Delhi District Court
JsccCumAscjCumGj (Nw) : District ... vs Dr. Trilok Chand Sharma & Anr on 24 July, 2012
IN THE COURT OF SH. SANJAY JINDAL
JSCCcumASCJcumGJ (NW) : DISTRICT COURTS
ROHINI : DELHI
Unique ID No.
MCA No. 3/11
Yetender Kumar Sharma & Ors. .............Appellants
Versus
Dr. Trilok Chand Sharma & Anr. .............Respondents
O R D E R
24.07.2012 1 The present appeal has been preferred by the appellants against the order dated 03.05.2011 passed by the Ld. Civil Judge, Tis Hazari, Delhi in Civil Suit No. 741/02 titled as 'Yetender Kumar Sharma & Ors. Vs. Dr. Trilok Chand Sharma & Anr.' whereby dismissing the application U/o 39 R 1 & 2 CPC filed by the appellants.
2 Brief facts, necessary for disposal of the present appeal, are that the appellants filed above mentioned suit for permanent injunction against the respondents with the contentions that Late Sh. Chiranji Lal Sharma was owner of Property No. 830/51, Lekhu Nagar, Trinagar, Delhi35 and during his life time, he executed a registered Will dated 12.01.1970 in favour of his wife Smt. Gulab MCA No. 3/11 Yetender Kumar Sharma & Ors. Vs. Dr. Trilok Chand & Anr. 1/7 Devi and son Sh. Shiv Dutt Sharma. After death of Sh. Chiranji Lal Sharma followed by death of his wife Smt. Gulab Devi, Sh. Shiv Dutt Sharma filed a Probate case and during pendency of the said case, Sh. Shiv Dutt Sharma also expired. Subsequently, one application for impleading him as a party was filed by one of the LR's namely Sh. Vijay Kumar Sharma but the same was not subsequently pressed upon by him. It is alleged that defendant no.1/ respondent no.1 is trying to dispossess the plaintiff from the suit property and to create a third party interest in the same. 3 The defendants/ respondents by way of their WS, took certain preliminary objections regarding maintainability of the suit and contended that Late Sh. Shiv Dutt Sharma was merely a tenant in a portion of the suit property and he manipulated the things during his life time after the death of Sh. Chiranji Lal Sharma. The locus standi of the plaintiffs was also challenged.
4 Vide order dated 03.05.2011, the ld. Trial Court dismissed the application U/o 39 R 1 & 2 CPC with the sole observation that the relief prayed by the plaintiffs in the suit as well as in the application MCA No. 3/11 Yetender Kumar Sharma & Ors. Vs. Dr. Trilok Chand & Anr. 2/7 U/o 39 R 1 & 2 CPC were identical and interim relief could not be granted even if there was a prima facie case in favour of the plaintiffs. The reliance was placed by the Ld. Trial Court on the Judgment of the Hon'ble Supreme Court cited as '(2003) 6 SCC 65'. 5 The present appeal has been filed by the plaintiffs challenging the order dated 03.05.2011 on various grounds as described in para 10 of the appeal. It is contended that the impugned order is not sustainable in the eyes of laws and reliance has been wrongly placed upon the judgment of the Hon'ble Supreme Court in '(2003) 6 SCC 65' titled as 'Union of India & Ors. Vs. Modiluft Ltd.' It is further contended that the interim relief if granted to the plaintiffs/ appellants does not put an end to the suit as the suit is not for mandatory injunction. Certain other contentions were also made.
6 Notice of the appeal was sent to the defendants/respondents which was duly served and appearance was also made by the respondent no.2 Sh. Hitesh Sharma on behalf of both the respondents. Subsequently, some adjournments were also sought on behalf of the respondents for arguments on the appeal but none MCA No. 3/11 Yetender Kumar Sharma & Ors. Vs. Dr. Trilok Chand & Anr. 3/7 has appeared on their behalf since few dates of hearing for arguments.
7 I have heard counsel for the appellants and carefully perused the record.
8 On perusal of record, it reveals that the suit was filed on 28.06.1999 and on that very date, after issuing notice to the defendants, the Ld. Vacation Judge passed ad interim orders for maintaining status quo in respect of the title and possession over the suit property. The defendants were duly served but subsequently they proceeded against ex parte vide order dated 24.08.2004. Subsequently, it seems that the ex parte order against the defendants was set aside and application U/o 39 R 4 CPC was filed for vacating the above mentioned ad interim order dated 28.06.1999. Vide order dated 27.09.2010 the application U/o 39 R 4 CPC was allowed and it was ordered that the said status quo order would operate only till the next date of hearing. The interim order was again continued from time to time and it remained in force till 03.05.2011 when the application U/o 39 R 1 & 2 CPC was ultimately dismissed. 9 On careful perusal of record, it reveals that while passing the MCA No. 3/11 Yetender Kumar Sharma & Ors. Vs. Dr. Trilok Chand & Anr. 4/7 order dated 03.05.2011, the Ld. Trial Court has not given its findings on the issues relating to existence of prima facie case, balance of convenience and chances of irreparable loss and injury. The application U/o 39 R 1 & 2 CPC has been dismissed with the sole reason that the reliefs claimed by the plaintiff in the prayer in the suit and the application U/o 39 R 1 & 2 CPC were identical. It was also observed that it was settled proposition of law that interim relief having the effect of decreeing the suit itself could not be granted even if there was a prima facie case in favour of the plaintiff. Reliance has been placed on the judgment of the Hon'ble Supreme Court in '(2003) 6 SCC 65' titled as 'Union of India & Ors. Vs. Modiluft Ltd.' I have gone through the above mentioned judgment. In the said matter there was dispute regarding collection and deposit of inland air travel tax between the Central Government and the Airline Operator. The Writ Petition filed by the Airline Operator seeking relief by way of a direction to the Government to grant an NOC to relaunch the Writ Petitioner's Airline was declined on the ground that the relief sought by way of interim relief was in the nature of final relief. The said judgment has been passed in respect of the interim relief in the form of mandamus/ mandatory MCA No. 3/11 Yetender Kumar Sharma & Ors. Vs. Dr. Trilok Chand & Anr. 5/7 injunction and the ratio of the said Judgment cannot be applied to the facts of the present case in which relief of permanent injunction has been sought. The question of both the reliefs, in the suit as well as in the interim application being identical, is not of much relevance in a case of permanent injunction. On the contrary, in most of the cases for permanent injunction, there is a bonafide requirement for passing interim reliefs which may be identical to the final relief as there are chances of the final relief becoming infructuous in absence of interim protection. So in such circumstances, I am of the view that the Ld. Trial Court has misguided itself while applying the ratio of the abovesaid judgment to the facts of the present case and dismissing the application U/o 39 R 1 & 2 CPC on the sole ground that the reliefs in the suit and the application are identical.
10 So far as the facts of the present case are concerned, both the parties have made rival contentions regarding their right and title over the suit property and such contentions can only be decided with the help of evidence to be led by the parties at the time of trial. At the same time, it can also not be denied that there is a prima MCA No. 3/11 Yetender Kumar Sharma & Ors. Vs. Dr. Trilok Chand & Anr. 6/7 facie case in favour of the plaintiffs/appellants. The balance of convenience also lies in favour of the plaintiffs/ appellants and there are chances of irreparable loss and injury in case interim protection is not granted. Moreover, the case in hand is pending since 28.06.1999 and the interim order has also remained in force from 28.06.1999 to 03.05.2011. The defendants have not contested the matter seriously before the Ld. Trial Court and before this Court. 11 In view of the above discussions, the appeal is allowed and the impugned order dated 03.05.2011 passed by the Ld. Civil Judge is set aside. The application U/o 39 R 1 & 2 CPC is allowed and the parties are directed to maintain status quo regarding title and possession over the suit property during pendency of the suit.
TCR be sent back with a copy of this order.
Both the parties are directed to appear before the Ld. Trial Court on 06.08.2012 at 2:00 pm. The appeal file be consigned to the Record Room.
Announced in the open Court Today on 24th day of July 2012.
(SANJAY JINDAL) JSCC/ASCJ(NW) : ROHINI DELHI MCA No. 3/11 Yetender Kumar Sharma & Ors. Vs. Dr. Trilok Chand & Anr. 7/7