Delhi District Court
R/O S6 vs Shri Narinder Pratap Bhalla on 6 August, 2011
IN THE COURT OF CIVIL JUDGE05 (SOUTH), SAKET
COURTS, NEW DELHI
Presided by: Ms. Manika
Suit No. 327/10
Unique Case ID No. 02406C0441742010
Shri Mahinder Pratap Bhalla
S/o Late Shri Harcharan Das Bhalla
R/o S61, Second Floor, Greater KailashI,
New Delhi110048.
...PLAINTIFF
Versus
1. Shri Narinder Pratap Bhalla
S/o Late Shri Harcharan Das Bhalla
R/o S61, First Floor, Greater KailashI,
New Delhi.110048.
2. Shri Bharat Bhushan Bhalla
S/o Late Shri Harcharan Das Bhalla
Civil Suit No. 327/10 Page 1 of 14
R/o S61, Ground Floor, Greater KailashI,
New Delhi110048.
3. Shri Sajan Narain, Advocate
98, Babar Road, New Delhi110001.
...DEFENDANTS
Date of filing of application : 12.07.2010
Date of reserving the order : 23.07.2011
Date of pronouncement : 06.08.2011
ORDER
1. This order disposes off the application under Order XXXIX Rules 1 and 2 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as the 'C.P.C.') filed on behalf of the plaintiff along with the plaint.
2. By way of the application, the plaintiff has prayed that the defendants, their agents, representatives, and assigns be 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 (hereinafter referred to as the Civil Suit No. 327/10 Page 2 of 14 'suit property') till the final disposal of the suit.
3. In a nutshell, the plaintiff's case is that he has been residing at the second floor of the suit property for the last several years. The defendants No.1 and 2, who reside at the ground floor and first floor respectively of the suit property, are brothers of the plaintiff and the defendant No.3 is the soninlaw of the defendant No.1. The plot upon which the suit property is constructed was the selfacquired property of the plaintiff's father Late Sh. Harcharan Das Bhalla, who died intestate on 04.08.1980 leaving behind the plaintiff (son), defendants No.1 and 2 (sons), Smt. Shyama Pahwa (daughter), Smt. Kamla Ohri (daughter) and Smt. Basant Bhalla (widow) as legal heirs. The mother of the plaintiff Smt. Basant Bhalla expired on 26.01.2007 leaving behind the plaintiff, defendants No.1 and 2 and her abovenamed daughters as legal heirs.
4. The plaintiff has averred that the defendant No.2 had filed a suit for declaration before the Hon'ble High Court of Delhi being suit No. 397/1974, which was disposed off in terms of a family settlement arrived at between the parties. As per the said family settlement, the plaintiff owns 15% interest in the suit property. It is alleged that the defendants have been obstructing the free access of the plaintiff, his Civil Suit No. 327/10 Page 3 of 14 family members, guests and visitors to the second floor of the suit property inter alia by locking the main entrance gate of the suit property, refusing entry to the parttime help, servant, driver, electrician, plumber, carpenter, postman etc. and returning posts/mails addressed to the plaintiff. Claiming to be coowner in possession of the suit property, the plaintiff asserts his right to the peaceful enjoyment of the suit property.
5. The defendants have not filed their written statements till date. The defence of defendant No.3 stands struck off vide order dated 09.02.2011.
6. While the defendants did not file reply to the present application despite ample opportunity, defendant No.3, who was also appearing as counsel for the defendants No.1 and 2, on 30.04.2011, stated that the reply dated 27.04.2011 to the plaintiff's application under Section 151 of the C.P.C. for early hearing and disposal of the injunction application be treated as their reply to the present application. The same runs into 106 pages.
7. The case of the defendants, as argued by Sh. Sajan Narain, defendant No.3 and learned counsel for the defendants No.1 and 2, is Civil Suit No. 327/10 Page 4 of 14 that the plaintiff has no locus standi to maintain the present suit. He pointed out that in the complaint dated 31.03.2004 filed by the plaintiff along with the plaint, the plaintiff has admitted that the defendant No.2 is the sole owner of the suit property. It was contended on behalf of the defendants that since the order dated 17.07.1975 passed by the Hon'ble High Court of Delhi in IA No. 157/1975 in suit No. 397/1974 is under challenge before the Hon'ble High Court of Delhi, the plaintiff has no right in the suit property. It was further contended that the plaintiff has relinquished his rights in the suit property by way of a deed of possession signed by him. He argued that a cosharer cannot legally be restrained by way of an injunction.
8. The following authorities were relied upon on behalf of the defendants:
i) C. Albert Morris v. K. Chandrasekaran & Ors., (2006) 1 SCC 228;
ii) Chandu Lal v. Municipal Corporation of Delhi, AIR 1978 Delhi 174 (FB);
iii) Roop Chand v. Indradevi & Ors., AIR 1997 Madhya Pradesh 200;
iv) Shashi Kapoor v. Subhash Kapoor & Ors., AIR 1972 Delhi 84;
and
v) Indian Bank v. Federation of Indian Bank Employees Union & Anr., decision dated 9th March, 1981 in application No. 82 of Civil Suit No. 327/10 Page 5 of 14 1981 in C.S. No. 13 of 1981.
9. The record is carefully perused and the respective submissions of Sh. Sunil Goyal, Advocate, learned counsel for the plaintiff and Sh. Sajan Narain, Advocate, defendant No.3 and learned counsel for the defendants No.1 and 2, considered.
10. It is trite that before grant of a temporary injunction, the following aspects are to be considered:
(i) A prima facie case is made out by the applicant;
(ii) Refusal of injunction would result in irreparable loss and injury to the applicant, which cannot be adequately compensated by damages; and
(iii) The balance of convenience lies in favour of the applicant.
11. Re: Possession of the plaintiff qua the suit property A. To substantiate his claim of possession qua the second floor of the suit property, the plaintiff has placed on record photocopy of his election identity card issued on 01.01.2008, photocopy of his ration card, photocopy of MTNL landline bill for the months of February and March 2011 in the name of his wife Smt. Swarn Kanta Bhalla, photocopy of electricity bill for the month of Civil Suit No. 327/10 Page 6 of 14 March 2011 in the name of his late father Sh. H.D. Bhalla and photocopies of the passports of his wife and daughter. B. The defendants, on the other hand, have filed original MTNL landline bills for the months of February and March 2011 in the name of Mrs. Indu Bhalla, wife of defendant No.1. The same are in respect of the 'Top' floor of the suit property. C. In his statement dated 30.04.2011 recorded under Order X Rule 2 of the C.P.C., the defendant No.3, who is also counsel for defendants No.1 and 2, admitted that the plaintiff is in possession of the second floor of the suit property, although he qualified the same as being 'litigious' possession. When asked as to whether the plaintiff was in possession of the second floor of the suit property at the time of filing of the present suit, he responded, "I am not aware".
D. Be that as it may, the plaintiff is as on date admittedly in physical possession of the second floor of the suit property.
12. Re: Right of the plaintiff to remain in possession of the suit property A. As per the plaintiff, he owns 15% interest in the suit property as Civil Suit No. 327/10 Page 7 of 14 per the family settlement arrived at in the suit for declaration being No. 397/1974 before the Hon'ble High Court of Delhi. Thus, he claims the right of possession qua the suit property on the basis of ownership. In support, the plaintiff has placed on record photocopy of the said order dated 17.07.1975 and certified copy of the decree dated 17.07.1975.
B. On the other hand, the defendants' case is that the father of the plaintiff and defendants No.1 and 2 namely Sh. Harcharan Das Bhalla had taken repayable loans from the defendants No.1 and 2 and his wife Late Smt. Basant Bhalla for purchase of the suit property and carrying out construction thereon. They have contended that being unable to repay the loans, Sh. Harcharan Das Bhalla had executed a Deed of Composition dated 12.10.1964 relinquishing all his rights and title to the suit property in favour of the defendants No.1 and 2, who became absolute owners thereof, subject to the right of Smt. Basant Bhalla to enjoy a life estate in the suit property. It is averred that the plaintiff was one of the witnesses to the said Deed of Composition. The defendants have further contended that although he had relinquished all his rights and title to the suit Civil Suit No. 327/10 Page 8 of 14 property in favour of the defendants No.1 and 2, Sh. Harcharan Das Bhalla had also executed a Will dated 21.06.1965 stating that the plaintiff shall have no claim or share in the suit property. It is also their case that vide a registered Relinquishment Deed dated 12.01.1995, Smt. Basant Bhalla relinquished all her claims, rights and interests in the suit property in favour of the defendant No.2 and subsequent thereto, vide a registered Relinquishment Deed dated 07.06.2005, the defendant No.2 relinquished all his claims, rights, interests and share in the suit property in favour of the defendant No.1. It is the defendants' case, thus, that the defendant No.1 is the sole owner of the suit property. They have contended that the plaintiff has no locus standi to maintain the present suit as the order dated 17.07.1975 of the Hon'ble High Court of Delhi in IA No. 1570/1975 is under challenge. C. The aforesaid order dated 17.07.1975 of the Hon'ble High Court of Delhi passed in I.A. No. 1570/1975 in Suit No. 397/1974 clearly records that a decree of declaration was passed to the effect inter alia that the plaintiff owns 15% interest in the suit property. The said order prevails over the alleged Deed of Civil Suit No. 327/10 Page 9 of 14 Composition and Will executed by Late Sh. Harcharan Das Bhalla inasmuch as the same was passed on a later date than the ones on which the said documents were allegedly executed. So far as the relinquishment deeds allegedly executed by the defendant No.2 and Late Smt. Basant Bhalla in favour of the defendant No.1 are concerned, the defendants have failed to file the same on record. Moreover, even if their existence and contents, as alleged by the defendants, were to be believed, the said documents would only have the effect of relinquishment of the shares of the defendant No.2 and Late Smt. Basant Bhalla in favour of defendant No.1. The same cannot be said to have the effect of transferring the share of the plaintiff in favour of anyone. The deed allegedly executed by the plaintiff relinquishing his rights in the suit property, referred to on behalf of the defendants during the course of arguments, has also not been filed on record. Further, the challenge, if any, to the order dated 17.07.1975 is without effect inasmuch as it is not the case of the defendants that the said order has been set aside. D. Thus, the plaintiff has prima facie been able to establish that he is in possession of the second floor of the suit property in the Civil Suit No. 327/10 Page 10 of 14 capacity of being a coowner of the suit property.
13. On behalf of the defendants, para 43 of C. Albert Morris v. K. Chandrasekharan (supra) had been relied upon to contend that litigious possession cannot be regarded as lawful possession. The facts of the aforesaid case are distinguishable from those of the instant case. Moreover, the defendants have not shown as to how the plaintiff's possession of the second floor of the suit property can be termed as 'litigious'. Thus, the aforesaid decision does not aid the defendants' case.
14. The defendants have also relied upon Chandu Lal v. Municipal Corporation of Delhi (supra) to contend that a bare licensee qua a property cannot maintain an action for its possession and has only a right to use the property which is only a personal privilege. However, the said decision does not come to their aid since the defendants have not shown that the plaintiff is a mere licensee in respect of the second floor of the suit property.
15. Further, the reliance placed on Roop Chand v. Indra Devi (supra) is also misconceived. In the said case, the plaintiff had filed a suit for partition, which was dismissed by the Trial Court, which had Civil Suit No. 327/10 Page 11 of 14 deemed that there had been a family settlement. However, the Trial Court had granted an injunction in respect of interference in the share of the plaintiff. In appeal, it was held that there is no proof either of partition or family settlement. Thus, it was in the context of interference in the separate portions occupied by coowners, in the absence of a partition or family settlement having been proved, that it was held that no injunction could be granted in favour of one of the cosharers against the other, unless there was a finding that the share of one of the cosharers was either partitioned or made separate by family arrangement. In the instant case, however, the relief prayed for by the plaintiff is not that the defendants be restrained from interfering in the portion under his occupation but that he and his family etc. be allowed free ingress and egress to the said portion. Thus, the aforesaid decision is not applicable in the case at hand.
16. There is no dispute as to the principle laid down in Shashi Kapoor v. Subhash Kapoor & Ors. (supra) to the effect that mere possession is not enough to claim issue of an interim injunction and prima facie lawful possession has got to be established. In the instant case, under paragraph 12, it has already been found that the plaintiff has prima facie been able to establish that he is in possession of the Civil Suit No. 327/10 Page 12 of 14 second floor of the suit property being coowner thereof. Thus, the aforesaid decision also does not come to the rescue of the defendants.
17. The decision in Indian Bank v. Federation of Indian Bank Employees Union (supra) was relied upon on behalf of the defendants to contend that where no schedule of property is filed, no relief can be granted. Firstly, the facts of the said case completely differ from those of the case at hand. Secondly, the principle sought to be urged on behalf of the defendants has not been laid down in the aforesaid case as ratio and, therefore, no reliance can be placed on the aforesaid decision for the purpose proposed on behalf of the defendants.
18. In view of the aforesaid discussion, the plaintiff has been able to establish a prima facie case for grant of an injunction in his favour.
19. In case the relief sought is not granted to the plaintiff, he is likely to suffer irreparable loss for he would be unable to enjoy his property peacefully. Thus, the second condition for grant of an injunction is also satisfied.
20. Further, if the injunction prayed for is granted, the defendants are not likely to be prejudice as much as the plaintiff is likely to be prejudiced if the same is refused. Therefore, the balance of Civil Suit No. 327/10 Page 13 of 14 convenience also lies in favour of the plaintiff.
21. Therefore, the defendants, their agents, representatives and assigns are hereby 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.
22. However, the plaintiff is directed to conclude his evidence within three dates fixed for the purpose, failing which this order shall automatically stand vacated.
23. Nothing hereinabove shall tantamount to an expression of opinion on the merits of the case.
24. The application stands disposed off accordingly. Announced in open Court on 06.08.2011 (MANIKA) Civil Judge05 (South), New Delhi 06.08.2011 Civil Suit No. 327/10 Page 14 of 14