds to injunction. The injunction as a chancery remedy developed at the time of Henry, the Vlth. The Chancellor set aside a certain bond by the plaintiff as one not binding on him. The Court of Common Pleas, however, gave a decree with bond. Chancellor thereupon devised the remedy of injunction by which he prohibited execution of the decree of Common Law Court. This exercise of power by issuing injunction by the Chancery Court was viewed with jealousy by the Common Law Court and it became a source of conflict between the two jurisdictions. This conflict rose to the climax between the Lord Justice Coke and Lord Chancellor Ellesmere in 1816. A decree was obtained from Lord Coke by practising gross fraud. The Chancellor thereupon by an injunction perpetually enjoined the decree-holder from CS No:56376/2016, Shri Udayjeet Prakash Vs. M/s Fire Fighting(Delhi) Pvt.
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13proceeding to execute his judgment. The validity of this procedure of issuing injunction was seriously questioned. The matter was referred to Bacon, the then Attorney General and other counsel, who finally settled the question in favour of Chancellor. The jurisdiction to issue injunctions was thus affirmed and the remedy which is termed as the strong arm of the Courts of equity has contributed a lot to consolidate the position of the judiciary in dispensing justice between the litigant parties.
Permanent Injunction: As is clear from Section 37 (2) of Specific Relief Act, 1963 (hereinafter referred to as the Act), a perpetual injunction can only be granted by the decree made at the hearing and upon the merit of the suit. The defendant is thereby perpetually enjoined from the assertion of a right or from the commission of an - act which would be contrary to the right of the plaintiff. Section 38 of the Act further provides the circumstances where the perpetual injunction may be granted in favour of the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication. In contractual matters when such obligation arises, the Court has to seek guidance by the rules and provisions contained in Chapter II of the Act dealing with specific performance of contracts. Sub- Section (3) of Section 38 in clauses (a), (b), (c) and
(d) further illustrates the circumstances where a perpetual injunction may be granted by the Court. The mandatory injunctions are contemplated under Section 39 of the Act where it is necessary to prevent the breach of an obligation and the erring party may be compelled to perform certain acts. Section 40 provides for granting damages in lieu of or in addition to injunction. Section 41 provides circumstances where the injunction should be refused. Section 42 provides for grant of injunction to perform a negative agreement. It was made clear at the beginning that the Law of Injunction is vast and expansive jurisdiction and it forcefully illustrates the power of equity in spite of the fetters of codification to march with the times and adjust the beneficial remedies to altered social conditions and the progressive needs of the humanity.
The first Specific Relief Act was codified in the year 1877 which was replaced by the Specific Relief Act of 1963 (Act No.47 of 1963). In spite of the codification the law of injunction continued to expand and it fulfilled the needs of the society in different shapes - and forms. The codification of the law has never CS No:56376/2016, Shri Udayjeet Prakash Vs. M/s Fire Fighting(Delhi) Pvt.
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14proved a fetter. In this context, a Civil Court should never have any hesitation in granting injunction to new circumstances and situations. Our society is a progressive society, our country is a developing country and with the growth of the industry one may be called upon to administer law of injunction to various kinds of new situations which were wholly unknown to this field earlier. The essential test should, however, remain equity. In this context the views expressed by the Courts and Jurists may be gainfully quoted here : "It is the duty of a Court of Equity," said Lord Cot ten hem in Taylor v. Selmon, (and the same is true of all Courts and institutions), "to adopt its practice and course of proceedings, as far as possible, to the existing state of society and to apply its jurisdiction to all those new cases which from the progress daily made in the affairs of men must continually arise and not from too strict an adherence to forms and rules established under very different circumstances decline to administer justice and to enforce rights for which there is no other remedy."
Similarly, the view expressed by the great jurist Shri Banerjee in Tagore Law Lectures as far back as in 1906 may be remembered by us as a good guide even today in this field of law. Banerjee said: 'Since an obligation includes every duty enforceable by law this form of specific relief, it would appear, is applicable to all cases where one person can enforce a duty against another, or to use the correlative term, where one person is vested with a right which empowers him to constrain the other to adopt a particular line of conduct, or to do or abstain from doing a particular act. This right mayor may not arise out of a contract, and the remedy of injunction, by which preventive relief is granted by a Court, may be held to be available throughout the whole range of the law, But the jurisdiction is carefully defined in part Ill, Specific Relief Act, and to some extent circumscribed. It still remains, however, a vast and expansive jurisdiction, and forcibly illustrates the power of equity, in spite of the fetters of codification, to march with the times and adjust the beneficial remedies to altered social conditions and the progressive needs of humanity.' Mr. H.C. Joyce also in his Law of Injunctions has expressed identical views. He says, 'As a remedy for preventing wrongs and preserving rights, the injunction has been regarded as more flexible and adjustable to circumstances than any other process known to law. The correctness of the estimate is seen in the CS No:56376/2016, Shri Udayjeet Prakash Vs. M/s Fire Fighting(Delhi) Pvt.
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15readiness with which injunctions yield to the convenience of the parties, the case with which damages are substituted in their place when justice and public interest so require, the facility with which a preventive and a mandatory injunction are made to co-operate so that by single exercise of equitable power an injury is both restrained and repaired, and the facility with which injunctive relief can be applied to new conditions and adjusted to the changing emergencies of modern enterprise. In this connection it may be declared that as writ of injunction may be said to be a process capable of more modification than any other in the law, it is so malleable that it may be moulded to suit the various circumstances and occasions presented to a Court of Equity. It is an instrument in its hands capable of various applications for the purpose of dispensing complete justice between the parties. It may be special, preliminary, temporary or contracted, in short it is adopted, and is used by Courts of Equity, as a process for preventing wrong between, and preserving the rights of parties in controversy between them...so, where, too, if a party cannot at once comply with an injunction without being put to great expense or grievous annoyance, the Court may order that the injunction do not commence until after a certain stated period. Injunction should not be denied on the ground of its novelty in application, if the exigencies of the situation required it and if it does not militate against statutory provision.
The Courts should act according to justice, equity and good conscience, when there is no specific rule applicable to the circumstance of the case." Once the aforesaid basics of this equity jurisdiction become clear, there may not be any difficulty in its application to various situations - One may be called upon to grant injunction in various kinds of disputes which may be commercial non- commercial, marital, non-marital, encroachment over civil rights etc. The list of these situations cannot be given here. A civil dispute calling for a preventive relief may come before one in any shape and then one may be guided by principles of equity, justice and good conscience in granting relief. The hesitation should not be there when equitable consideration demand and justify it. {LAW OF INJUNCTIONS by Justice R. R. K. Trivedi Judge, Allahabad High Court [J.T.R.I. JOURNAL - Second Year, Issue - 4 & 5 - Year - March, 1996]} {source - http://ijtr.nic.in/articles/art25.pdf} It is well settled that a suit has to be tried on the basis of the pleadings of CS No:56376/2016, Shri Udayjeet Prakash Vs. M/s Fire Fighting(Delhi) Pvt.
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16the contesting parties which is filed in the suit before the trial court in the form of plaint and written statement and the nucleus of the case of the plaintiff and the contesting case of the defendant in the form of issues emerges out of that. Being a civil suit for injunction, this suit is to be decided on the basis of preponderance of probabilities. As held in Raj Kumar Singh & Anr. Vs. Jagjit Chawla, reported in 183 (2011) DLT 418, "A civil case is decided on balance of probabilities. In the case of Vishnu Dutt Sharma Vs. Daya Sapra, reported in (2009) 13 SCC 729, the Hon'ble Supreme Court was pleased to observe as under:
'' 8. There cannot be any doubt or dispute that a creditor can maintain a civil and criminal proceedings at the same time. Both the proceedings, thus, can run parallel. The fact required to be proved for obtaining a decree in the civil suit and a judgment of conviction in the criminal proceedings may be overlapping but the standard of proof in a criminal case visavis a civil suit, indisputably is different. Whereas in a criminal case the prosecution is bound to prove the commission of the offence on the part of the accused beyond any reasonable doubt, in a civil suit " preponderance of probability" would serve the purpose for obtaining a decree".
In (2003) 8 SCC 752 it has been held:
"Whether a civil or a criminal case, the anvil of testing of " proved", " disproved" and " not proved" as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. It is the valuation of the result drawn by the applicability of the rule contained in Section 3 of the Evidence Act, 1872 that makes the difference. In a suit for possession of property based on title, if the plaintiff creates a high degree of probability of his title to ownership, instead of proving his title beyond any reasonable doubts, that would be enough to shift the onus on the defendant. If the defendant fails to shift back the onus, the plaintiff's burden of proof would stand discharged so as to amount to proof of the plaintiff's title."
In the present suit the plaintiff has been able to establish that the defendant CS No:56376/2016, Shri Udayjeet Prakash Vs. M/s Fire Fighting(Delhi) Pvt.
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17no.1 might create third party interest in the tenanted premises. The cross- examination of the DW-1 brings out the circumstances. Be it the admission on part of the DW-1 that the premises-herein has been used also as company guest-house or be it the case of the defendant's son Vineet Khanna of apparently having settled in the US with is family. Therefore the issue No.1 is also decided in favour of the plaintiff and against the defendants no. 1 & 2 only to the extent of creation of any third party interest.
15) Relief. In view of my finding on issue no:1, a decree of Permanent Injunction is passed in favour of the plaintiff and against the defendants No.1 & 2 to the extent that the said defendants No.1 & 2 or their agent / servant / representatives / assignees / LRs etc. are perpetually restrained from:
i. subletting / parting with possession (to any third person) of the tenanted premises i.e. First Floor and Second Floor and the garage on the ground floor of the premises 33, Sunder Nagar, New Delhi (shown as red in the site plan); and ii. doing anything which would or might have the consequence of any third party interest being created vis-à-vis altering the possession of First Floor and Second Floor and the garage on the ground floor of the premises 33, Sunder Nagar, New Delhi (shown as red in the site plan).
Decree Sheet be drawn accordingly and file be consigned to record room.
Announced in the open court
29-05-2017 (VEENA RANI)
ADDITIONAL DISTRICT JUDGE,
NEW DELHI DISTRICT, PATIALA
HOUSE COURTS,NEW DELHI
Judge Code:DL0271
CS No:56376/2016, Shri Udayjeet Prakash Vs. M/s Fire Fighting(Delhi) Pvt.
Ltd. & Anrs.
18IN THE COURT OF Ms. VEENA RANI, ADDITIONAL DISTRICT JUDGE-IV, NEW DELHI DISTRICT, PATIALA HOUSE COURTS, NEW DELHI Suit No:56376/2016 Shri Udayjeet Prakash .....Plaintiff Versus M/s Fire Fighting(Delhi) Pvt. Ltd. & Anrs. .....Defendants 29-05-2017 Present: Counsel for plaintiff.
Ld counsel for defendant.
Final argument heard.
Vide my separate judgment suit of the plaintiff is decreed against the defendants. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the open court.
(VEENA RANI) Additional District Judge-IV, New Delhi District, Patiala House Courts, New Delhi/29-05-2017 Judge Code:DL0271 CS No:56376/2016, Shri Udayjeet Prakash Vs. M/s Fire Fighting(Delhi) Pvt.
Ltd. & Anrs.