Final Order 9

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: Civ Suit 71/24
SHAFRUDDIN (Sr. Citizen) Vs. SALAMUDDIN
04.09.2025
Present:- Mr. Rajeev Gupta and Mr. Archit Gupta, Ld.
Counsels for the plaintiff alongwith plaintiff.
Mr. Ikram Khan, Ld. Counsel for the defendant.
List the matter for orders at 4:00 p.m.
(AYUSH SHARMA)
CIVIL JUDGE/EAST
KKD COURTS/04.09.2025
AT 4:00 PM
Present: None.
1. The present suit has been instituted for a decree of
permanent injunction restraining the defendant from representing
Late Sh. Abdul Rashid as his father before any authority, and
further restraining him from creating any third party interest in
the suit property until he obtains an appropriate declaration
regarding his parentage.
BRIEF FACTS
2. The relevant facts set out in the pleadings of the parties are
as follows:
2.1 The plaintiffs state that their father, Late Sh. Abdul Rashid,
was the owner of the property bearing no. 144, main Patparganj,
Khureji Khas, Delhi-51 (hereinafter “suit property”). He passed
away on 14.08.1989, leaving behind three sons and one daughter.
Cont..
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The plaintiffs claim that, as the legal heirs of Late Sh. Abdul
Rashid, they are the rightful owners of the suit property. They
allege that the defendant had launched a malicious campaign by
falsely claiming to be the son of Late Sh. Abdul Rashid, despite
being fully aware that the deceased had only three sons and one
daughter, who lawfully inherited his estate in terms of his Will.
2.2 In paragraph 6 of the plaint, the plaintiffs further state that
the defendant has filed multiple false cases/suits against them and
third parties representing himself as the son of Late Sh. Abdul
Rashid in an attempt to wrongfully acquire his properties. They
cite the following cases filed by the defendant: (i) an injunction
suit titled ‘Salamuddin Vs. Abdul Sayeed and Ors.’, CS No.
234/06; (ii) ‘Salamuddin Vs. Mahboob’ CS No. 522/18; (iii)
‘Salamuddin Vs. Shahbuddin Malik’ RC/ARC/14/2009; (iv)
‘Salamuddin Vs. Aftabuddin Malik’ RC/ARC/13/2019 (an
eviction petition against a tenant); and (v) a declaration suit titled
‘Salamuddin Vs. Mehrajuddin and Ors.’ CS No. 602/2023.
2.3 In paragraph 15 of the plaint, the plaintiffs further allege
that the defendant has also filed false and frivolous complaints
before the MCD and police authority regarding alleged illegal
construction in the suit property.
2.4 The plaintiffs contend that the defendant’s continuous false
representation as the son of Late Sh. Abdul Rashid is infringing
their rights in the suit property. Accordingly, they have
approached this court to restrain the defendant from using the
name of Late Sh. Abdul Rashid as his father before any authority.
2.5 In his written statement, the defendant asserts that the
Cont..
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present case has been filed only to pressurize him to withdraw the
suits he has filed against the plaintiffs. He states that the plaintiffs
are attempting to grab the properties of his father, Late Sh. Abdul
Rashid, to the exclusion of his lawful share. He further asserts
that he is indeed the son of Late Sh. Abdul Rashid. According to
him, since he was the youngest child, he was initially raised by
his elder sister, Late Smt. Noor Jahan, but was later taken back by
his father, Late Sh. Abdul Rashid.
ARGUMENTS
3. Mr. Ikram Khan, Ld. Counsel for the defendant, argued
that the suit squarely attracts the bar under Section 41 (a) and (b)
of the Specific Relief Act, as the plaintiffs are essentially seeking
to restrain the defendant from prosecuting his lawful suits before
different forums. According to him, the suit is frivolous and has
been filed merely as a device to obstruct and defeat the
defendant’s legitimate claim over the suit property of Late Sh.
Abdul Rashid. He emphazised that, in any case, the question of
whether the defendant is the legal heir of Late Sh. Abdul Rashid
is already subjudice in substantive proceedings instituted by the
defendant. He argued that therefore, no injunction can be granted
in the present suit which would have the effect of frustrating the
defendant’s legitimate proceedings for asserting his share in the
suit property as a legal heir of Late Sh. Abdul Rashid.
4. Mr. Rajeev Gupta, Ld. Counsel for the plaintiffs, submitted
that the defendant is falsely projecting himself as the son of Late
Sh. Abdul Rashid and has instituted multiple proceedings before
various forums and on that basis, is staking a claim over the suit
Cont..
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property. He argued that such conduct has resulted in unnecessary
complications in the proceedings, prolonged litigation, fabrication
of evidence, manipulation of the legal process and grave
oppression of the plaintiffs. Accordingly, he contended that it is
imperative to restrain the defendant from misrepresenting himself
as the son of Late Sh. Abdul Rashid. In support of his argument,
he relied upon the judgment of Hon’ble Allahabad High Court in
Bhoop Singh Vs. Tarif Singh1.
ANALYSIS AND REASONS
5. I have heard the submissions at length and examined the
record. The maintainability of the suit is challenged on two
grounds: firstly, that the suit is barred under the provisions of the
Specific Relief Act, 1963, and secondly, that the suit is frivolous
and has been filed as a subterfuge to defeat the legitimate claim of
the defendant. While considering the issue of maintainability,
what is required to be seen is whether the plaint discloses a real
cause of action or purely an illusory one. The Hon’ble Supreme
Court in Sopan Sukhdeo Sable Vs. Charity Commissioner2 held
that Order VII Rule 11 provides an independent remedy to the
defendant to challenge the maintainability of the suit itself,
irrespective of his right to contest the same on merits. It was held
that the use of the word ‘shall’ is to imply that a duty is cast on
the court to perform its obligations in rejecting the plaint when
the same is hit by any of the infirmities provided in the four
clauses of Rule 11, even without intervention of the defendant.
6. On examining the plaint in the present case, particularly
Cont..
1 AIR 1952 All 392
2 (2004) 3 SCC 137
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paragraphs 7, 10, 11 and 25, it is noted that several litigations are
pending between the parties, wherein the defendant has asserted
his claim over the suit property as the son/legal heir of Late Sh.
Abdul Rashid. Therefore, by seeking a permanent injunction, the
plaintiffs in the present suit are in substance, attempting to
preclude/frustrate the right of the defendant from proving his
claim of heirship in those proceedings and from asserting his
rights over the suit property. In other words, the relief sought
herein is essentially aimed at frustrating the defendant’s pending
litigations in other courts.
7. On a holistic reading of the plaint and the relief sought, I
find that the relief is barred under Section 41 of the Specific
Relief Act, as no plaintiff can be permitted to seek an injunction
that would prevent the defendant from prosecuting or seeking any
other remedy available in law. The Hon’ble Supreme Court in
Cotton Corporation of India Ltd vs. United Industrial Bank
Ltd3, highlighted the equitable principle underlying under Section
41 of the Specific Relief Act, 1963 and held:
“8. It is, therefore, necessary to unravel the
underlying intendment of the provision contained in
Section 41 (b). It must at once be conceded that
Section 41 deals with perpetual injunction and it
may as well as be conceded that it has nothing to do
with interim or temporary injunction which as
provided by Section 37 are dealt with by the Code of
Civil Procedure. To begin with, it can be said
without fear of contradiction that anyone having a
right that is a legally protected interest complains of
its infringement and seeks relief through court must
Cont..
3 (1983) 4 SCC 625
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have an unhindered, uninterrupted access to law
courts. The expression “courts” here is used in its
widest amplitude comprehending every forum where
relief can be obtained in accordance with law.
Access to justice must not be hampered even at the
hands of the judiciary. Power to grant injunction
vests in the court unless the legislature confers
specifically such power on some other forum. Now
access to court in search of justice according to law
is the right of a person who complains of
infringement of his legally protected interet and a
fortiori therefore, no other court can by its action
impede access to justice. This principle is deducible
from the Constitution which seeks to set up a society
governed by ride of law. As a corollary, it must yield
to another principle that the superior court can
injunct a person by restraining him from instituting
or prosecuting a proceeding before a subordinate
court. Save this specific carving out of the area
where access to justice may be impeded by an
injunction of the court, the legislature desired that
the courts ordinarily should not impede access to
justice through court. This appears to us to be the
equitable principle underlying Section 41 (b).
Accordingly, it must receive such interpretation as
would advance the intendment, and thwart the
mischief it was enacted to supress, and to keep the
path of access to justice through court
unobstructed.”
8. Moreover, whether the defendant, is in fact, the son of Late
Sh. Abdul Rashid is a matter to be adjudicated in appropriate
proceedings. In such proceedings, the plaintiff would always have
the opportunity to establish, by way of evidence and all the legal
Cont..
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defenses available under law, that the defendant is not the son of
Late Sh. Abdul Rashid and consequently, has no right, title or
interest in the suit property. In the context of the present case,
guidance may also be drawn from the judgment of Hon’ble
Supreme Court in Frost International Ltd. Vs. Milan
Developers and Builders Pvt. Ltd4, wherein the court, while
dealing with the suit seeking a declaration that a cheque was
issued to the plaintiff merely as a security and that the plaintiff
was therefore not liable to pay the cheque amount, held as
follows:
“49. In the instant case, on a reading of Para 13 of
the plaint, it is evident that cheque isssued had been
dishonoured and Defendant 1 had issued notice
under Section 138 of NI Act on 10-6-2009, to the
plaintiff and its Managing Diretor replied to the
same through their advocate on 23-6-2009.
Therefore, it is evident that the plaintiff by seeking
the aforesaid reliefs is in substance frustrating the
right of Defendant 1 to take steps under the
provisions of the NI Act for releasing the amount of
cheque issued by the plaintiff to Defendant 1 for a
sum of Rs. 56 lakhs by filing a civil suit and/or by
initiating a criminal prosecution. In other words, by
seeking such a declaration that the cheque was
issued as a security and that the same was illegally
handed over by Defendant 2 to Defendant 1 in
violation of the terms and conditions of the MoU,
the plaintiff in substance is making an attempt to
frustrate proceedings being initiated under Section
138 of the NI Act or for recovery of the amount by
filing a civil suit.
Cont..
4 (2022) 8 SCC 633
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50. On a holistic reading of the plaint and on
consideration of the reliefs sought by the plaintiff,
we find that the said reliefs are barred by law
inasmuchas no, the plaintiff can (sic cannot) be
permitted to seek relief in a suit which would
frustrate the defendants from initiating a
prosecution against the plaintiff or seeking any other
remedy available in law. In fact, the attempt made
by the plaintiff to seek such a declaratory relief is, in
substance, to seek a relief of injunction against the
defendatns, particularly Defendant 1, but framed it
in the nature of a declaratory relief. In other words,
the plaintiff has sought an injunction against the
Defendant 1 from seeking remedies in law on
account of the cheque issued by the plaintiff for a
sum of Rs. 56 lakhs being dishonoured.”
9. The judgment relied upon by the plaintiff’s counsel in
Bhoop Singh (supra) pertained to a declaratory suit filed by the
plaintiff therein, seeking a declaration that he was the son of one
Mokam Singh and not of Ganga Sahai. However, in all fairness,
the decision is not applicable to the present case. This is because
the declaration sought in that matter related to the plaintiff’s own
‘legal character’, whereas in the present case, the declaration
concerns the legal character of another person.
10. In the result, the plaint is rejected under Order VII Rule 11
CPC. Decree sheet be drawn forthwith. File be consigned to
record room after due compliance.
(AYUSH SHARMA)
CIVIL JUDGE/EAST
KKD COURTS/04.09.2025
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