Final Order 6

Order Details: COPY OF JUDGMENT
Pdf Text: IN THE COURT OF SHEETAL CHAUDHARY PRADHAN:
SENIOR CIVIL JUDGECUMRENT CONTROLLER
NEW DELHI DISTRICT, PATIALA HOUSE COURTS
NEW DELHI
RCA SCJ 05/22
In the matter of :
Garima Kaushik
D/o Sh. Ashok Kumar Kausik,
R/o D469, Saraswati Vihar, Delhi110034.
(M) 8447530672
.... Appellant/ Plaintiff
Versus
PNB Housing Finance Limited
(Through Its Directors)
Regd. Office at:
9th floor, Antriksh Bhawan,
22 Kasturba Gandhi Marg, New Delhi110001.
Also at:
F4 18/19, Wave First Silver Tower,
Plot No.6, BlockD, Sector18, Noida201301.
.... Respondent/Defendant
APPEAL AGAINST THE IMPUGNED ORDER
DATED 03.03.2022
Date of Institution : 29.03.2022
Date of reserve for judgment : 20.12.2022
Date of pronouncement : 25.01.2023
Final Order : Appeal Dismissed.
J U D G M E N T
1. Vide this order, I will decide appeal, filed by appellant
namely Garima Kaushik through her father Sh. Ashok
Kumar Kaushik vide Special Power of Attorney against
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the order dated 03.03.2022, passed by Ld. Trial Court in
Civil Suit No. 1505/21 titled as Graima Kauhik Vs. PNB
Housing Finance Ltd.
2. The impugned order was passed by Ld. Trial Court on the
application of appellant U/o 39 Rule 1 & 2 CPC, thereby
dismissing the said application on the ground that, three
cardinal principles viz. Prima facie case, balance of
convenience and irreparable injury, were not found in the
case of appellant. It was found by Ld. Trial Court that the
relief sought by the plaintiff through the application were
similar to the reliefs claimed in the main suit. Further,
plaintiff had not impleaded builder, party to the tripartite
agreement in question seeking any relief and lastly on the
ground that the relief sought by the plaintiff for restraining
the defendant from sending any legal notice or filing any
legal proceedings before any court till disposal of the suit
cannot be granted in view of the specific bar under Section
41 (d) of Specific Relief Act.
3. So far as narration of facts based on pleadings, is
concerned, same is not disputed by appellant.
Accordingly, facts of the case need not to be reiterated.
4. The impugned order, further is not against the spirit of
principle of natural justice. It is based on settled principles
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of law, which were rightly appreciated by Ld. Trial Court
in the background of facts of the case. It was not an
arbitrary order based on whims of Ld. Trial Judge.
Appellant as such has not challenged the said order based
on said aspects.
5. In the appeal, 5 grounds are taken by the appellant, based
on which, he has prayed that impugned order be set aside.
All the said grounds nowhere point out shortcoming/
illegality in the impugned order. All the said grounds
comprise of either bald averments or narration of facts as
mentioned in the plaint. Said narration of facts and bald
averments regarding impugned order being illegal order,
do not carve out any reasoning, based on which, impugned
order can be set aside. Fact of the matter remains that
appellant is seeking relief of injunction in the garb of
present suit for permanent injunction which amounts to
final relief. Further, defendant disbursed the excess
amount in the year 2017, however plaintiff approached
the court after lapse of around 4 years i.e. in year 2021 and
that plaintiff has not impleaded Supertech Limited
(Builder, party to the tripartite agreement). Whether the
defendant did not abide the payment schedule, can only be
decided on the only once evidence is led by the parties
herein. In the absence of any such documentary proof,
plaintiff failed to show to the Court that principles of
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balance of convenience or irreparable loss, existed in her
favour. So far as existence of principle of prima face case
is concerned, I find that the averments made in the plaint
are required to be proved by the plaintiff by leading
cogent evidence. Further, since the plaintiff has failed to
establish primafacie case in her favour, the other two
factors i.e. balance of convenience and irreparable loss
and injury two principles do not lie in favour of appellant.
For granting an injunction, in favour of appellant, she is
bound to show existence of aforesaid three principles of
civil law jurisprudence, which she failed to do.
6. The net result is regular civil appeal in hand, has no merit.
Same stands dismissed.
7. Record of present appeal be consigned to Record Room
after necessary compliance.
[SHEETAL CHAUDHARY PRADHAN]
Announced in the open court SCJCUMRC
on 25.01.2023 New Delhi Distt, PHC, Delhi
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