Order 7

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: CS SCJ 1886/23
ISRAIEL Vs. SAYMA
29.07.2024
Present: None for plaintiff.
Shri Mohd. Suaib, Ld. Counsel for defendant.
Vide this order I shall decide application under order
39 rule 1 and 2 CPC filed on behalf of plaintiff. The present
application has been filed on behalf of the plaintiff for grant of
injunction in his favour and against defendant restraining
them/their agents/servants/employees or representative etc from
selling, dispossessing or assigning or in any way transferring the
suit premises bearing no. N-95/77, first floor, T-Huts,
Shahzadabad Jhuggi, Inderlok, Delhi-110035 as shown in the site
plan to any other person illegally, forcibly and without due
process of law.
Before deciding the present application it is
necessary to state in brief the facts of present case. The plaintiff
stated that the defendant is known to him and on 29.06.2016 he
advanced Rs.40,000/- cash to the defendant on his asking for a
period of 15 months and executed a loan agreement and on the
same date defendant mortgaged suit property in favour of the
plaintiff belonging to his maternal grandmother. It is further
stated that after the demise of the grandmother the property
were divided equally between defendant and his sister Saheen. It
is further stated that first floor of suit property was sold by said
Saheen to the plaintiff on 21.01.2020 and plaintiff became
exclusive owner and also got the possession of first floor of the
suit property. It is further stated that on 18.01.2017 he again
advanced Rs.75,000/- in cash to the defendant and executed an
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agreement for a period of five years. In January first week
plaintiff came to know that the defendant has sold the
groundfloor of suit property though the same was mortgaged with
the plaintiff. He further stated that in April 2018 the defendant
executed an agreement to sell, GPA, affidavit, possession letter,
receipt and Will in favour of the plaintiff with respect to the
groundfloor of the suit property. On request of defendant he was
allowed to stay as tenant in said ground floor at monthly rent of
Rs.4000/- but the defendant stopped paying the rent to the
plaintiff after July 2022 and have also refused to vacate the
groundfloor of the suit property and is in illegal possession of
said premises.
The defendant in her reply to the present suit as well
as present application under order 39 rule 1 and 2 CPC stated that
the defendant is the owner of the suit property as her maternal
grandmother(nani) Smt.Idya w/o Saukat who died on 24.11.2011
executed a Will in favour of the defendant on 21.07.2011 which
was duly signed by two witnesses. It is further stated that after the
death of her nani she has became absolute owner of suit property
and she had denied taking any loan of Rs.40,000/- from plaintiff.
Also she has also denied taking any further loan of Rs.75,000/-
from the plaintiff. Rather it is submitted by defendant in her WS
that the plaintiff was given the first floor of suit property on a
monthly rent of Rs.4000/- on 01.09.2012 and plaintiff paid the
rent to the defendant till 31.12.2022 but thereafter he refused to
pay the rent and has also not vacated the tenanted premises. The
defendant had also denied executing any mortgage deed or loan
agreement dated 29.06.2016 in favour of plaintiff concerning suit
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property. The defendant also stated that her sister Saheen has no
concern with the suit property and stated that the documents
dated 23.04.2018 pertaining to ground floor of suit property filed
by plaintiff are forged and fabricated. She also denied living on
the groundfloor of suit property as tenant of plaintiff. The present
suit has been stated to have filed without proper valuation and
without any cause of action. And it is prayed that present
application should be dismissed as there is no ground to provide
ad interim relief to the plaintiff.
At this stage, in order to decide the application under
order 39 rule 1 and 2 CPC the court has to examine the case of
plaintiff on three parameters i.e
i. prima facie case in favour of plaintiff or not,
ii. balance of convenient in favour of plaintiff or not and
iii. Ir repairable loss or injury to the plaintiff or not
The undersigned has carefully perused the present
plaint documents annexed therewith as well as the reply of
defendant on record. The photocopy of electricity bill filed by
plaintiff does not bear the name of plaintiff rather it mentions the
name “India”. The photocopy of GPA executed in favour of
plaintiff by sister of defendant mentions that she is true and
absolute owner of suit property and the agreement to sell and
purchase also mentions Saheen as true and absolute owner of suit
property. In the plaint the plaintiff stated that in April 2018 an
agreement to sell, purchase GPA, affidavit etc was executed in
favour of plaintiff by the defendant but the perusal of said
document shows that the same appears to have executed by
defendant as the absolute owner of the suit property in favour of
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the plaintiff. Clearly there is a contradiction in pleadings of the
plaint and document dated 23.04.2018. Further there is no loan
agreement with respect to loan advanced by plaintiff to the
defendant, also there is no mortgage deed executed between
plaintiff and defendant as stated by the plaintiff in his plaint.
Perusal of document filed on behalf of plaintiff clearly shows
contradictions between documents filed and his pleadings. The
documents like agreement to sell, GPA, possession letter
concerning the suit property as stated to have been executed in
favour of plaintiff does not prima facie create title over the suit
property upon the plaintiff. Also the title of plaintiff has been
disputed by defendant in her WS wherein she has stated to
become owner of the suit property by way of Will executed in her
favour by her late maternal grandmother. Both the plaintiffs and
defendant have stated that the other party is their tenant but
neither the plaintiff nor the defendant has filed any document
showing the tenancy of any party concerning the suit property.
The title of plaintiff has been denied by defendant.
Thus in view of the above discussion and in facts and
circumstance of the present case the plaintiff has failed to prima
facie prove his case and thus the first ingredient of an interim
relief has not been satisfied by plaintiff. The balance of
inconvenience also does not lie in favour of the plaintiff and thus
there is no reason at this stage to believe that an irreparable loss
shall be caused to the plaintiff if injunction prayed for is refused.
Hence present application under order 39 rule 1 and 2 CPC is
hereby disposed off as dismissed.
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Both counsels are directed to file affidavit of admission denial
and propose issues if any, on NDOH.
Put up for filing of affidavit of admission denial and
propose issues if any, on 18.09.2024.
(Neha Pandey)
Civil Judge-05/Central/THC
29.07.2024
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