Delhi High Court
Smt. Pramila Devi vs Sh. Krishan Swarup And Anr. on 4 January, 2011
Author: S.Ravindra Bhat
Bench: S. Ravindra Bhat
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 04.01.2011
+ CS(OS) 2361/2009
SMT. PRAMILA DEVI ..... Plaintiff
Through : Sh. K. Venkatramani, Sr. Advocate with Sh. Piyush
Sharma, Advocate.
versus
SH. KRISHAN SWARUP AND ANR. ..... Defendants
Through : Sh. S.K. Rungta, Advocate, for Defendant No.1.
CORAM:
MR. JUSTICE S. RAVINDRA BHAT
1. Whether the Reporters of local papers Yes.
may be allowed to see the judgment?
2. To be referred to Reporter or not? Yes.
3. Whether the judgment should be Yes.
reported in the Digest?
MR. JUSTICE S.RAVINDRA BHAT
%
I.A. Nos. 16070/2009 (Exemption) & 15072/2010 (Exemption)
Allowed, subject to the applicants filing the relevant originals or certified copies, within six weeks.
I.A. Nos. 16071/2009 (Under Order 39 Rule 1 & 2) & 15071/2010 (Under Order 39 Rule 1 & 2)
1. This order will dispose of two pending applications in which an ad interim injunction to restrain the defendants from taking steps to disturb the possession or interfere with possession of the plaintiff in respect of the suit property, being a 550 sq. years plot, part of Khasra No. 269, situated at Village Gokalpur, near Loni Border, Elaqua Shahdara, Delhi-110 094, is sought for, by the plaintiff.
2. The brief averments in the suit and corresponding allegations in the pending applications are that the plaintiff purchased the suit property through a Sale deed dated 03.05.2005 (which was subsequently registered) from the second defendant. The plaintiff contends that the said CS(O S) 2411/2010, I.A. N os. 160 05/20 10 & 16006 /2010 I.A. Nos. 16071/2009 & 15071/2010 in CS (OS) 2361/2009 Page 1 vendor, i.e. the second defendant had purchased the property from Sh. Dharam Singh, on 01.03.2004. The plaintiff relies upon a Power of Attorney, Will and Receipt dated 01.03.2004, issued in favor of the said second defendant, for this purpose. It is further contended that Sh. Dharam Singh, in turn, had acquired the property through a Power of Attorney transaction from Sh. Ram Chander on 11.03.1982. The further suit contention is that Sh. Dharam Singh had filed a suit for possession, injunction etc., in 1991 before the competent Court, against the first defendant. The first defendant had apparently been proceeded ex-parte and the suit was, consequently, decreed, on 29.09.2003.
3. The plaintiff submits that while she was in peaceful possession of the suit property, the first defendant threatened and sought to dispossess her, through various actions held-out and committed, on 15.06.2009 and 22.06.2009. The plaintiff claims to have met Sh. Dharam Singh, who then informed her that the first defendant was his brother and also disclosed the previous suit and the further circumstance that the decree on 29.09.2003 had been recalled by an order of 05.05.2007. The plaintiff also states that the Civil Court had directed restoration of possession in respect of which the first defendant had filed an execution application, which was scheduled for 11.12.2009. She claims to be bonafide purchaser of the suit property and in peaceful possession of it. It is submitted that the threats held-out by the first defendant are illegal and unjustified and that the plaintiff ought to be protected with an appropriate temporary injunction.
4. The plaintiff, in addition, to reiterating the averments in the suit and the allegations also contended that the documentary material on record clearly support her claim to be in peaceful possession and enjoyment of the property and that the Court ought to ex-debito justitae grant ad- interim injunctive relief to honour and protect such possession. The plaintiff, in this regard, relies upon the copies of the Sale deed, executed in her favor on 03.05.2005, which was duly registered; it is pointed-out that the original owner, Sh. Dharam Singh was a party to this deed, being a witness. Similarly, the copy of the General Power of Attorney dated 11.03.1982 in favor of Sh. Dharam Singh, by Ram Chander; copy of the agreement of the same date between Sh. Ram Chander and Sh. Dharam Singh ; copy of Will by Sh. Dharam Singh, nominating the plaintiff's vendor, on 01.03.2004; copy of the agreement to sell between Sh. Dharam Singh and the second defendant and the plaintiff; copy of receipt and the copy of Possession Letter, handing-over possession of the suit property to Smt. Pushpa Devi have all been relied upon. It is CS(O S) 2411/2010, I.A. N os. 160 05/20 10 & 16006 /2010 I.A. Nos. 16071/2009 & 15071/2010 in CS (OS) 2361/2009 Page 2 contended that the mere fact that the previous decree, of the Civil Court has been set-aside does not automatically result in justification of the first defendant's claim to the property. It is submitted that Sh. Dharam Singh, his brother was the lawful and true owner of the property and had conveyed title as well as possession to the plaintiff, which should be respected and protected by the Court.
5. The first defendant, in his written statement, submits that the suit is not maintainable. It is contended that Sh. Dharam Singh, his brother had instituted a suit in 1991 against him and that during its pendency, he was falsely implicated in a murder, as a result of which he was in jail. The first defendant submits that during that period - i.e. when he was in jail, Sh. Dharam Singh's suit could not be defended appropriately and consequently he was set-down ex-parte and the suit was decreed. In these circumstances, immediately after he (i.e. the first defendant) was released, an application for setting-aside the ex-parte decree was made, which was, by an elaborate and detailed judgment, allowed on 05.05.2007. In the meanwhile, submits the first defendant, Sh. Dharam Singh had, on the strength of that ex-parte decree, managed to secure possession of the suit property, in execution proceedings. The first defendant, therefore, had moved the executing Court, for restitution of possession; that application was allowed on 11.12.2007, and later confirmed while rejecting the review application filed against it, on 31.03.2008. It is further contended that the plaintiff and Sh. Dharam Singh had moved objections under Order XXI, Rule 97, CPC, which was rejected. That order dated 12.03.2010 was sought to be carried in appeal, being FAO 234/2010. However, that appeal was withdrawn. It is submitted that despite the restitution order and the subsequent development that the Suit, (on the basis of which Sh. Dharam Singh had sought possession), had been restored and in effect, there was no decree, possession was never restored to the first defendant. Having regard to these circumstances, it is contended that the suit, as well as the application for ad interim injunction are not maintainable.
6. The first defendant, besides reiterating the averments in the written statement and the reply, also contends, in addition that the documentary materials and evidence on the record nowhere substantiate the plaintiff's submission of being in continuous and peaceful possession of the property. It is pointed-out that apart from the registered Sale Deed of 2005, none of the documents relied upon can be characterized as those pertaining to title, much less having any manner of possession or unimpeachable prima facie evidence of possession. Having regard to all CS(O S) 2411/2010, I.A. N os. 160 05/20 10 & 16006 /2010 I.A. Nos. 16071/2009 & 15071/2010 in CS (OS) 2361/2009 Page 3 these circumstances, says the first defendant, this Court should not exercise its equitable relief and grant an injunction which would, in effect, be stalling, if not entirely setting-aside the restitution order of 31.03.2008.
7. The preceding discussion would reveal that the plaintiff claims to be lawful owner and in peaceful possession of the suit property, which she had purchased on 03.05.2005 from the second defendant, i.e. Smt. Pushpa Devi. According to the said averments, Smt. Pushpa Devi purchased it from Sh. Dharam Singh on 01.03.2004. The documents relied upon are the copies of unregistered Power of Attorney; copy of Will and a Receipt. Sh. Dharam Singh, in turn, is stated to have acquired the property through a Power of Attorney transaction dated 11.03.1982; the copy of the said Power of Attorney and the agreement to sell, allegedly executed by Sh. Ram Chander have been filed. Apart from these, there is no other document or material, evidencing the plaintiff's independent possession from 2005 till date of inception of the suit.
8. In order to secure equitable injunctive relief, especially of the kind claimed in this case, a litigant should be able to prima facie substantiate lawful possession of the property or the subject matter. As discussed earlier, there is no material aside from the copy of the Sale Deed, which is a registered document, and other so-called title documents, showing the plaintiff's lawful possession. No contemporaneous material in the form of Municipal Tax Receipts, mutation or municipal entries, bills etc., which would prima facie establish that the plaintiff was given possession and continued to enjoy it from 2005 till date, are produced.
9. Another aspect, rather an important one - is that concededly, Sh. Dharam Singh had instituted a suit against the first defendant, his brother. An ex-parte decree was made in 2003. The first defendant, at that stage, was apparently implicated for a murder. Later, after his release, he moved an application for the recall of the judgment and decree; the same was granted on 05.05.2007. In the meanwhile, Sh. Dharam Singh had managed to get the ex-parte decree executed. With the order of 05.05.2007, Sh. Dharam Singh's possession or entitlement to a decree became subject to proof. Aside from the intervening fact that the ex-parte decree was made, prima facie there is no material to say that Sh. Dharam Singh was entitled to possession. To make matters worse for the plaintiff, the first defendant moved the Court for restitution under Section 144, CPC. By a detailed order of 10.12.2007; that restitution application was allowed. The plaintiff claims to have become aware of these circumstances subsequently and appears to have moved the trial Court; Sh. Dharam Singh's review petition against that order was rejected CS(O S) 2411/2010, I.A. N os. 160 05/20 10 & 16006 /2010 I.A. Nos. 16071/2009 & 15071/2010 in CS (OS) 2361/2009 Page 4 on 31.03.2008.
10. The plaintiff appears to have also filed an application under Order XXI Rule 97 to modify the order dated 10.12.2007, granting restitution; this application, however, was rejected on 12.03.2010. The plaintiff's appeal was dismissed as withdrawn on 27.10.2010.
11. As discussed earlier, while the Court, in the exercise of its discretionary and equitable jurisdiction, is entitled to grant relief in a case deserving, equally the equities have to be considered, on an overall weightage of all the factors. The plaintiff's case of having been put into possession of the property is prima facie not a strong one. To compound this is the circumstance that the suit - in which Sh. Dharam Singh claimed to be in possession and had sought injunctive relief against the first defendant, and which had been initially decreed - now stands restored; the only rationale for granting possession to the said Sh. Dharam Singh was the ex-parte decree of 2005. That decree has now been set-aside. In these peculiar circumstances, the trial Court ordered restitution on 11.12.2007, and confirmed it, on 31.03.2008. The plaintiff's application under Order XXI Rule 97 was rejected on 12.03.2010. On an overall conspectus of the facts, granting an order of status quo or injunction would, in these circumstances, amount to a Court- sanctioned violation of a binding restitutionary order. It is not as if the plaintiff's claim for possession is backed by a strong prima facie case. As observed previously, the materials on record do not substantiate - prima facie - that such possession was given to her and that she has been continuously enjoying it.
12. In view of the above observations, this Court is of the opinion that the plaintiff's applications for preserving the status quo or granting an ad-interim injunction would really amount to staying the proceeding in execution taken-out by the first defendant, to give effect to the restitution order of 11.12.2007.
11. In view of these developments, I.A. Nos. 16071/2009 and 15071/2010 are rejected.
CS (OS) 2361/2009 List on 3rd May, 2011 for further proceedings before the Court as per Roster.
S. RAVINDRA BHAT
(JUDGE)
JANUARY 04 , 2011
CS(O S) 2411/2010, I.A. N os. 160 05/20 10 & 16006 /2010
I.A. Nos. 16071/2009 & 15071/2010 in CS (OS) 2361/2009 Page 5