Delhi District Court
Sh. Rakesh Gulati vs Smt. Sunita on 26 November, 2015
Suit No. 320/14
IN THE COURT OF MS. SHEFALI SHARMA
CIVIL JUDGE (NORTH): ROHINI COURTS: DELHI
Suit No.320/14
Sh. Rakesh Gulati
........Plaintiff
Versus
Smt. Sunita
....Defendant
Order:
Vide this order, I shall dispose of an application under Order
XXXIX Rule 1 and 2 CPC filed on behalf of the plaintiff against the
defendant. The brief facts for the effectual disposal of the instant application
are as follows:
1.It is the case of the plaintiff that he is the owner and in possession of the suit property bearing no. A41, 1 st Floor, DDA Slums Flats, Jahangir Puri, Delhi33 and is residing in the suit property since April, 2014. That the suit property is a DDA Janta Flats which was earlier occupied by one Sh. Tarsem Lal. That Sh. Tarsem Lal sold the suit property to the plaintiff for a sum of Rs. 3 lakh and then left Delhi for settling in Punjab. It is categorically mentioned by the plaintiff in para 5 of Sh. Rakesh Gulati Vs. Smt. Sunita 1/8 Suit No. 320/14 the plaint that no written documents regarding the said sale transactions was prepared. That the plaintiff was facing problems in getting installed the electricity meter in his name after purchase and shifting in the suit property and met the defendant who is running a chemist shop to help him. But the defendant got electricity meter installed in her name instead, and procured certain documents from the plaintiff. That the defendant's now threatening the plaintiff to dispossess him from the suit property. Hence the present case for permanent, mandatory injunction and declaration.
2. Vide this instant application it is prayed that defendants be restrained from dispossessing the plaintiff from the suit property without due process of law till the pendency of the case.
3. In support of of his contention the plaintiff has filed various documents viz. Photographs of suit property and copy of Adhar card.
4. Defendant vide a separate WS has completely denied the avernments in the plaint and stated that the suit is not maintainable. That actually Sh. Tarsem Lal had sold the suit property to the defendant vide sale documents viz. GPA, agreement to sell, affidavit, receipt etc. dated 25.02.2013. That plaintiff is merely the tenant of the defendant and has concocted a completely false and fabricated story. Plaintiff entered into the rent agreement dated 05.052014 and duly notary attested, the rent of the property is 6,000/ per month which is not tendered by the plaintiff since he Sh. Rakesh Gulati Vs. Smt. Sunita 2/8 Suit No. 320/14 is tenant under the defendant.
That the defendants have already terminated the tenancy of the plaintiff vide a legal notice dated 10.11.2014 but despite that the plaintiff has neither vacated the suit property nor paid the arrears of rent. That the plaintiff has completely taken a contradictory stand in the present case claiming himself to be the owner of the suit property whereas in another case before the court of Sh. Sumit Dass, Ld. SCJ bearing CS No: 246/14. The plaintiff has shown himself as a tenant under Sh. Tarsem Lal. That the plaintiff has not come to the court with clean hands. That the application is liable to be rejected.
5. In support of her contention the defendant has filed a various documents viz. Copy of agreement to sell, will, GPA, affidavit etc. dated 25.02.2013 executed by Sh. Tarsem Lal in favour of the defendant, rent agreement executed between the plaintiff and the defendant dated 05.05.2014, police identification report of the tenant i.e. allegedly plaintiff herein and copy of the plaint in connected suit for permanent injunction filed by plaintiff against the defendant before the court of Sh. Sumit Dass, Ld. SCJ etc. I have heard the arguments at length by counsels for both parties and gone through the material available on record.
6. It is a settled law that a party is entitled to an order of Sh. Rakesh Gulati Vs. Smt. Sunita 3/8 Suit No. 320/14 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 party raises a triable issue which needs investigation, consideration and adjudication.
The party is also to establish that balance of convenience lies in his favour. Balance of convenience connotes comparative mischief likely to be cause to either party in case of grant or refusal of relief of injunction. The party 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 party has to satisfy the court that he has acted bonafidely.
7. In the present case, it is the case of the plaintiff that he is the owner and in possession of the suit property bearing no. A41, 1 st Floor, DDA Slums Flats, Jahangir Puri, Delhi33 and is residing in the suit property since April, 2014. That the suit property is a DDA Janta Flats Sh. Rakesh Gulati Vs. Smt. Sunita 4/8 Suit No. 320/14 which was earlier occupied by one Sh. Tarsem Lal. That Sh. Tarsem Lal sold the suit property to the plaintiff for a sum of Rs. 3 lakh and then left Delhi for settling in Punjab. It is categorically mentioned by the plaintiff in para 5 of the plaint that no written documents regarding the said sale transactions was prepared. That the plaintiff was facing problems in getting installed the electricity meter in his name after purchase and shifting in the suit property and met the defendant who is running a chemist shop to help him. But the defendant got electricity meter installed in her name instead, and procured certain documents from the plaintiff. That the defendant's now threatening the plaintiff to dispossess him from the suit property. Hence the present case for permanent, mandatory injunction and declaration.
8. On the other hand, it is case of defendant vide a separate WS has completely denied the avernments in the plaint and stated that the suit is not maintainable. That actually Sh. Tarsem Lal had sold the suit property to the defendant vide sale documents viz. GPA, agreement to sell, affidavit, receipt etc. dated 25.02.2013. That plaintiff is merely the tenant of the defendant and has concocted a completely false and fabricated story. Plaintiff entered into the rent agreement dated 05.052014 and duly notary attested, the rent of the property is 6,000/ per month which is not tendered by the plaintiff since he is tenant under the defendant. That the defendants have already terminated the tenancy of the plaintiff vide Sh. Rakesh Gulati Vs. Smt. Sunita 5/8 Suit No. 320/14 a legal notice dated 10.11.2014 but despite that the plaintiff has neither vacated the suit property nor paid the arrears of rent. That the plaintiff has completely taken a contradictory stand in the present case claiming himself to be the owner of the suit property whereas in another case before the court of Sh. Sumit Dass, Ld. SCJ bearing CS No: 246/14. The plaintiff has shown himself as a tenant under Sh. Tarsem Lal. That the plaintiff has not come to the court with clean hands. That the application is liable to be rejected.
9. Admittedly no documents of the alleged sale between Sh. Tarsem Lal and plaintiff were executed as is specifically mentioned in para 5 of the plaint. On the other hand, defendant claims to have purchased the suit property from the same person Sh. Tarsem Lal vide agreement to sell, GPA, affidavit, receipt etc. dated 25.02.2013, copies of which have been filed by the defendant along with WS. Whether or not the defendant purchased the suit property from Sh. Tarsem Lal or the plaintiff purchased the said property is matter of trial. However, it would be pertinent to mention that Sh. Tarsem Lal has not been madea party, hence the present suit prima facie is bad for nonjoinder of necessary party.
Further interestingly, in a connected matter bearing CS no:246/14 before the court of Sh. Sumit Dass, Ld. SCJ, plaintiff himself has pleaded himself as a tenant of said Sh. Tarsem Lal, specifically in para 3 of the plaint filed in other case. Thus, plaintiff is taken contradictory stands in Sh. Rakesh Gulati Vs. Smt. Sunita 6/8 Suit No. 320/14 one case, he claimed himself to the tenant of Sh. Tarsem Lal but in the present case, he claims to be the owner of the suit property having purchased from Sh. Tarsem Lal. The said material contradictory remains unexplained on behalf of the plaintiff. As stated above, no documents of any alleged sale between the plaintiff and Sh. Tarsem Lal have been filed or even executed. It was the contention of the ld counsel for the plaintiff that since it was DDA Janta Flat sale documents could not have been executed. Even if that be so, the plaintiff claims to have paid a sum of Rs. 3 lakh as sale consideration amount and no supporting document regarding the payment viz. any receipt or how and when by what mode the said payment had been made is filed.
On the other hand, the defendant has claimed that plaintiff is a tenant. In support thereof, defendant has placed on record copy of rent agreement as well as police verification report. Whether or not, the plaintiff is a tenant of defendant in the suit property or has purchased the same from Sh. Tarsem Lal is owner as alleged in the present case, are matter of trial and can be adjudicated after parties have led their respective evidence but prima facie it appears that in view of the sale documents filed by the defendant, the rent agreement, police verification report, the version of the defendant has more weight.
However, it would be pertinent to mention that whatever be the status of the plaintiff in the suit property, is in the possession of the same at Sh. Rakesh Gulati Vs. Smt. Sunita 7/8 Suit No. 320/14 the moment, has been categorically admitted by the defendants.
At this stage, Reliance, in this regard, is placed on the case of Dhaneswar Vs Ghanshyam AIR 1940 ALL 185 wherein it is held that "Order 39 is not exhaustive and apart from it the court has ample power to issue injunction endebito justitiate for protection and security of the subject matter of suit or prevent multiplicity of proceedings". The law has been reiterated by Hon'ble SC in the case of Manohar Vs. Seth Hira Lal AIR 1962 SC 527.
10. In view thereof, plaintiff is directed not to create any further third party interest in any manner in the suit property or alter its structure and at the same time defendants shall not dispossess the plaintiff from the suit property without due process of law till the pendency of the case.
Nothing stated herein shall tantamount to an expression of opinion on the merits of the case.
The application under order 39 rule 1 and 2 CPC disposed off accordingly.
Be relisted for admission denial of documents and framing of issues on 17.01.2016.
Pronounced in the open court today on 26.11.2015.
(SHEFALI SHARMA) CIVIL JUDGE (NORTH) ROHINI, DELHI/ 26.11.2015.
Sh. Rakesh Gulati Vs. Smt. Sunita 8/8