Delhi District Court
Sh. Anurag Gopal vs Sh. Ashish Gopal & Ors on 21 January, 2012
Suit No. 402/2011
IN THE COURT OF MS. SHEFALI SHARMA
CIVIL JUDGE (WEST): TIS HAZARI COURTS: DELHI
Suit No. 402/2011
Sh. Anurag Gopal
........Plaintiff
Versus
Sh. Ashish Gopal & Ors.
....Defendants
Order:
Vide this order, I shall dispose off an application under Order
XXXIX Rule 1 and 2 CPC filed on behalf of the plaintiff against defendants. The
brief facts for the effectual disposal of the instant application are as follows:
1.That the plaintiff and the defendant no. 1 are real brothers and the defendant no.2 is the wife of the defendant no. 1. That the property bearing no. WZ78, Beriwala Bagh, Hari Nagar, New Delhi was owned by father of the plaintiff namely Sh. Shyam Gopal which was partitioned between the parties including the plaintiff and the defendants. The joint family settlement dated 21.09.2006 was executed between all the parties in the court of Sh. Vinay Singhal, SCJ, Delhi. As per the settlement, portion shown red colour in the site plan attached was declared common passage which goes through the plots/ houses of the plaintiff and defendant no. 1. At present the common passage shown red colour in site plan is the only passage which goes through the plots/ houses of the plaintiff and defendant no. 1. At present the common passage shown red colour Anurag Gopal vs. Ashish Gopal & Ors. 1/11 Suit No. 402/2011 in site plan is the only passage leading to the house of the plaintiff. The said common passage was also shown as common passage in the site plan which is part of the family settlement. That the defendants are having an evil design on the common passage leading from the main gate to the house of the plaintiff. The defendants have already encroached upon part of the common passage and have constructed part of their house on the said common passage. Now the defendants are bent upon to encroach upon the entire common passage in front of their plot/ house and use the same for their personal use only. That with the said object the defendants are picking up quarrels with the plaintiff and are threatening him to close the main gate so that plaintiff may not use the common passage for coming and going to his house.
That on 26.03.2010, the defendant no. 1 picked up a quarrel with the plaintiff and used filthy language on the question of closing the main gate with his own lock. The defendant no. 1 threatened the plaintiff with dire consequences if he used the passage again. The plaintiff served a notice dated 30.03.2010 through his counsel upon the defendant no. 1.
That the plaintiff is a patient of injury in hip joint for the last about two years. The plaintiff had undergone a surgery for replacement of hip joint which was not successful. The plaintiff at present is going through physiotherapy treatment and his another surgery for the replacement of hip jont has been fixed in the month of March, 2012.
Anurag Gopal vs. Ashish Gopal & Ors. 2/11 Suit No. 402/2011 That the plaintiff due to above injury is partially handicapped and he cannot walk without pain and without the help of another person. The plaintiff is a single parent and the defendants are taking benefit of these circumstances.
That on 17.10.2011, the plaintiff and his daughter aged about 13 years returned from a dinner party at about 08:30 PM and they found the main gate locked. The defendants were called to open the lock. The defendant no. 1 refused to open the lock. The defendant no. 1 abused the plaintiff and his daughter and pulled out the plaintiff from the car and gave 45 blows. The defendant no. 2 pulled the hair of the daughter of the plaintiff and plunked her face with her nails. That the plaintiff called the police at no. 100 and the police took both the plaintiff and his daughter to Deen Dayal Upadhaya Hospital for medical assistance. When the plaintiff and his daughter returned from the hospital at about 01:30 am they found the main gate again locked and police was again called by the plaintiff, who got the door opened from the defendants.
The aforesaid facts gave the cause of action to the plaintiff to file the present suit and press the instant application under Order XXXIX Rule 1 and 2 CPC seeking the relief that defendants be restrained from closing the main gate and from putting their locks on the main gate of the common passage of the property bearing no. RZ78, Beriwala Bagh, Hari Nagar, New Delhi shown red in the site plan till the final disposal of the suit.
Anurag Gopal vs. Ashish Gopal & Ors. 3/11 Suit No. 402/2011
2. The plaintiff, in order to substantiate his contentions, has placed on record the photocopy of the heading of the suit filed in the court of Sh. Vinay Singhal, Ld. SCJ, photocopy of Memorandum of Family Settlement/ Arrangement dated 21.09.2006, photocopy of the site plan, copy of prescription slip and progress notes in favour of Sh. Anurag Gopal and Aanabi Gopal d/o Anurag Gopal of Deen Dayal Upadhyay Hospital, photocopy of Xray report of Sh. Anurag Gopal and OPD ticket, photocopy of the application written by Anurag Gopal to the Head of Department of DDU hospital dated 24.10.2011, photocopy of FIR dated 02.11.2011, photocopy of Legal notice dated 30.03.2010 and original site plan.
3. In response to the present application, it is submitted on behalf of defendants no. 1 and 2 that the plaintiff has tried to misinterpret the site plan and the Memorandum of Understanding entered into between the parties before the court of Sh. Vinay Singhal, Civil Judge, Delhi and also before the Mediation Centre. During the pendency of the suit before the court of Sh. Vinay Singhal, Civil Judge, Delhi, a Settlement had arrived at between the parties wherein the portions amongst the parties were divided which was duly shown in the site plan Ex. P1 in different colours and was duly signed by all the parties which forms the part and parcel of the court orders and is binding upon the parties. The same site plan has now been misinterpreted by the plaintiff. Original site plan Ex. P1 shows that the alleged common passage is not at all a common Anurag Gopal vs. Ashish Gopal & Ors. 4/11 Suit No. 402/2011 passage, rather the same is an exclusive portion of the defendant no. 1 in which the plaintiff has got absolutely no right, title or interest. The perusal of the site plan will show that the portion shown in orange colour exclusive falls in the share of the defendant no. 1 Dr. Ashis Gopal while the portion shown in green colour falls in the share of the plaintiff. In the site plan Ex. P1, the common passage has been clearing shown which is leading from the entrance to the portion of the plaintiff as well as to the portion of the defendant besides other portion. The said settlement has been arrived at between the parties on 21.09.2006 and the parties have put their respective signatures on the said site plan on 21.09.2006 thereby admitting the factum as mentioned in the site plan and the said partition has already acted upon the parties. However, now the intention of the plaintiff has become dishonest and with a malafide intention, he intends to grab the portion belonging to the defendant no. 1 having no right, title or authority to do so.
That the prayer made in the present suit as well as the prayer made in the interim application under Order XXXIX Rule 1 and 2 CPC are one and the same and granting of interim relief amounts to decreetal of the suit, which proposition has been discarded by various judgments of various High Courts and Supreme Court of India by giving findings that in case, the granting of interim relief amounts to decreetal of the suit, in that event, the interim relief cannot be granted. Hence, the present suit as well as the interim application are Anurag Gopal vs. Ashish Gopal & Ors. 5/11 Suit No. 402/2011 liable to be dismissed.
That the present suit has been filed for ulterior motives as the plaintiff is having the malafide intention to grab the passage which exclusively owned and belonged to the defendant no. 1 as per site plan Ex. P1. The plaintiff during the late night hours used to return to his house in the company of some unsocial elements and all of them come to the house in heavy drunkard condition using filthy and abusive/ dirty language and created lot of hue and cry which was objected by the defendant no. 1.
That the land underneath the house of the plaintiff and the defendants and other coowners was exclusively owned by the defendant no. 1 as the same was received by him as a gift which was made by late Dewan Swaroop Lal, the grandfather of the defendant no. 1. The said Gift Deed was duly registered in the office of SubRegistrar, Delhi on 14.01.1971 and at that time, the defendant no. 1 was minor and was having the age of 4.5 years and the father of the defendant no. 1 Sh. Shyam Gopal was appointed as guardian of the defendant no. 1. However, at the time of entering into the Memorandum of Understanding dated 21.09.2006, the said property was shown as joint Hindu Family Property as the defendant no. 1 wanted to settle/ resolve all the disputes and to get rid of all problems and also with a view to have peaceful life in future.
4. In order to prove their contentions, defendants have filed the certified copy of proposed site plans and photocopy of Gift deed.
Anurag Gopal vs. Ashish Gopal & Ors. 6/11 Suit No. 402/2011
5. I have heard Sh. O. P. Sharma, Ld. Counsel for the plaintiff and Sh. N. K. Jain, Ld. counsel for defendant no. 1 and gone through the material available on record.
6. It is a settled law that a party is entitled to an order of injunction only if he is able to satisfy the court that a strong prima facie case has been made out in his favour, the balance of convenience also lies in his favour and that refusal of injunction will cause an irreparable injury to him.
Prima facie case means that there is a likelihood of infraction of a legal right of the plaintiff by the defendant. It means that the case of the plaintiff raises a triable issue which needs investigation, consideration and adjudication.
The plaintiff is also to establish that balance of convenience lies in his favour. Balance of convenience connotes comparative mischief likely to be caused to either party in case of grant or refusal of relief of injunction.
The plaintiff is also to satisfy the court that noninterference by the court would result in an irreparable injury and that there is no other remedy available to him except one i.e. the grant of injunction in his favour. Irreparable injury means an injury which is a material one and one that cannot be adequately compensated by way of damages. Further, it is a settled law that grant of temporary injunction is an equitable relief wherein the plaintiff has to satisfy the court that he has acted bonafidely.
Anurag Gopal vs. Ashish Gopal & Ors. 7/11 Suit No. 402/2011
7. In the present case, admittedly, there was a Joint Family Settlement dated 21.09.2006 executed between the parties before the court of Sh. Vinay Singhal, the then Ld. SCJ. According to that the said settlement, various portions of the entire property bearing no. WZ78, Beriwala Bagh, Hari Nagar, New Delhi which were allocated to the plaintiff as well as the defendants had been clearly demarcated. It is the contentions of the plaintiff that the passage as shown in red colours in the site plan filed by him which is the passage in dispute in the present case, was actually a common passage for the use of both the parties and the defendants have put locks on the main gate to the said alleged common passage which led the plaintiff to file the present suit and press the instant application. The plaintiff has filed various documents including the Memorandum of Settlement dated 21.09.2006 as well as the photocopy of the site plan.
On the other hand, it is the case of the defendant that the plaintiff has tried to misinterpret the site plan and the Memorandum of Understanding entered into between the parties before the court of Sh. Vinay Singhal, Civil Judge, Delhi and also before the Mediation Centre. During the pendency of the suit before the court of Sh. Vinay Singhal, Civil Judge, Delhi, a Settlement had arrived at between the parties wherein the portions amongst the parties were divided which was duly shown in the site plan Ex. P1 in different colours and was duly signed by all the parties which forms the part and parcel of the court Anurag Gopal vs. Ashish Gopal & Ors. 8/11 Suit No. 402/2011 orders and is binding upon the parties. The same site plan has now been mis interpreted by the plaintiff. Original site plan Ex. P1 shows that the alleged common passage is not at all a common passage, rather the same is an exclusive portion of the defendant no. 1 in which the plaintiff has got absolutely no right, title or interest. The defendants have furnished the certified copy of the site plan which were relied upon by the parties at the time of agreement.
The main dispute in the present case is whether the passage as shown by the plaintiff in the photocopy of the site plan, was a common passage or exclusively for the use of defendants. This is an issue which can be effectively decided after the parties have led their respective evidence. However, at this stage, the certified copy of the site plan filed by the defendants, prima facie, carries more weight than mere a photocopy filed by the plaintiff.
On the perusal of the certified copy of the site plan Ex. P1, it is revealed that the portion marked in orange colour is in exclusive ownership and in possession of defendant no. 1 and the portion in green colour has fallen into the share of the plaintiff. The existing passage in question which is now marked as MarkA to MarkB prima facie falls in the orange coloured portion of defendant no. 1. The said site plan is duly signed by all the parties including the plaintiff and the plaintiff has not denied his signatures on the site plan Ex. P1. Thus prima facie, it appears that passage in question falls in the exclusive share of the defendants. However, at this stage, as is already discussed above, no Anurag Gopal vs. Ashish Gopal & Ors. 9/11 Suit No. 402/2011 finality can be given to this issue unless the evidence is led by the parties.
It is also pertinent to mention that there is another passage shown as a proposed common road in the site plan which leads to the house of the plaintiff herein. The case of the plaintiff is that it is not convenient for him to enter his house in view of the alleged locks which have been put on the passage MarkA to MarkB but it is not the case of the plaintiff that there is absolutely no other entrance to his house but for the said passage. Thus any grave and immediate injury being caused to the rights of the plaintiff, have not been brought forth which calls for grant of injunction in his favour at this stage.
It is not the case of the plaintiff that it is absolutely impossible for him to enter his premises rather substance of his relief is that it will be more convenient for him to enter his premises if the locks be removed by the defendants. It is again repeated for the sake of emphasis that unless and until evidence is led by the parties, it cannot be determined whether the passage in question is a common passage or falls in exclusive share of the defendants and that thus they have the right to lock the same.
At this stage, it is also pertinent to mention that the main relief sought in the present case as well as the relief sought in the present interim application under Order XXXIX Rule 1 and 2 CPC are the same. It is a settled law that an interim injunction should not be granted if it amounts to decreeing the suit of the applicant.
Anurag Gopal vs. Ashish Gopal & Ors. 10/11 Suit No. 402/2011 It is categorically laid down in the case of Kashmeri Lal vs. University Delhi 1973 Rajdhani Law Reporter (Note). 58. It is also laid down in the case of Mohinder Singh vs. Dharamvir Radhesham 1981 Rajdhani Law Reporter (Note) 56, that if the relief claimed in the application for temporary injunction is the same as the relief in the suit then it should not be granted since it shall amounts to decreeing the suit even without trial.
8. In view of my aforesaid discussions, I see no merits in the present application. Accordingly, the present application under Order XXXIX Rule 1 and 2 CPC is dismissed. Nothing stated herein shall tantamount to an expression of opinion on the merits of the case.
Pronounced in the open court today on 21.01.2012 (SHEFALI SHARMA) CIVIL JUDGE (WEST) THC, DELHI/ 21.01.2012 Anurag Gopal vs. Ashish Gopal & Ors. 11/11