Interim Order 7

Order Details: COPY OF ORDER
Pdf Text: CS SCJ No. 506/23
Shiv Charan Singh Vs. Surender Manral & Ors.
Counter Claim no. 14/2023
Surender Manral Vs. Shiv Charan Singh
23.08.2023
ORDER
1. Vide this common order, I shall dispose off two applications
both filed under Order 39 Rule 1 and 2 CPC, one at the instance of the
plaintiff of CS no. 506/2023 and the other at the instance of counter-
claimants of counter claim no. 14/23.
2. Firstly, the Court shall discuss in brief the facts of the suit of
the plaintiff which are as follows:-
“The plaintiff purchased a property built up with boundary
wall measuring 200 sq. yards part of Khasra no. 105/20, B Block, Gali
no. 114, Village Burari, Abadi known as Sant Nagar, Burari, Delhi-84
(hereinafter referred to as suit property) vide document i.e. GPA,
agreement to sell, affidavit, will, payment receipt and possession letter
dated 28.02.2023 from one Sh. Praveen Kumar against consideration.
The defendant no. 1 and 2 (also counter-claimants no. 1 and 2 in the
counter-claim) are relative of each other and the defendant no. 1 is the
neighbour of the plaintiff’s property. It is stated that after purchase of
suit property, the defendant no. 1 and 2 started interfering in the
possession of the plaintiff and on 28.02.2023 even tried to block the
entrance of the suit property. Further, on 01.03.2023 when the plaintiff
parked the vehicle of his relative in the suit property, defendant no. 1 and
2 with malafide intention entered the suit property and used
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unparliamentary language. Similarly, on 02.03.2023 when the plaintiff
opened the door of the suit property, the defendant no. 1 threw garbage
into the suit property and when plaintiff opposed the same, the defendant
no.2 also suddenly came there and both of them threatened the plaintiff
not to come to the suit property and further asked him to sell of the same
to the defendants at throw away prices.
Thus, it is pleaded that the defendants with malafide
intention wants to grab the suit property of the plaintiff and there is a
serious apprehension that the defendants may forcibly dispossess the
plaintiff out of the suit property and may create third party interest in the
same by preparing forged documents. Hence, by way of the present suit,
the plaintiff is seeking a decree of permanent injunction against the
defendants so as to restrain them from unlawfully entering the suit
property and to forcibly dispossess him out of the same”.
3. Now, coming to the counter claim of the counter claimants,
the case of the counter claimants is that the property in question was
purchased by the counter-claimant no. 2 vide registered GPA dated
16.05.2005 for a sale consideration of Rs.60,000/-. The suit property is
situated near to the residential house of counter-claimant no. 1, who used
to take care of said plot where a garden was maintained and the vehicles
of counter-claimants were also used to be parked. Further, the said
property was also being used for hosting family functions and as such
the counter-claimants were enjoying the peaceful possession of the plot
since the time of its purchase. It is stated that however, the brother of
counter-claimant no. 1 namely, Mahinder Manral asked the counter-
claimant no. 2 for the original documents of the property in question
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including the previous chain of title on the pretext of depositing property
tax of the property which were accordingly handed over by the counter-
claimant no.2. It is further submitted that however, Sh. Mahinder Manral
in collusion with the non- counter claimant/ plaintiff kept the original
documents pertaining to the suit property and did not return the same
despite the numerous requests of the counter-claimant no. 2. It is also
pleaded that on 24.02.2023 Sh. Mahinder Manral came to the house of
counter-claimant no. 1 and asked for the keys of the plot and since he
was the brother of the counter-claimant no.1, he gave him the keys.
However, to the utter shock and surprise of counter-claimant no. 1, Sh.
Mahinder Manral removed the lock of the counter-claimants over the
gate of the suit property and put his own lock. Counter-claimant no. 1
informed the counter-claimant no. 2 of the said fact and thereafter the
matter was also reported to the police. However, police did not come
and when the counter-claimant no. 2 tried to enter into the suit property,
he was stopped by two guards posted at the suit property. On the next
day, when the counter-claimant no.2 again visited the suit property, he
saw that 9-10 people were occupying the same including 4-5 females
who threatened to implicate the counter-claimant in false cases if he
tried to enter the suit property. Thus, it was apparent that Sh. Mahinder
Marnal and his other accomplices were acting on the instructions of non-
counter claimant/plaintiff who wanted to take forcible possession of suit
property.
The counter-claimant further pleads that on 06.02.2023,
they received summons of the suit filed by the non-counter
claimant/plaintiff and came to know that he had prepared forged
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documents pertaining to the suit property to claim his ownership over the
same. Further, the counter-claimant no. 2 also realized that Sh. Mahinder
Manral was deliberately concealing the title documents of the counter-
claimant so that he could not produce the same as his defence and to
show his title over the suit property. It is also pleaded that on 11.03.2023
during the pendency of suit filed by non-counter claimant/ plaintiff, the
non-counter claimant/plaintiff started carrying out illegal and
unauthorized construction at the suit property and even constructed one
and half floor over the same till the counter-claimants filed their WS to
the suit of the non- counter-claimant/ plaintiff.
Hence by way of the counter-claim, the counter-claimants
are seeking a decree of recovery of possession of the suit property under
Section 6 of the Specific Relief Act on the ground of their past
possession and alleged forcibly dispossession at the hands of non-
counter-claimant/plaintiff. Further, a decree for permanent injunction is
also prayed for so as to restrain the non-counter-claimant/plaintiff from
carrying out any construction at the suit property or creating any third
party interest in the same.
4. Now coming to the applications of both the parties under
Order 39 Rule 1 and 2 CPC in their respective suit and counter claim, it
is seen that by way of his application the plaintiff is seeking an interim
injunction against the defendants/counter-claimants so as to restrain
them from entering into the suit property without his permission till the
pendency of the suit. On the other hand, by way of their application
under Section 39 Rule 1 and 2 CPC an interim injunction is prayed for
by the counter-claimants praying that the plaintiff/ non-counter-claimant
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may be restrained from carrying out any construction at the suit property
or from creating any third party interest in the same till the pendency of
the suit.
5. I have already heard the Ld. Counsel for both the sides and
have also pursued the available material.
6. Before deciding the present applications, it would be apt to
go through the bare provision of Rule 1 of order 39 which provides
cases in which temporary injunction may be granted. It reads as :
Rule 1 : Cases in which temporary injunction may be
granted – Where in any suit it is proved by affidavit or
otherwise-
(a) that any property in dispute in a suit is in danger of
being wasted, damaged or alienated by any party to the suit, or
wrongfully sold in execution of any decree,or
(b) that the defendant threatens, or intends, to remove or
dispose of his property with a view to defrauding his creditors,
(c) that the defendant threatens to dispossess, the plaintiff
or otherwise cause injury to the plaintiff in relation to any property in
dispute in the suit, the court may by order grant a temporary injunction
to restrain such act, or make such other order for the purpose of staying
and preventing, the wasting, damaging, alienation, sale, removal or
disposition of the property or dispossession of the plaintiff, or otherwise
causing injury to the plaintiff in relation to any property in dispute in the
suit as the court thinks fit, until the disposal of the suit or until further
orders.
Rule 2 provides for injunction to restrain repetition or
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continuance of breach.
7. In the case of “Gujrat Bottling Co. Ltd. v. Coca Cola
Co.” reported in [(1995) 5 SCC 545], the Hon' ble Supreme Court,
while discussing the factors to be considered by the Courts in exercise of
the discretion under Order XXXIX Rules 1 & 2 CPC, has observed as
follows:
“The grant of an interlocutory injunction during the
pendency of legal proceedings is a matter requiring the exercise of
discretion of the Court. While exercising the discretion, the Court
applies the following tests: Whether the plaintiff has a prima facie case
in his or her favor;Whether the balance of convenience is in favour of
the plaintiff; Whether the plaintiff would suffer an irreparable injury if
his or her prayer for interlocutory injunction is disallowed. The decision
whether or not to grant an interlocutory injunction has to be taken at a
time when the existence of the legal right assailed by the plaintiff and its
alleged violation, are both contested and uncertain and remain
uncertain till they are established at the trial on evidence. Relief by way
of interlocutory injunction is granted to mitigate the risk of injustice to
the plaintiff during the period before that uncertainty could be resolved.
The object of the interlocutory injunction is to protect the plaintiff
against injury by violation of his right for which he could not be
adequately compensated in damages recoverable in the action if the
uncertainty were resolved in his favour at the trial. The need for such
protection has, however, to be weighed against the corresponding need
of the defendant to be protected against injury resulting from his having
been prevented from exercising his own legal right for which he could
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not be adequately compensated. The court must weigh one need against
another and determine where the “balance of convenience” lies. In
order to protect the defendant while granting an interlocutory injunction
in his favour the Court can require the plaintiff to furnish an undertaking
so that the defendant can be adequately compensated if the uncertainty
were resolved in his favour at the trial.”
8. In “Colgate Palmolive (India) Pvt. Vs. Hindustan Lever
Ltd.”, AIR 1999 SC 3105, the Hon'ble Supreme Court observed that
the other considerations which ought to weight with the Court hearing
the application or petition for the grant of injunctions are as below:
(i) Extent of damages being an adequate remedy;
(ii) Protect the plaintiff's interest for violation of his rights
though however having regard to the injury that may be suffered by the
defendants by reason thereof;
(iii) The Court while dealing with the matter ought not to
ignore the factum of strength of one party's case being stronger than the
others;
(iv) No fixed rules or notions ought to be had in the matter
of grant of injunction but on the facts and circumstances of each case
the relief being kept flexible;
(v) The issue is to be looked from the point of view as to
whether on refusal of the injunction the plaintiff would suffer irreparable
loss and injury keeping in view the strength of the parties' case;
(vi) Balance of convenience or inconvenience ought to be
considered as an important requirement even if there is a serious
question or prima facie case in support of the grant;
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(vii) Whether the grant or refusal of injunction will
adversely affect the interest of general public which can or cannot be
compensated otherwise.”
9. From the aforesaid judgments, it is clear that the grant of
injunction is a discretionary relief based on equity and which is granted
on the basis of settled guidelines.
10. Now keeping in view the above said judgments and the
guidelines laid down by the above said authorities, the court shall see
whether the application filed by the plaintiff and counter claimants
satisfies such conditions/criteria so as to make them entitled for the
prayed relief.
11. Thus, on the conjoint reading of the pleadings of the suit of
the plaintiff as well as of the counter claim of the counter claimants/
defendants, it is apparent that both the sides are raising rival claiming of
ownership over the suit property. It is also seen that both the sides are
relying upon General Power of Attornies and certain other documents to
raise their pleas of owernship. Further, where a copy of such documents
is filed by the plaintiff alongwith his suit, no copy of any such document
has been filed by the counter-claimants either in their WS to the main
suit or in their counter-claim though a plea has been raised that the same
were taken by Sh. Mahinder Manral i.e. brother of the counter-claimant
no. 1 and were never returned back further alleging that the same were
cocealed by him at the behest of the plaintiff so that the counter
claimants could not produced such documents in their defence.
12. It is also relevant to note here that though both the sides are
claiming a title to the suit property on the basis of similar documents,
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however, an objection w.r.t. the maintainability of the suit of the plaintiff
is raised by the counter-claimants on the ground that there is no
registered sale deed in favour of plaintiff and even the documents relied
upon by him are merely notarised.
13. Further, though as per the case of the counter-claimants, the
suit property was purchased by counter-claimant no. 2 on 16.05.2005
and since then he is in the possession of the same, however, admittedly
the suit property is an open piece of land stated to be covered by a built
up boundary wall. Similarly, though the counter-claimants have also
pleaded in their counter-claimant that they have been dispossed from the
suit property after the filing of suit by the plaintiff, however, except the
documents of the alleged purchase, no documents establishing the
possession of the counter claimants over the suit property at any point of
time is filed alongwith the WS or the counter-claim.
14. However, in view of the own case of the counter-claimants
that they have been forcibly dispossessed from the suit property, it is
clear that they are out of the possession of the suit property and it is the
plaintiff who is presently in the occupation of the same (though as per
his suit he is in the possession of the suit property from the date of
alleged purchase i.e. 28.02.2023).
15. Now, as far as the alleged claim of the counter claimants
that they have been illegally dispossessed from the suit property during
the pendency of the main suit and prior to the filing of their WS is
concerned, it is relevant to note here that in their entire pleadings of the
counter-claim, the counter-claimants have not pleaded in any para of
their averments that it was the plaintiff/non-counter-claimant who has
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illegally dispossessed them from the suit property. Rather the entire
claim of the counter-claimants is based on the premise that it was Sh.
Mahender Manral, own brother of the counter-claimant no. 1 who had
taken the title documents as well as the key of the suit property and after
removing the lock of the counter-claimants, had put his own lock on the
suit property. Similary, the pleadings of the counter-claim in para no. 1
where it is pleaded that the counter-claimant no. 2 was stopped by two
guards posted at the gate and that on the next day he saw 9-10 people
occupying the suit property, are also completely silent with respect to the
presence or the commission of any such alleged by the plaintiff/non-
counter claimant. By simply stating that Mr. Mahender Manral and his
other accomplices were acting on the instructions of non-counter
claimant/ plaintiff, the present counter-claim has been filed by the
counter-claimants against the plaintiff seeking a decree of recovery of
possession under Section 6 of Specific Relief Act and permanent
injunction so as to restrain him from carrying out any construction or
creating any third party interest in the suit property. However, very
surprisingly, the said Mr. Mahender Manral who allegedly took the
documents of the property and removed the lock of the counter-
claimants from the gate of the suit propety and put his own lock was not
eve made a party to the present suit.
16. Now coming to the objection of the counter-claimants
regarding the non-maintainability of the suit of the plaintiff on the
ground that there is a serious cloud over the title of the plaintiff as he
does not possess any registered documents in his favour and to buttress
such contentions reliance was also placed on Anathula Sudhakar Vs. P.
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Buchi Reddy (Dead) by L.Rs and & Ors. (2008) 4 SCC 594 to
contend that in view of such position, the suit of the plaintiff is not
maintainable without seeking a relief of declaration of title, the said
objection of the counter-claimants is also without any merits as just by
disputing the documents of the plaintiff, the counter claimants have not
been able to create any such cloud over the title of the plaintiff, more
particularly when nothing has been placed on record to show any of their
claim, right or title over the suit property. The counter claimants though
very conveniently took a plea that the documents of the suit property
were taken by Mr. Mahender Manral and were never returned back
despite repeated requests, however, the said plea of the counter claimants
is also without any valid substance in view of the their own conduct of
not choosing to initiate any proceedings against the said Mr. Mahender
Manral and even not making him a party to the present counter-claim,
though as per their case it was him who had allegedly dispossessed the
counter-claimants from the suit property while acting at the behest of the
plaintiff.
16. As such, since the possession of the plaintiff is not disputed
and there is no merit in the claim of the counter-claimants of the alleged
dispossession by the plaintiff and cloud over his title (since though, the
plaitniff does not possess a registered sale deed, however, the counter-
claimants being without any documents also have no right to question
the said documents/title of the plaintiff), the plaintiff has been able to
show the existence of prima facie case in his favour. Further, as it is
specifically stated that the counter claimants are trying to illegally
interfere into the possession of the plaintiff or to forcibly dispossess him
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from the suit property, the balance of convenience also lies in his favour
as illegal dispossession from the suit property at the hands of counter
claimants shall definitely cause irreparable loss to the plaintiff.
17. On the other hand, as already noted above, there is no valid
cause of action in favour of counter-claimants to institute their counter-
claim against the plaintiff as neither there is any such allegation against the
plaintiff for such alleged illegal dispossession nor there is any other valid
basis to seek the recovery of the possession of the suit property from him.
18. In the above said finding, the application of the plaintiff filed
in CS SCJ No.506/23 under Order 39 Rule 1 and 2 CPC stands allowed and
the defendants are hereby temporarily restrained from the interfereing into
the possession of the plaintiff or forcibly dispossessing him out of the suit
proerty till the pendency of the present suit.
19. However, the application of the counter-claimants filed in
counter claim No.14/2023 under Order 39 Rule 1 and 2 read with Section
151 CPC stands dismissed being devoid of any merits. Further, since the
counter-claim of the counter-claimants is also without any valid cause of
action against the plaintiff, the same also stands rejected under Order 7
Rule 11 CPC.
20. Copy of this order be given dasti.
21. Counter claim of the counter claimants be consigned to
record room.
22. Put up for completion of pleadings/admission/denial of
documents/ settlement of issue in main suit for 05.10.2023.
Balwinder Singh
SCJ-cum-RC: Central District:
23.08.2023
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