Interim Order 9

Order Details: COPY OF ORDER
Pdf Text: CS SCJ 2460/24
PARDEEP Vs. MAHIPAL @ MAHENDER BHATI
22.01.2026
At 04:30 P.M
Present: None.
1. Vide this order, the application under Order 39 Rule 1 & 2 CPC shall
be disposed of.
2. Brief facts of the case necessary for disposal of the instant application
is that the plaintiffs are the owner of the property ad-measuring 340 sq.
yards forming part of khasra no.449 situated in Revenue Estate of
village Jagatpur Abadi known as Gali No. 10-D, Near Shiv Chowk,
Jagatpur Extension, Jagatpur, Delhi-110084. That defendant no.1 to 3
have raised illegal / unauthorized wall by encroaching more than 10
feet of gali (passage) exclusively meant for the ingress / egress to the
plaintiffs’ plot and further by encroaching upon the common road and
by covering the naali (drain). That in the month of October, 2024,
defendant no.1 started construction over the property bearing Khasra
no.499 and tried to encroach upon 12 feet gali (passage) meant for the
entry / exit to the plaintiffs’ plot which is in front of the defendants’
plot. That the defendants had elevated and diverted the common drain
in a way that the water reverts back overflowing to the road which has
resulted in the seepage in the houses of the neighbours. That the
plaintiffs have filed multiple complaints in this regard, however no
action has been taken. Hence, the present suit.
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3. An application under Order 39 Rule 1 & 2 CPC was filed by the
plaintiff with the reliefs that defendants, its associates, agents and
representatives be restrained from construction anywhere within the 12
feet gali shown in red colour in the site plan and from interfering with
the exclusive passage towards the plaintiff’s plot in any manner till the
final disposal of the suit.
4. The aforesaid application of the plaintiff was contested on behalf of
defendant no.1 to 3 by filing reply to the same.
5. Heard the arguments advanced by all the parties and carefully perused
the record.
6. It is a well settled law that a relief of interim injunction cannot be
claimed as a matter of right. Also, before granting ad-interim
injunction, the court must be satisfied that there exists a
prima facie
case in favour of the applicant that balance of convenience lies in
favour of the applicant and that irreparable injury would be caused to
the applicant if ad-interim injunction as prayed is not granted. All the
three grounds must co-exist.
7. To prove the prima facie case in their favour, the plaintiffs have filed
the copy of Khata Khatauni of the suit property, copy of site plan of the
village, site plan of the alleged encroachment alongwith the copy of
complaints and certain photographs. The plaintiffs have not filed any
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document to show that the common passage used by the plaintiffs for
their ingress / egress towards their property was having width of 12
feet. Even the copy of Khata Khatauni and the site plan of the village
does not show the width / dimension of the said passage to be of 12
feet wide. During course of arguments, Ld counsel for plaintiffs has
pointed out the alteration in the common passage in the title documents
of the defendant no.1 to 3 and has argued that the original width of the
common passage was of 12 feet which has been changed by the
predecessor in interest of the defendants’ plot.
8. Bare perusal of the chain of title documents furnished by defendant
no.1 to 3 alongwith their written statement shows that defendant no.2
had purchased the property from Smt. Kusum in October, 2023. Smt.
Kusum had purchased the property from Sh. Manoj Chaudhary in
November, 2013. Sh. Manoj Chaudhary purchased from Sh. Biram
Gautam in July, 2013 who had purchased the property from Uma
Shankar Gautam in January, 2013. In the title documents of defendant
no.2, Smt. Kusum, Sh. Manoj Chaudhary and Sh. Biram Gautam, the
width of the gali is shown to be 5 feet wide whereas in the title
document of Uma Shankar Gautam, the width of the gali is shown to
be 14 feet wide. From the documents, there is no doubt that the
dimension of the common passage has been changed when the property
changed hands from Sh. Uma Shankar Gautam to Sh. Biram Gautam in
January, 2013. However, no explanation has been put forth by the
plaintiffs why no action has been taken by them with respect to the
alteration of the common passage from 14 feet to 5 feet when the
property was purchased by Sh. Biram Gautam. Apparently the
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plaintiffs have not acted diligently when the dimension of the common
passage was changed way back in January, 2013. Further, it is not a
case where defendant no.1 to 3 have altered the dimension of the
common passage themselves since when defendant no.2 purchased the
property from Smt. Kusum, her documents also reflected the
dimension of the common passage to be of 5 feet. The onus is upon the
plaintiffs to prove their case and except mere averments, the plaintiffs
have failed to furnish any relevant document to show that the width of
the common passage was 12 feet which has been reduced by defendant
no.1 to 3. It is pertinent to mention that although Ld counsel for
plaintiffs has relied upon the title documents of predecessor in interest
of defendant no.2 to show that the width of the common passage was
of 14 feet, however, in the plaint the width of the common passage has
been mentioned as 12 feet which is not in consonance with each other.
Hence, the plaintiffs have failed to show prima facie case in their
favour.
9. It is a settled proposition of law that when a party fails to prove prima
facie case in its favour, the question of considering the balance of
convenience or irreparable loss and injury to the party concerned
would not be material as even if the party has made out a case of
balance of convenience being in his favour and would suffer
irreparable loss, no injunction can be granted.(Reference may be made
to the case of
Kashi Math Samsthan & Anr. V. Srimad Sudhindra
Thirtha Swamy & Anr. AIR 2010 SCC 296). Since the plaintiffs have
not been able to show prima facie case in their favour, the application
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under order 39 Rule 1 & 2 CPC thus merits dismissal. It accordingly
stands dismissed and disposed off.
10. Nothing herein shall tantamount to expression of opinion on the
merits of the case.
(Umesh Kumar)
JSCC-Cum-ASCJ-Cum-Guardian Judge-02
Central, Tis Hazari Courts/22.01.2026
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