Interim Order 5

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF MR. SAHIL KHURMI, CIVIL JUDGE-
01/CENTRAL DISTRICT/TIS HAZARI COURTS/DELHI
CS SCJ No.1806/2023
Mohammad Asad and another
Vs
Shahzeb
25.09.2023
4:00pm
Present: None.
ORDER
1. By this order, I shall dispose off an application u/O XXXIX Rule 1 &
2 CPC filed on behalf of plaintiffs.
2. Before dwelling into the merits of the present application, the facts of
the present suit are recapitulated as follows:-
2.1 Plaintiffs have filed the present suit for permanent injunction with
the averments that plaintiff No.1 is the owner and in possession of entire
built up property bearing municipal corporation No. 11112 situated at
Motia Khan, Delhi-110055, area about 750 sq. yds. or 627.07 sq. mtrs,
comprising of Ground Floor and First Floor (with roof rights) more
specifically shown in red colour in site plan and plaintiff No.1 had acquired
the aforesaid property from its erstwhile owner namely Sh. Mohammad
Sabir by virtue of Gift Deed, GPA, Possession Letter, Will, Affidavit etc all
dated 25.03.2022.
2.2 It is further stated that plaintiff No.1 had let out one room on first
floor in aforesaid property bearing No. 11112, Motia Khan, Delhi-110006
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to plaintiff No.2 about two years ago at monthly rent of Rs. 3500/-,
presently paying Rs. 4000/- per month.
2.3 It is further stated that defendant is resident of Quresh Nagar, Sadar
Bazar and an anti social element of locality and used to blackmail plaintiff
No.1 on one pretext or the other and try to extort money from plaintiff No.1
and frequently demands money from plaintiff No.l and if plaintiff refuses to
fulfill his demands then he used to pick quarrel.
2.4 It is further submitted that on 16.08.2023 at about 11:00am,
defendant along with 3-4 muscle-men came to the suit property and started
throwing all the goods lying in the room of plaintiff No.2 out of the suit
property i.e. tenanted premises of plaintiff No.2 and trespassed in the same
and tried to forcefully dispossess the plaintiff No.2, however, due to timely
intervention of neighbours, defendant left the spot with further threats
“main iss property ka maalik hu, mujhe iska kiraya diya kar, warna dubara
aaunga aur saara samaan aur bhed/bakre bahar faink dunga”. It is further
submitted that thereafter on 07.09.2023 at about 5.00pm defendant along
with 3-4 goats came to suit property and started forcefully
entering/trespassing in the tenanted premises i.e. room of plaintiff No.2 and
extended threats “yaha mere bakre rahenge, iss kamre ko khali karde”, to
which plaintiff No.2 stopped him and thrown the aforesaid 3-4 goats
outside the said tenanted premises.
2.5 It is further stated that plaintiffs went to PS Sadar Bazar to lodge FIR
but officials of said PS refused to receive the complaint on pretext that the
dispute pertains to civil type of nature and advised plaintiffs to file a civil
suit against the defendant. It is further stated that plaintiff No.1 filed a
written complaint in the name of SHO PS Sadar Bazar dated 11.09.2023
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which was duly received by the official of that PS but no action has been
taken against the defendant till date. Hence the present suit has been with
the following prayers:-
(a) Decree of permanent injunction thereby restraining the
defendant/his agents/servants, associates etc from dispossessing the
plaintiff No.1 or his tenant i.e. plaintiff No.2 from the suit property
without due process of law.
3. Per contra, the present application has been opposed on behalf of
defendant on the ground that the plaintiffs have not proved the chain of
documents showing the title of ownership of the previous owners. Ld.
Counsel for defendant has contended that the possession of the suit
property is with the defendant and he has further disputed rent agreement
and rent receipts and house tax receipts filed by the plaintiffs on record. Ld.
Counsel for defendant has further averred that Sh. Chaudhary Harpal Singh
was the owner of the suit property and on the basis of his Will the suit
property was transferred to his LRs who have already filed civil suit against
the tenant of the suit property i.e. plaintiff No.2, which is presently pending
in the Tis Hazari Courts.
4. Ld. Counsel for defendant has placed reliance on judgment of
Hon’ble Supreme Court of India in matter Padhiyar Prahladji Chenaji vs.
Maniben Jagmalbhai (deceased) in Civil Appeal No. 1382 of 2022
decided on 03.03.2022, wherein it has been held that:- “all the Courts
below have erred in granting permanent injunction in favour of the plaintiff
and against the defendant No.1, who is the true owner.” Thus, Ld.
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Counsel for defendant has argued that plaintiff is not the true owner of
present and present application deserves to be dismissed.
5. The present application u/O XXXIX Rule 1 & 2 CPC is filed by the
plaintiffs on the ground that plaintiffs have strong prima facie case and
balance of convenience also lies in favour of plaintiffs and against the
defendants. That plaintiffs shall suffer irreparable loss in case the ad
interim order is not passed. Accordingly, the present application is filed
with the following prayer:-
Defendant be restrained from dispossessing the plaintiffs
from the suit property i.e. Entire built up property bearing
Municipal Corporation No.11112, situated at Motia Khan,
Delhi-110055, area about 750 sq yds or 627.07 sq. mtrs,
comprising of Ground Floor and First Floor (with roof
rights).
6. I have heard submissions of both the counsels and have carefully
perused the record of the case. I have also given by thoughtful
consideration to the judgment in “W.D. State Electricity Board Vs. Fakir
Chand Rice Mills and Ors, 1996 (3) SCALE 67”
7. At the very outset, it is important to refer the law governing the
grant of injunctions. 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
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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:
i. Whether the plaintiff has a prima facie case in his or her
favor;
ii. Whether the balance of convenience is in favour of the
plaintiff;
iii. 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
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injury resulting from his having been prevented from
exercising his own legal right for which he could 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. The defendant has not placed on record any proof regarding the
possession of the suit property whereas the plaintiffs have duly filed the
proof of possession of the suit property by furnishing on record the
photographs. Regarding the question of title/ownership of the suit
property, the same is matter of trial which shall be proved by leading
evidence by both the parties and cannot be looked into at this stage.
9. A grave prejudice will be caused to the plaintiffs if the present ap-
plication under consideration is declined. Balance of convenience lies
in favour of the plaintiff and against the defendant. Thus prima facie
case is made out in favour of plaintiff.
10. In light of the above, this Court is of the view that a great prejudice
will be caused to the plaintiffs if the present application under
consideration is declined and the balance of convenience lies in favour of
the plaintiffs and against the defendants. Accordingly, the application u/O
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XXXIX Rule 1 & 2 CPC filed on behalf of plaintiffs is partly allowed and
defendant, his successor, agents, employees etc are hereby restrained from
dispossessing the plaintiff No.2 from one room on first floor in the
property bearing No.11112, Motia Khan, Delhi-110006, till the final
disposal of present suit.
11. The present application stands disposed off accordingly.
Nothing in this order shall tantamount an expression on opinion on
merits of this case.
Announced in the open court
on 25.09.2023 (SAHIL KHURMI)
CIVIL JUDGE-01/CENTRAL
TIS HAZARI COURTS/DELHI
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