Order 10

Order Details: COPY OF ORDER
Pdf Text: 15CS SCJ135/24
KRISHAN BIHARI Vs. RAJIV ARORA
30.10.2025
Present: Mr. Atul Kumar Sharma, Ld. Counsel for the plaintiff
through VC.
Mr. Nikhil Verma, Ld. Proxy Counsel for the plaintiff in
person.
Mr. Sanjay Tyagi, Ld. Counsel for the defendant through
VC.
The matter was listed for orders today, however, Ld.
Predecessor has been transferred, therefore, the arguments are to be
heard again.
Fresh arguments on application u/o 39 Rule 1 and 2 CPC
heard.
Put up for order at 4.00 PM.
(Devanshu Sajlan)
CCJ-cum-ARC (Central)
THC/Delhi/30.10.2025
At 4.00 PM
Present : None.
1. Vide this order, I shall dispose off an application u/o 39 Rule 1 &
2 CPC filed by the plaintiff.
2. The plaintiff has filed the present application for restraining the
defendant from dealing with the property bearing No. 2518-2525,
Teliwara, Sadar Bazar, Delhi. The plaintiff claims to be one of the co-
owners of the said property. It has been submitted that the defendant was
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the tenant in the said property whose tenancy was terminated vide legal
notice dated 05.12.2023 by the plaintiff and the defendant was asked to
vacate the property. It has been submitted that the tenant paid the rent in
relation to the suit property regularly up to September, 2023 at the rate of
Rs. 13,300/- per month but thereafter, the defendant stopped paying any
rent to the plaintiff. Accordingly, the present suit has been filed seeking
possession of the suit property, recovery of arrears of rent, mesne profit
and permanent injunction. In the application u/o 39 Rule 1 and 2 CPC,
the plaintiff has claimed injunction to restrain the defendant from
alienating the suit property or for creating any third party interest of any
nature.
3. The defendant has filed the WS in which it has been submitted
that the defendant had a landlord-tenant relationship with a person
namely Sh. Ramesh Chand and the defendant was paying the rent to the
plaintiff due to the existence of a Special Power of Attorney (SPA) dated
07.05.2022 by which Sh. Ramesh Chand had authorized the plaintiff to
collect the rent from the defendant in relation to the suit property. It has
been further submitted that Sh. Ramesh Chand passed away in June,
2023 and hence, the aforesaid SPA ceased to exist. Accordingly, it has
been submitted that upon the deemed termination of the SPA upon the
death of Sh. Ramesh Chand, the plaintiff lost any right to recover rent
from the defendant. It has been submitted that upon the death of Sh.
Ramesh Chand, his daughter sent a legal notice to the defendant
intimating him about the death of her father and for calling of payment
of rent to her in relation to the suit property. It has been further averred
that the defendant has been regularly paying rent to the daughter of the
deceased Sh. Ramesh Chand after his death and rent receipts in this
regard have been annexed along-with the WS. Accordingly, it has been
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submitted that the plaintiff does not have any cause of action to file the
present suit.
4. I have heard the contentions of both the parties and have also gone
through the record.
5. Before proceeding further, it is important to discuss the scope of
Order 39 Rule 1 & 2 CPC. Order 39 Rule 1 & 2 CPC lays down the
guiding principals for temporary injunction, which is to be granted after
considering three essential ingredients:-
1. Prima Facie case established by the plaintiff.
2. Balance of convenience in the favour of plaintiff.
3. The plaintiff shall suffer an irreparable loss which cannot be
compensated in terms of money.
6. I am of the considered view that the plaintiff has failed to establish
a prima facie case in his favour. The plaintiff has not denied the
execution of the SPA dated 07.05.2022 (see page 39 of the documents
annexed with the WS). However, it has been contended by the plaintiff
that the said SPA is irrevocable in nature as is evident from the title of
the said document. Accordingly, it has been argued that the said SPA
continues to be in existence even after the death of Sh. Ramesh Chand.
In this regard, it is pertinent to note that it is a settled position of law that
mere usage of the word ‘irrevocable’ in a POA does not make the POA
irrevocable (M.S. Ananthamurthy v. J. Manjula, Civil Appeal Nos. 3266-
3267 of 2025). In order for a POA to become irrevocable, the essential
ingredients of Section 202 of the Contract Act are required to be fulfilled
i.e., (i) authority to agent for valuable consideration; and (ii) such
valuable consideration was given for the purpose of effectuating a
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security or protecting or securing the interest of the agent. Further, it is a
settled position of law that an agent’s interest in the subject matter of a
POA is determined by whether it secures an existing right, benefit, or
financial stake in the transaction or property. Perusal of the SPA dated
07.05.2022 clearly reveals that no financial stake was created in the
favour of the plaintiff by virtue of the said SPA since it merely
authorized the plaintiff to collect rent from the defendant without giving
any right to the plaintiff to retain the said rent. Further, the said SPA did
not vest the property with the plaintiff and hence, it is evident that the
essential ingredients of Section 202 of the Contract Act are not satisfied
as far as the present SPA is concerned. Therefore, prima facie, the said
SPA dated 07.05.2022 cannot be considered to be an irrevocable SPA and
hence, it can be prima facie concluded that the same stood terminated
upon the death of Sh. Ramesh Chand in June, 2023.
7. For the sake of repetition, it is pertinent to note that the plaintiff
has not disputed the execution of the said SPA or the death of Sh.
Ramesh Chand. Accordingly, it can be prima facie concluded that the
said SPA stood terminated upon the death of Sh. Ramesh Chand, thereby
terminating the right of the plaintiff to collect rent from the defendant.
Arguendo, the plaintiff has claimed himself to be the co-owner of the suit
property. However, the sale deed of the suit property filed by the plaintiff
mentions the property number as 2728-2735 (see page No. 19 of the
registered sale deed and its Hindi translation filed by the plaintiff)
whereas the property number of the suit property is 2518-2525.
Therefore, the plaintiff has not filed any document to prima facie show
that he is the co-owner of the suit property.
8. Accordingly, in light of the prima facie conclusion that the SPA
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dated 07.05.2022 stands terminated and that the plaintiff has not filed
any document to establish his co-ownership qua the suit property, the
plaintiff has failed to establish a prima facie case in his favour.
9. Since the first ingredient of prima facie case itself is not satisfied,
discussion on the remaining ingredients i.e., “irreparable loss” and
“balance of convenience” is inconsequential and hence, is not warranted.
In view of the above, I do not find any merit in the present application
under Order 39 Rule 1 and 2 CPC and the same is accordingly disposed
of as dismissed.
List the matter for examination of the
parties/admission/denial of documents/framing of issues on 22.01.2025.
(Devanshu Sajlan)
CCJ-cum-ARC (Central)
THC/Delhi/30.10.2025
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