Order 13

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: Civ Suit 779/23
ANJU RAWAL Vs. ANJALI DUBEY
15.05.2025
Present: SPA Holder of the plaintiff in person.
On perusal of the case file, it is observed that the
matter is at the stage of orders on the application under Order 39
Rule 1 and 2 CPC.
Kept awaited at 04:00 PM.
(Gaurav Sharma)
JSCC-cum-ASCJ-cum-Guardian Judge
East/KKD Courts/Delhi
15.05.2025
AT 04:00 PM
Present: None.
Before adjudicating on the application under Order
39 Rule 1 and 2 CPC, given the pleadings and the reliefs sought,
the Court is inclined to discuss the form and the manner in which
the present suit has been filed.
The lis before the Court is one for permanent and
mandatory injunction, filed by the plaintiff against her daughter
in law / defendant no. 1 Anjali Dubey seeking her eviction from
the suit property (First Floor, H.No. 40A, L Type, Street No. 8,
Sarojini Park, Shastri Nagar, Delhi-110031). Defendant no. 2,
Mayank Rawal, was later impleaded as one of the defendants
upon Court directions. Ostensibly therefore, plaintiff has filed an
injunction suit only, treating her daughter in law / defendant no.
1 as her licensee. This is so since it is no longer
res integra that in
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case of a licenser – licensee relationship, the licenser can seek
eviction of a licensee by filing of a suit of mandatory injunction
provided such suit is filed within reasonable time of termination
of the license of the licensee by the licenser. If action proposed to
be taken after termination of license is delayed, it has been held
by the Superior Courts from time to time that a simplicitor suit
for injunction will not lie and a comprehensive suit seeking
possession then becomes the remedy.
In the present case, at nowhere in the pleadings has
the plaintiff explicitly stated of her considering / treating the
defendant no. 1 / daughter in law as her licensee. Even if for
arguments sake, such fact is presumed to be taken as a given in
view of the title to the suit property asserted by the plaintiff and
the factual narration of the events as they have transpired leading
upto the filing of the present suit, i.e. alleged harassment by
defendant no. 1 / daughter in law of the plaintiff by forcibly
occupying the suit property on the one hand and making the lives
of the plaintiff and her family difficult on the other because of
which her eviction is sought, still, nowhere in the pleadings has it
been categorically stated by the plaintiff as to when
circumstances being as such, it terminated the license of
defendant no. 1 / daughter in law. The defendant no. 1 was
married to defendant no. 2 in 2020 and it is pleaded that for only
about 20 days after the marriage, friction had developed between
the parties, evidenced by PCR calls having been made from
31.10.2021 onwards. Litigation of various kinds is pending
between the parties pertaining to circumstances emanating
thereafter. If that be so, the plaintiff is bound to clearly plead as
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to when did it terminate the license of defendant no. 1 to reside in
the suit property so that the present suit for injunction can be
considered to be validly filed / instituted. In fact, it is also seen
that pleadings nowhere state as to any legal notice having been
issued to the defendant no. 1 for termination of her license to
reside in the suit property. Though, issuance of legal notice is not
a necessity in strict sense of the term, but either which way, if it
were so issued, the clear intent of the plaintiff would have been
known as to when the license was terminated. Since neither that
was done nor has it been pleaded in the plaint anywhere as to
when such license was so terminated, the Court is unable to
gather as to from when the possession of the suit property by the
defendant no. 1 was treated by the plaintiff as unlawful. Without
averring anything in that regard, the suit filed by the plaintiff
seems to be suspect. The defendant no. 1 is also seen to have
raised objections in this regard that a possession suit should have
been filed instead. Without commenting on the merits of such a
claim, irrespective, the plaintiff is duty bound to clearly state in
the plaint as to the capacity in which the defendant no. 1 is
sought to be evicted and when did circumstances in that regard
arise.
Further, it is also seen that the plaintiff has
effectively sought seven reliefs. With regards seeking ouster of
defendant no. 1 from the suit property, relief for mandatory
injunction is required to be sought. As per the prayer clause (A)
however, it is seen that the plaintiff has sought instead the relief
for permanent injunction, which is not proper.
In view of the above, this court is constrained to
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note that in view of the form and manner in which the pleadings
have been framed and the inappropriate manner in which the
relief of permanent injunction, instead of mandatory injunction,
has been sought for evicting defendant no. 1 from the suit
property, the application under Order 39 Rule 1 and 2 CPC
cannot be considered for the time being unless the Court queries
raised are addressed first. This is so in view of the long standing
settled law that no interim relief can be granted where the main
relief sought is not proper.
Considering the above, no directions are required to
be passed qua the application under Order 39 Rule 1 and 2 CPC
for now till clarifications are made by the plaintiff in the above-
mentioned terms.
Needless to say, the application under Order 39 Rule
1 and 2 CPC shall be considered as per law after addressing the
Court concerns as above.
Re-list on 06.08.2025.
(Gaurav Sharma)
JSCC-cum-ASCJ-cum-Guardian Judge
East/KKD Courts/Delhi
15.05.2025
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