Interim Order 4

Order Details: COPY OF ORDER
Pdf Text: Suit No. 106/22 Dwapayan Gupta vs. Sharda Aggarwal & Anr.
IN THE COURT OF MS. PREETI, CIVIL JUDGE-I, NEW DELHI DISTRICT,
NEW DELHI
Suit No. 106/22
In the matter of:-
Dwapayan Gupta
……....Plaintiffs
Versus
Sharda Aggarwal & Anr.
……..... Defendants
ORDER
1. By this Order, I shall dispose off an application under Order XXXIX Rules 1 and
2 r/w section 151 of Code of Civil Procedure, 1908 (hereinafter referred to as
“CPC”) moved on behalf of plaintiff seeking ad interim injunction against
defendants as follow:-
(a) Restraining defendants from illegally dispossessing the plaintiff from the
tenanted premises i.e. Room at first floor, property No.70, Todarmal Road,
C.P. New Delhi.
(b) Restraining defendants from obstructing the common passage by way of
placing plants and pots from the main gate at point A to entrance gate at point
B as referred in the site plan.
(c) Restraining defendants from putting any locks at gates shown at point A and B
who obstruct the accessibility of the plaintiff or in alternative, directing the
defendants to place a common locks at gates shown at point A and B.
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(d) Restraining defendants from creating any hindrance for plaintiff for peaceful
enjoyment of the tenanted premises.
(e) Restraining the defendants from creating any nuisance such as calling names
to the staff and clients of the plaintiff.
2. Facts of the case as emerging from the plaint are that the plaintiff is a practicing
counsel and defendant no.1 and 2 are stated to be occupiers in possession of
property bearing no. 70, Todarmal Road, C.P. New Delhi. It is stated that
defendant no.2 hired plaintiff as her counsel. It is further stated that the
defendants offered part of their property (one room at first floor) bearing no. 70,
Todarmal Road, C.P. New Delhi (hereinafter referred to as suit property) on rent
to the plaintiff in September 2016 on a monthly rent of Rs. 2500/- per month
excluding other charges. It is further stated that plaintiff had spent money in
arranging furniture and other articles in suit property. It is further stated that
plaintiff paid a sum of Rs. 50,000/- in cash to the defendants as security amount.
It is further stated that plaintiff has been using the suit property as his office
space. It is further stated that suit property is situated within the entire property in
such a manner that one has to enter the premises from the road through the main
gate and thereafter an internal gate leads to stair gate which leads to the first floor
at the suit property. It is further stated that defendants never allowed plaintiff to
pay rent through bank account. It is further stated that after lifting of lockdown in
July 2021, when plaintiff started going to this office, the defendants started to
create nuisance by not opening the locks and also obstructing the passage. It is
further stated that defendants have placed plants and flower post to create
obstructions. It is further stated that in November 2021, defendants asked plaintiff
to either pay the rent at any exorbitant rate or to vacate the premises. Hence, the
present suit.
3. Reply to the application under Order XXXIX Rule 1 and 2 CPC was filed on
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defendants wherein it is stated that defendant no.1 is a 76 years old lady
dependent upon defendant no.2 who is also 51 years old. It is further stated that
defendant no.2 started working from year 2010. Defendant no.2 made the office
set up at First Floor for the purpose of working from home. It is further stated that
defendants met plaintiff in year 2017 and hired him as her counsel. It is further
stated that plaintiff used to visit defendant no.2 for discussion regarding the
matrimonial cases in the suit property. Initially, plaintiff used to keep the case
files of defendant no.2 alongwith some other case files of his other clients which
the defendant no.2 could not dare to object due to lawyer client relations. It is
further stated that when defendant no.2 politely asked the plaintiff why he used to
put his case files in suit property, the plaintiff replied that he was having majority
of cases in the nearby courts and it was convenient for him to collect the files
from the suit property. It is further stated that plaintiff actively participated in
arranging labourers, furnitures, office accessories. It is further stated that when
plaintiff started coming with his clients, they sensed his intimation. It is further
denied that suit property was ever given in tenancy to plaintiff.
4. I have heard the submissions of both the parties and carefully perused the record.
5. The Hon'ble Supreme Court of India in “Hindustan Petroleum Corporation
Limited Vs Sriman Narayan And Anr. AIR 2002 SC 2598” has held that object
of interlocutory injunction is to protect the plaintiffs against injury by violation of
his right for which he could not be adequately compensated in damages
recoverable in the action, if the uncertainty was resolved in his favour at the end
of the trial. It is also held that balance of convenience should also be determined.
While exercising the discretion, the Court normally applies the following tests :-
(a) Prima facie case in favour of the plaintiffs.
(b) Balance of convenience lies in favour of the plaintiffs.
(c) Irreparable or injury shall be suffered by the plaintiffs, if the application is not
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allowed.
6. In the instant case, the reliefs claimed by way of present application are similar to
the relief claimed in the suit. It is well settled general proposition of law that
mandatory injunction at the interlocutory stage should not normally be granted
which has the effect of granting the final relief. It is only under exceptional
circumstances, such a relief at interlocutory stage can be granted by the courts. In
the present case, plaintiff has claimed himself to be tenant in the suit property
since September 2016 at a rent of Rs. 2500/- per month. On the contrary,
defendant no.2 has averred that the suit property is used as office space by her
and plaintiff, by taking advantage of fiduciary relationship with them, is trying to
grab the suit property. Plaintiff has filed some photographs of suit property, one
bank statement indicating debit of Rs. 5000/- in favour of defendant no.1 in
December, 2020 in order to show that he is a tenant in the suit property. On the
contrary, defendants have placed visiting card of plaintiff which reflects the office
address of the plaintiff as some chamber in Tis Hazari, courts. Plaintiff has not
filed any rent agreement or any documentation which might have prima-facie
suggested that plaintiff is a tenant in the suit property. Admittedly, plaintiff is a
practicing counsel and a higher standard of care is expected from him that to in
the cases where he is having personal interest. Mere placing of some photographs
of suit property does not show that he is tenant, there is something more required
to prove the tenancy.
7. It is well settled that where the plaintiff is asserting a right, he should show a
strong prima-facie case atleast in support of the right which he asserts. Where any
doubt exists as to the plaintiff's, the court, in determining whether an interlocutory
injunction should be granted, should take into the consideration, the balance of
convenience to the parties and the nature of injuries which would be caused to the
parties. The burden to prove that inconvenience which the plaintiff will suffer by
refusal of injunction if greater than that which the defendants will suffer, if it is
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granted lies on the plaintiff. However, in the present case, plaintiff has failed to
show any prima-facie case in his favour as neither any document has been placed
on record by plaintiff to show his tenancy nor his possession in suit property has
been prima-facie established. Even, the balance of convenience does not lie in his
favour as defendants are two women having advance age residing on their own in
the property. Direction of putting common locks in the property may be adverse
to their security. It is also well settled that in case of doubt about the case of the
plaintiff or when the case of the plaintiff is not clear, the extraordinary relief of
mandatory injunction cannot be granted to him at this stage.
8. Therefore, in view of these facts and circumstances of the case, the application
under Order XXXIX Rules 1& 2 is disposed off as dismissed.
9. Nothing stated herein shall tantamount to be an expression of the merits of this
case.
Announced in the open Court (Preeti)
on 01.02.2022 Civil Judge-I, New Delhi District
New Delhi
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