Order 7

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF MS. POOJA JAIN, DISTRICT JUDGE-03
EAST DISTRICT, KARKARDOOMA COURT COMPLEX, DELHI
CS No. 306/24
Shri Naresh …...........Plaintiff
Versus
Shri Sumit & Ors.(3) ….........Defendants
06.03.2025
O R D E R
1. An application filed by the plaintiff under Order 39 Rule 1 & 2
r/w section 151 CPC is pending adjudication today.
2. Factual matrix of the present case is that the plaintiff had
purchased ground and second floor of the property bearing no. 14/307,
Trilok Puri, Delhi-110091 from the defendant no.1 (hereinafter referred to
as the “suit property”). The suit property is constructed upto third floor.
The first and third floor of the suit property are in possession of defendant
no.3 who is real uncle of the defendant no.1 & 2. The grandfather of the
defendant no.1 & 2 and father of defendant no.3 was the real allottee of the
suit property by DDA. During the lifetime, the father of defendant no.3
sold the suit property to his son namely Shri Keshwar who was father of
defendant no.1& 2. Thereafter, Shri Keshwar had become absolute owner
of the suit property who sold the ground and second floor to his son namely
Sumit, the defendant no.1 who further sold it to the plaintiff. As per mutual
agreement, plaintiff paid Rs.2 lacs in cash at the time of execution of the
documents i.e. notarized GPA, Agreement to Sell, Affidavit, Will and
possession letter and remaining balance of Rs.7 lacs was paid through
cheque bearing no.0000000000000003 dt. 10.08.22 to the defendant no.1.
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After encashment of above-said cheque, all the originals of previous chain
documents in respect of ground and second floor of suit property bearing
no. 14/307, Trilokpuri were handed over by the defendant no.1 to the
plaintiff. Subsequent to this on the request of defendant no.1, the plaintiff
allowed him to stay in the property as a tenant and the rent of two floors of
above-said property was agreed to be Rs.10,000/- per month. The said fact
was in the knowledge of defendant no.2. The defendant no.1 had paid the
rent since January, 2024. Thereafter, the defendant no.1 became defaulter
in paying the rent. On 05.03.2024 when the plaintiff and his brother visited
the suit property, the defendant no.2 & 3 who were in possession of suit
property, refused to handover the vacant and peaceful possession to the
plaintiff and also gave threatening to the plaintiff. The plaintiff made
complaints to the PS Kalyanpuri in this regard. It is further submitted that
the defendants with intent to grab the suit property filed the civil suit for
permanent and mandatory injunction against the plaintiff and defendant
no.1 which is pending adjudication before the Ld. ACJ, East. Upon these
averments, the plaintiff is seeking the relief of recovery of possession of
suit property i.e. ground and second floor of suit property bearing
no.14/307, Trilokpuri, Delhi, permanent injunction thereby restraining the
defendants from creating any third party interest in the suit property and
mesne profits. It is further submitted that plaintiff has apprehension that the
defendants may create third party interest in the suit property on the basis
of possession despite being fully aware that all original documents
pertaining to the suit property are lying with the plaintiff. It is further
submitted that plaintiff shall suffer irreparable loss and injury in case the
defendant is no restrained from creating third party interest. Plaintiff has
prima facie case in his favour and balance of convenience also lies in
favour of plaintiffs. It is therefore requested that defendants, their agents
etc be restrained from creating third party interest in the suit property.
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Hence, the present application.
3. Reply to the application is filed by the defendants. It is
submitted that present suit has been filed on the basis of forged documents
and site plan. Defendant no.3 was not educated and he never signed any
document, he was putting his thumb impression. Defendant no.2 & 3 are
successor of the property. It is further submitted that late father of
defendant no.1 never sold or executed any document with regard to the
property in question in favour of any person. The present suit is hit by
resjudicata. The plot no.14/307 was issued in the name of Maruti son of
defendant no.3 and Ishwar Singh. The suit is not maintainable under order
7 rule 11 CPC and has not been properly valued as per the prevailing
market rate. It is further submitted that balanc of convenience does not lie
with the plaintiff as defendants are residing in the property in question. The
plaintiff has not disclosed what irreparable loss would be caused to him if
no stay is granted. It is therefore requested that present application be
dismissed.
Heard. Record perused and considered.
Order 39 Rule 1 CPC
Order 39 Rule 1 of the CPC empowers courts to grant temporary injunctions in
the following circumstances:
1. Property in Dispute: Where 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 a decree.
2. Damage to Property: Where the defendant threatens or intends to remove or
dispose of his property with a view to defraud his creditors.
3. Breach of Contract: Where the defendant threatens to dispossess the
plaintiff or otherwise cause injury to the plaintiff in relation to any property in
dispute in the suit.
Order 39 Rule 2 CPC
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Order 39 Rule 2 deals with the injunction to restrain the repetition or
continuance of a breach. It provides that in any suit for restraining the defendant
from committing a breach of contract or other injury, whether compensation is
claimed in the suit or not, the plaintiff may, at any time after the commencement
of the suit, apply to the court for a temporary injunction to restrain the defendant
from committing the breach of contract or injury complained of, or any injury of
a like kind arising out of the same contract or relating to the same property or
right.
Prerequisites for Granting Temporary Injunction
The courts consider several factors before granting a temporary injunction.
These include:
1. Prima Facie Case: The applicant must establish that there is a bona fide
dispute and a strong case in their favor. It does not mean proving the case
beyond doubt but showing that there is a serious question to be tried.
2. Irreparable Injury: The applicant must demonstrate that they will suffer
irreparable harm or injury if the injunction is not granted. This injury must be
such that it cannot be adequately compensated by damages.
3. Balance of Convenience: The court must be satisfied that the balance of
convenience lies in favor of the applicant. This means that the inconvenience
caused to the applicant by refusing the injunction would be greater than the
inconvenience caused to the respondent by granting it.
4. No Delay or Laches: The applicant must approach the court without undue
delay. Any unreasonable delay in seeking the injunction may result in the denial
of relief.
In the present matter, plaintiff has contended that he has purchased
the suit property from the defendant no.1 by executing the notarized GPA,
Agreement to Sell, Will, Receipt and Possession Letter dated 12.07.2010.
On the other hand, defendants have contended that they are in the
possession of the suit property. Plaintiff has also contended that he has
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purchased the suit property and he had allowed the defendants to reside in
the suit property as a tenant after its purchase. However, no rent agreement
is relied upon by the plaintiff in this regard. In view of such averment,
prima facie possession of the plaintiffs, at any point of time cannot be
attributable to him. There is no document even remotely having filed by
plaintiffs to show that they were ever in possession of the suit property in
any manner.
7. In order to succeed in an Order XXXIX Rule 1 and 2
application, the plaintiff has to satisfy the trinity test of prima-facie case,
balance of convenience and irreparable loss. The Plaintiffs claim that he is
the owner of the suit property and entitled for possession, damages, mesne
profits, permanent and mandatory injunction of the suit property. The plaint
contains mere bald averments and allegations as to the trespassing by the
defendants in the suit property without any details , specifically when there
is not even an averment to this effect in the plaint that how and when the
defendants trespassed in the suit property.
8. Thus, present case is a case where plaintiff admits his
dispossession and denial of enjoyment of suit property which is claimed by
Defendants to be their exclusive property and exclusive enjoyment of the
same. In such circumstances, the question arises that can the plaintiffs be
allowed to put fetters on the right of defendants in respect of the suit
property. Prima facie, the matter does not seem to be in favour of plaintiffs.
9. A bare perusal of plaint demonstrates that though plaintiff to
be the owner alleging to have purchased the suit property from the
defendant, he has not placed any material evidence to show his possession
over the suit property at any point of time and not mentioned any details
regarding trespassing by the defendants.
10. In view of above as well as the circumstances indicate that
balance of convenience is also not in favour of plaintiffs, the interim relief
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prayed by plaintiffs in such circumstances deserves dismissal. The interim
relief so prayed therefore stands declined. In view of above as well as facts
and circumstances of the case, the present application is being disposed off
with the following order:
ORDER
The application u/o 39 rule 1 & 2 r/w section 151 CPC is
hereby dismissed. Nothing contained herein shall tantamount to have any
bearing on the merits of the case.
Typed to the dictation directly, (Pooja Jain)
corrected and pronounced in District Judge-03,
open court on 06.03.2025 EAST/KKD Courts, Delhi.
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