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Delhi District Court

Sh. Leela Ram vs Sh. Salek Ram on 9 September, 2022

  IN THE COURT OF ADDITIONAL DISTRICT JUDGE­02,
       SOUTH DISTRICT, SAKET COURTS COMPLEX,
                    NEW DELHI

Presiding Judge: Sh. Dinesh Kumar

Suit No. 462/2019
Filing No. 2032/2019
CNR No. DLST01­005303­2019
In the matter of

Sh. Leela Ram
S/o. Late Sh. Munge Ram
R/o. H.No. 11, Ghoda Mohalla,
Village Aya Nagar,
Delhi­110047
                                                        ................Plaintiff
                                          Versus
Sh. Salek Ram
S/o. Hari Chand
R/o. 43, Dhakwala, Dankaur,
Gautam Budh Nagar
U.P. 20321
                                                        ............Defendant

  Date of Hearing the arguments                         : 22.08.2022
  Date of pronouncement of the order                    : 09.09.2022




  CS DJ No. 462/2019
  Sh. Leela Ram Vs. Sh. Salek Ram
  Page 1 of 17
                                    Dinesh Kumar/ADJ­02/South/Saket/ND/09.09.2022
  APPLICATION UNDER ORDER XXXIX RULES 1 & 2, R/W
      S. 151, THE CPC ON BEHALF OF THE PLAINTIFF

ORDER

1. Vide this order I shall dispose of an application under Order XXXIX Rule 1 and 2 CPC filed by the plaintiff. The brief facts of the case as per the plaint are as under:­ 1.1. The defendant is brother in law of the plaintiff. The plaintiff is the owner of the land bearing 3 bighas and 6 biswas comprising khasra no. 1659,1660,1667 and 1674 situated in Revenue Estate of village Aya Nagar, New Delhi out of which the suit property i.e. built up property no. 11 measuring 27x110, consisting of one hall and one workshop (Honda workshop) with covered gallery.

1.2. The said property belong to gram sabha Aya Nagar. It had filed a suit for ejectment under section 84(b) of Delhi Land Reform Act, 1952, bearing no. 382/58 titled as Gram Sabha Aya Nagar Vs. Jhandu, Munni Dhanni, Munga, Sons of Haria on 27/06/1958, seeking ejectment of predecessor in interest of the CS DJ No. 462/2019 Sh. Leela Ram Vs. Sh. Salek Ram Page 2 of 17 Dinesh Kumar/ADJ­02/South/Saket/ND/09.09.2022 petitioner from the land bearing 3 bighas and 6 biswas comprising Khasra no. 1659,1660,1667 and 1674 situated in Revenue Estate of village Aya Nagar allegation herein that the said land vested in Gram Sabha. The said matter was dismissed by Sh. Narsingh Kishore, Assistant Collector Grade I, Delhi on 31.07.1961. Against the said order the Gram Sabha Aya Nagar had filed an appeal which was dismissed by additional collector on 19.05.1969, the order dated 31.07.1961 attained finality and the entries pertaining khasra no. 1659(0­7), 1660(0­6), 1667(2­9) and 1674(0­4) total measuring 3 bighas and 6 biswas situated in the revenue state of Village Aya Nagar, Delhi absolutely belong to the plaintiff or his predecessor in interest according to their respective shares. Father of the plaintiff alongwith co­sharer had also filed a Writ Petition which was allowed by Hon'ble Delhi High Court. 1.3. Since the plaintiff is absolute owner of the suit property, therefore, he let out the said property to M/s. Uday Honda (a unit of Om Sons Project Pvt. Ltd.) Vide lease deed dated 01.06.2013 for an amount of Rs.

Sh. Leela Ram Vs. Sh. Salek Ram Page 3 of 17 Dinesh Kumar/ADJ­02/South/Saket/ND/09.09.2022 55,000/­ per month for the first year and it was time to time increased to 6th year for Rs.77,140/­. The tenant has taken over the possession of the suit premises from 01.06.2013 and the initial period of lease was agreed to be for 6 years commencing from 01.06.2013 till 31.05.2019 which may be extended for a period of 3 years with mutual consent of the parties to the agreement.

1.4. The defendant being brother in law of the plaintiff was taking care of the suit property as the plaintiff was working with the Indian Force. The defendant took the benefit of humble nature of the plaintiff and with malafide intention got signatures of the plaintiff on certain documents and converted into power of attorney to manage his properties including the suit property. Thereafter, the defendant converted the said documents into General Power of Attorney, Will, Possession letter and agreement to sell with respect to the suit property.

1.5. On the basis of the aforesaid documents, the defendant got executed the lease agreement with the CS DJ No. 462/2019 Sh. Leela Ram Vs. Sh. Salek Ram Page 4 of 17 Dinesh Kumar/ADJ­02/South/Saket/ND/09.09.2022 previous tenant of the plaintiff pretending to be attorney of the plaintiff. After execution of the said lease agreement, the defendant started receiving the monthly rent from the said tenant. Some of the rent was given by the defendant to the plaintiff and after sometime he stopped giving the rent to the plaintiff. 1.6. The plaintiff came to know about the said documents. Thereafter, the plaintiff canceled the general power of attorney, Will Affidavit, possession letter, agreement to sell on 20.06.2018 and informed the defendant about the same. In addition, the plaintiff, vide public notice, informed the general public about the cancellation of the aforesaid documents through his advocate, Shivankar Mehrotra by publication in newspaper "Indian Express" and "Jan Satta" dated 08.12.2018.

1.7. On 26.11.2018, the plaintiff again cancelled the GPA and agreement to sell. The plaintiff further executed a Will in favour of his son Gaurav which was duly registered with the office of Sub­Registrar filed vide CS DJ No. 462/2019 Sh. Leela Ram Vs. Sh. Salek Ram Page 5 of 17 Dinesh Kumar/ADJ­02/South/Saket/ND/09.09.2022 registration no. 70, book no. 03, vol. No. 185 pages from 160 to 190 dated 24.01.2019.

1.8. After knowledge of the frivolous documents prepared by the defendant, the plaintiff informed the tenant and executed an extension/renewal of lease deed on 21.05.2019, with the said tenant with respect of the suit property and also executed a fresh lease deed on same day for addition of the area i.e. back portion. The plaintiff also informed the Om Sons Projects Pvt. Ltd. that he had already canceled the GPA in favour of the defendant. After considering the documents of the plaintiff, M/s. Udya Honda started paying the rent of the premises in favour of the plaintiff.

1.9. Since the defendant in grab of the above­ mentioned frivolous documents received rent of the suit property from the tenant of the plaintiff, from the month of May 2017 to November 2018 @ Rs.65,000/­ approximately after deduction of TDS. The plaintiff has been demanding the receivable rent from the defendant but the defendant had been promising to pay the rent amount but till date failed to do so. The defendant is CS DJ No. 462/2019 Sh. Leela Ram Vs. Sh. Salek Ram Page 6 of 17 Dinesh Kumar/ADJ­02/South/Saket/ND/09.09.2022 liable to pay an amount of Rs.11,70,000/­ to the plaintiff. Therefore, he is liable to pay interest @ 18% p.a on the due amount. Despite of cancellation of the documents above­mentioned documents, defendant started harassing the plaintiff and tried to enter in the suit premises, therefore, the plaintiff had no other option except to lodge a complaint against the defendant and his sons to the ACP and DCP, Sub Division Mehrauli, New Delhi which were duly received on 21.06.2019. 1.10. The plaintiff has a apprehension that the defendant might dispossess the plaintiff and he might misuse the documents which have already been cancelled by the plaintiff. Hence the present suit has been filed with the following prayers:

(a) "Declare the GPA, Will, Possession Letter, Agreement to Sell, Affidavit etc. with respect to the suit premises as null and void;

(b) "restrained permanently for sale/transfer of the suit property by using the above­mentioned documents and also be restrained from entering the suit property;

Sh. Leela Ram Vs. Sh. Salek Ram Page 7 of 17 Dinesh Kumar/ADJ­02/South/Saket/ND/09.09.2022

(c) "recovery of rent receivable by the defendant may also passed for an amount of Rs. 11,70,000/­ alongwith interest @ 18% pa till the realisation of decreetal amount;

(d) "cost of the suit kindly be passed in favour of the plaintiff and against the defendant;"

2. Along with the plaint, plaintiff also filed an application U/o XXXIX Rule 1 & 2, CPC with a prayer for an interim injunction thereby restraining the defendant, his agents, servants or any other persons acting on his behalf from entering into the suit property and to deal with the suit premises by using the false and frivolous documents for the sell/transfer of the suit property, till the pendency of the present suit. The defendant has appeared and filed the written statement alongwith reply to the application. The defendant has denied the allegations made by the plaintiff. It is stated in the written statement as under:

2.1. The suit is not maintainable in its present form as the suit property is not properly described in the plaint.

Therefore, the suit is liable to be dismissed/rejected. The plaintiff has not approached the court with clean hands and he has suppressed the material facts.

Sh. Leela Ram Vs. Sh. Salek Ram Page 8 of 17 Dinesh Kumar/ADJ­02/South/Saket/ND/09.09.2022 2.2. It is further stated in the WS that the plaintiff has no locus standi to file the present suit as plaintiff has already sold all his right, title, privity, concern and interest in the suit property by executing the requisite transferable documents like agreement to sell, affidavit, possession letter, Will, Receipt and GPA on 18.05.2017 in favour of defendant. The plaintiff has received a total sale consideration of Rs.24,50,000/­ from the defendant in the presence of two witnesses including Mr. Gaurav who is son of the plaintiff. The plaintiff has made false allegations in the plaint.

2.3. The electricity meter in the suit property has also been changed in the name of the defendant after obtaining an NOC from the plaintiff. The defendant has also deposited self assessment property tax with the MCD. It is plaintiff who has become greedy after increase in the prices of the property in the locality. The plaintiff has threatened the defendant either to pay the extra money or to ask the tenant to pay the rent directly to him. The defendant has also made a complaint to the police. The tenant was regularly making payment of the CS DJ No. 462/2019 Sh. Leela Ram Vs. Sh. Salek Ram Page 9 of 17 Dinesh Kumar/ADJ­02/South/Saket/ND/09.09.2022 rent to the defendant till October 2018. It has stopped making payment of the rent to the defendant since November 2018. Therefore, the defendant terminated the tenancy by issuing a notice which was duly received by the tenant.

2.4. On 31.07.2019, the officials of the electricity department illegally disconnected the electricity connection and removed the electricity meter from the suit property due to non payment of the bills which was supposed to be paid by the tenant. The defendant himself paid the bills and apply for reconnection. On 11.09.2019, the officials of the BSES visited the suit premises for reinstalling the meter as well as connection. However, the plaintiff and his son and other associates of the plaintiff did not allow them to install the meter. The defendant called the PCR. Even thereafter, they could not install the meter and left the spot. Defendant made a complaint to the police. On 26.09.2019, the officials of the BSES again came at the suit property for installing the electricity meter. The plaintiff, his son and some other person came at the spot and they had beaten Mr. CS DJ No. 462/2019 Sh. Leela Ram Vs. Sh. Salek Ram Page 10 of 17 Dinesh Kumar/ADJ­02/South/Saket/ND/09.09.2022 Anil Kumar Nagar, son of the defendant. Defendant had given medical complaint to the police. Finally, electricity meter was installed.

2.5. On 04.10.2019, the defendant had filed a civil suit seeking recovery of possession of the suit property and other relief from the tenant. The plaintiff has filed the present suit with in collusion with the tenant with illegal motive to accede to his illegal demand. Hence, it is prayed that the suit may be dismissed. It is also prayed that the application under Order XXXIX Rule 1 and 2 CPC may also be dismissed.

3. I have heard the submissions of the parties and carefully perused the material on record. The parties have argued similar to the stands taken by them in their pleadings.

4. It is settled position of law that while passing an order of temporary injunction under Order XXXIX Rules 1 and 2 CPC, the Court is to consider (i) whether the plaintiff has a prima facie case; (ii) whether balance of convenience is in favour of the plaintiff; and (iii) whether the plaintiff will suffer irreparable loss and injury if an order of injunction was not passed.

Sh. Leela Ram Vs. Sh. Salek Ram Page 11 of 17 Dinesh Kumar/ADJ­02/South/Saket/ND/09.09.2022

5. Prima facie case means that the plaintiff has a case which is not liable to be thrown at the out­set but which requires to be given consideration. Prima facie case does not mean that the plaintiff should have a foolproof case which will in all probability succeed at the trial. Prima facie case means that the contentions which the plaintiff is raising merit consideration and are not liable to be rejected summarily.

6. Hon'ble Supreme Court of India in M/s Best Sellers Retail (I) P.Ltd vs M/s Aditya Birla Nuvo Ltd.& Ors, in Civil Appeal nos. 4313­4314 of 2012, decided on 8 May, 2012, has held as under:

"14. Yet, the settled principle of law is that even where prima facie case is in favour of the plaintiff, the Court will refuse temporary injunction if the injury suffered by the plaintiff on account of refusal of temporary injunction was not irreparable. In Dalpat Kumar & Anr. v. Prahlad Singh & Ors. [(1992) 1 SCC 719] this Court held:

"Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that non­interference by the Court would result in "irreparable injury" to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the CS DJ No. 462/2019 Sh. Leela Ram Vs. Sh. Salek Ram Page 12 of 17 Dinesh Kumar/ADJ­02/South/Saket/ND/09.09.2022 consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely, one that cannot be adequately compensated by way of damages."

7. In Anwar Elahi vs Vinod Misra and Anr. 60 (1995) DLT 752, Hon'ble High Court of Delhi has discussed the meaning of the term 'balance of convenience'. It has been held:

"(11) For the grant of a temporary injunction, the plaintiff has to prove that besides prima facie case the balance of convenience also lies in his favor and in case the injunction is not granted, he will be suffering an irreparable loss and injury. Balance of convenience means that comparative mischief or inconvenience which is likely to issue from withholding the injunction will be greater than that which is likely to arise from granting it. In applying this principle, the Court has to weigh the amount of substantial mischief that is likely to be done to the applicant if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted."

8. Perusal of the record in the present case would prima facie show that the plaintiff has claimed the ownership of the suit property. The defendant, however, has claimed that he CS DJ No. 462/2019 Sh. Leela Ram Vs. Sh. Salek Ram Page 13 of 17 Dinesh Kumar/ADJ­02/South/Saket/ND/09.09.2022 has purchased the suit property from the plaintiff on 18.05.2017 through one agreement to sell, affidavit, possession letter, Will, receipt and GPA etc. Thus, the defendant has not challenged the previous ownership of the plaintiff in relation to the suit property. Admittedly, there is no registered sale deed in favour of the defendant executed by the plaintiff. Hon'ble Supreme Court of India in case title Suraj Lamp & Industries Pvt. Ltd. Vs. State of Haryana & Anr., Special Leave Petition (C) 13917/2009 decided on 11.10.2011 has held that immovable property can be legally and lawfully transferred / conveyed only by a registered deed of conveyance. Transaction in the nature of "GPA Sales" or SA/GPA/Will transfers" do not convey title and do not amount to transfer, nor can they be recognized as valid mode of transfer of immovable property. It is directed in the said judgment that the Courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither conveyed title nor create any interest in an immovable property. They can not be recognized as deed of title, except to the limited extent of Section 53 A of the TP Act. In the present case, the defendant has not shown any CS DJ No. 462/2019 Sh. Leela Ram Vs. Sh. Salek Ram Page 14 of 17 Dinesh Kumar/ADJ­02/South/Saket/ND/09.09.2022 registered deed of conveyance in his favour. None of the documents relied upon by the defendant in relation to the transfer of the suit property in favour of the defendant is a registered document. Therefore, the defendant can also not take the defence available under Section 53 A of TP Act. The defendant has claimed that he had made a payment of Rs.24,50,000/­ to the plaintiff to purchase the suit property. The plaintiff has claimed that he has not received any consideration amount from the defendant. The defendant has filed a copy of receipt in which payment of Rs.20,00,000/­ has been shown to be made in cash in different installments. Therefore, prima facie, it is also not shown by the defendant that he had made the payment of consideration amount to the plaintiff. The cash payment has to be proved by way of leading evidence by the defendant. However, at this stage, the plaintiff has prima­facie shown a case in his favour. It has been prima­facie shown that the GPA executed by the plaintiff in favour of the defendant has been canceled by the him. Further, the suit property is shown to be in possession of a tenant. Both the parties have claimed that the suit property was given to the tenant on rent by him. However, CS DJ No. 462/2019 Sh. Leela Ram Vs. Sh. Salek Ram Page 15 of 17 Dinesh Kumar/ADJ­02/South/Saket/ND/09.09.2022 the plaintiff has filed a lease deed dated 21.05.2019 in relation to the suit property stated to be executed between him and the tenant. This document prima­facie show that the tenant is in possession of the suit property as tenant of the plaintiff. In view of the above, the balance of convenience also lies in favour of the plaintiff. It is also shown that an irreparable injury shall be caused to the plaintiff if the defendant is allowed to use the documents in his possession for dealing with the suit property.

9. In view of the discussion hereinabove, the application is allowed to the extent that the defendant, his agents, servants or any other person acting on his behalf is hereby restrained from creating any third party interest using the documents in the possession of the defendant in relation to the suit property. However, as the suit property is stated to be in possession of the tenant and the defendant has claimed that the suit property was given on rent by him to the tenant. However, the plaintiff has prima­facie shown that it had given the suit property on rent to the tenant. The defendant has also stated in his WS that he has also filed a Civil Suit for recovery of possession from the tenant. Therefore, the CS DJ No. 462/2019 Sh. Leela Ram Vs. Sh. Salek Ram Page 16 of 17 Dinesh Kumar/ADJ­02/South/Saket/ND/09.09.2022 defendant is directed not to dispossess the said tenant from the suit property except with the due process of law.

10. The application stands disposed of accordingly. Nothing discussed hereinabove shall tantamount to an expression on the merits of the case.

Pronounced in open Court on this 09th Day of September Digitally signed 2022. by DINESH DINESH KUMAR KUMAR Date:

2022.09.09 16:38:13 +0530 (DINESH KUMAR) ADDL. DISTRICT JUDGE­02, SOUTH, SAKET COURTS, NEW DELHI.

Sh. Leela Ram Vs. Sh. Salek Ram Page 17 of 17 Dinesh Kumar/ADJ­02/South/Saket/ND/09.09.2022