Interim Order 6

Order Details: COPY OF ORDER
Pdf Text: CS No. 1041/25
Shish Pal Yadav Vs. Avinash Puri and ors.
20.01.2026
ORDER
1. An application under Order 39 Rule 1 and Rule 2
read with section 151 CPC has been filed by the plaintiff as part
of the present suit. In the suit, plaintiff is seeking permanent
injunction to restrain defendant no. 1 to 7, their associates or any
person acting on their behalf from entering the suit property, as
mentioned in the plaint, situated in the revenue estate of village,
Rajokari, Tehsil Vasant Vihar, New Delhi and creating any
hindrance in the peaceful possession of the plaintiff. Further, it is
prayed that they be restrained from using force, JCB, RMC truck,
construction machine equipments etc. in the property of the
plaintiff and from raising any construction, including raasta from
the property of the plaintiff.
2. As per the case set up in the plaint, plaintiff is the
owner and in possession of the suit property. Defendant no.1 to 7
colluded with each other to grab the property of the plaintiff. On
16/07/2025, it came to the knowledge of the plaintiff that the
debris was being spread in the property of the plaintiff and
despite the complaint to the police, no action was taken and
defendants completed the construction of the road/rasta passing
from the land of the plaintiff. The suit property is undivided
cultivated land and the rights of the plaintiff are affected due to
the illegal act of the defendants as they created a passage without
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the permission or knowledge of the plaintiff. By way of the
instant application, it has been prayed that the defendants be
restrained from entering the suit property; creating any hindrance
in the peaceful possession of the plaintiff and from using any
machine or equipment till the final disposal of the suit.
3. Defendant nos.1 to 4, 6, 7, and 9, in their WS,
denied the averments of the plaintiff in the plaint and
inter alia
stated that road passes through khasra no. 857/2 and the same is
in possession and usage of the defendants and other residents of
Grand Western Green Farms. Defendants are the residents of the
stated colony and a pakka colony road running from farm no. 1
till farm no. 20 was constructed in the year 2004 by the then
developer, namely Mr. Ramesh Aggrawal and a portion of the
said road also passes through khasra no. 857/2. At the initial
stage of development of the colony, the developer left the said
rasta/road for day-to-day usage of the residents and an
undertaking to that effect was also given by the developer and
accordingly the same is being used by the residents since 2004.
As per the defendants, the said road/rasta falls within the
boundary of the Grand Western Green Farm, and therefore, its
maintenance, repair and alignment is within the ambit of the
RWA of the colony i.e New Green Farms Association. The said
road is in dilapidated condition and needs to repaired/re-
constructed to ensure safe and clean passage and to avoid any
untoward incident. Plaintiff obstructed the ongoing repair
activities of the said road/raasta due to which the same has
become unusable for the residents causing hindrance in the
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easementary rights of the residents. As per the defendants,
existence of the said road/raasta is evident from revenue records
maintained by the authorities, affidavit of Mr. Ramesh Aggarwal,
Order of SDM in case bearing no.60/SDM/VV/2011, report of
the local commissioner appointed by the concerned SDM vide
Order dt. 13.05.2011 etc. Admittedly, plaintiff is co-owner to the
extent of 1/18th share in each khasra and accordingly instant suit
is not maintainable in the present form. In their reply, defendants
inter alia averred that plaintiff has failed to establish a prima facie
case, that balance of convenience lies in its favour and has also
miserably failed to demonstrate any irreparable injury, if the
present application is not allowed. Accordingly, it is prayed that
the instant application may be dismissed.
4. Defendant no. 5, in his separate WS, denying the
case of the plaintiff stated that plaintiff is the habitual litigant and
has filed several frivolous cases/complaints before various Courts
and other authorities. As per defendant no. 5, he is absolute
owner and in possession of the land measuring approx. 750 sq
yds. comprised in abovementioned khasra no. 857/2 which he
purchased vide registered sale deed dated 05/06/1997. Defendant
no. 5 has been in peaceful possession and enjoyment of the suit
property since 1997. In the year 2007-08, plaintiff got cemented a
portion of the said land in the shape of a private passage for
accessibility of the plaintiff to his other adjoining parcels of land
situated in the same village. Reiterating the averments as made in
the plaint filed in the case titled as Ramesh Chandra Aggarwal vs
Rajokri New Green Farms Association (Regd.) & Ors. C.S.
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No.1101/25, he stated that actions of the plaintiff, defendant nos.
7, 1 and 6 and one Sh. Subhash Yadav are illegal and amount to
trespass and interference with his peaceful possession. In his
reply to the instant application, he stated that plaintiff has
miserably failed to satisfy the threefold requirement: (i) a prima
facie case in favour of the plaintiff, (ii) that the balance of
convenience is in his favour, and (iii) that he will suffer
irreparable injury, if interim relief is refused. Consequently, it is
prayed that application may be dismissed.
5. Arguments heard at length from both the sides and
records have been meticulously perused.
6. At the outset it would be apt to go through the bare
provisions of Rule 1 of Order 39 CPC which provides cases in
which temporary injunction may be granted. It reads as :
Rule 1 : Cases in which temporary injunction may be
granted – Where in any suit it is proved by affidavit or otherwise-
(a) that 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 any decree,or
(b) that the defendant threatens, or intends, to remove or
dispose of his property with a view to defrauding his creditors,
(c) that the defendant threatens to dispossess, the plaintiff
or otherwise cause injury to the plaintiff in relation to any
property in dispute in the suit, the court may by order grant a
temporary injunction to restrain such act, or make such other
order for the purpose of staying and preventing, the wasting,
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damaging, alienation, sale, removal or disposition of the property
or dispossession of the plaintiff, or otherwise causing injury to
the plaintiff in relation to any property in dispute in the suit as
the court thinks fit, until the disposal of the suit or until further
orders.
Rule 2 provides for injunction to restrain repetition or
continuance of breach.
7. In the case of Gujrat Bottling Co. Ltd. v. Coca Cola Co.
reported in [(1995) 5 SCC 545], the Hon' ble Supreme Court,
while discussing the factors to be considered by the Courts in
exercise of the discretion under Order XXXIX Rules 1 & 2 CPC,
has observed as follows:
“The grant of an interlocutory injunction
during the pendency of legal proceedings is a
matter requiring the exercise of discretion of the
Court. While exercising the discretion, the Court
applies the following tests:
i. Whether the plaintiff has a prima facie case
in his or her favor;
ii. Whether the balance of convenience is in
favour of the plaintiff;
iii. Whether the plaintiff would suffer an
irreparable injury if his or her prayer for
interlocutory injunction is disallowed.
The decision whether or not to grant an
interlocutory injunction has to be taken at a time
when the existence of the legal right assailed by the
plaintiff and its alleged violation, are both
contested and uncertain and remain uncertain till
they are established at the trial on evidence. Relief
by way of interlocutory injunction is granted to
mitigate the risk of injustice to the plaintiff during
the period before that uncertainty could be
resolved. The object of the interlocutory injunction
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is to protect the plaintiff against injury by violation
of his right for which he could not be adequately
compensated in damages recoverable in the action
if the uncertainty were resolved in his favour at the
trial. The need for such protection has, however, to
be weighed against the corresponding need of the
defendant to be protected against injury resulting
from his having been prevented from exercising his
own legal right for which he could not be
adequately compensated. The court must weigh one
need against another and determine where the
“balance of convenience” lies. In order to protect
the defendant while granting an interlocutory
injunction in his favour the Court can require the
plaintiff to furnish an undertaking so that the
defendant can be adequately compensated if the
uncertainty were resolved in his favour at the trial.”
8. In Colgate Palmolive (India) Pvt. Vs. Hindustan
Lever Ltd., AIR 1999 SC 3105, the Hon'ble Supreme Court
observed that the other considerations which ought to weigh with
the Court hearing the application or petition for the grant of
injunctions are as below:
“
(i) Extent of damages being an adequate
remedy;
(ii) Protect the plaintiff's interest for violation
of his rights though however having regard to the
injury that may be suffered by the defendants by
reason thereof;
(iii) The Court while dealing with the matter
ought not to ignore the factum of strength of one
party's case being stronger than the others;
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(iv) No fixed rules or notions ought to be had in
the matter of grant of injunction but on the facts and
circumstances of each case the relief being kept
flexible;
(v) The issue is to be looked from the point of
view as to whether on refusal of the injunction the
plaintiff would suffer irreparable loss and injury
keeping in view the strength of the parties' case;
(vi) Balance of convenience orinconvenience
ought to be considered as an important requirement
even if there is a serious question or prima facie case
in support of the grant;
(vii) Whether the grant or refusal of injunction
will adversely affect the interest of general public
which can or cannot be compensated otherwise.”
9. From the aforesaid judgments, it is clear that the
grant of injunction is a discretionary relief based on equity and
which is granted on the basis of settled guidelines.
10. As per the plaintiff, he is the owner and in
possession of the suit property and no road/raasta existed there.
To reinforce his claim plaintiff has annexed revenue records viz.
khasra girdawri etc., site plan etc. alongwith the plaint.
According to him, defendants carried out illegal activity of debris
on his land and despite complaint, no action was taken against
the defendants and they constructed the said road/raasta passing
from the land of the plaintiff. On the flip side, it is the version of
defendants that road passes through Khasra no. 857/2 and the
same is in possession and usage of the defendants and other
residents of Grand Western Green Farms. To prima facie show
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the existence and use of the said road/raasta, defendant nos.1 to
4, 6, 7, and 9 have adduced, along with their WS, an undertaking
in the form of affidavit given by the then developer, revenue
records maintained by the authorities, Order of SDM in case
bearing no.60/SDM/VV/201, report of the local commissioner
appointed by the concerned SDM vide Order dt. 13.05.2011 etc.
As per defendant no.5, major chunk in the khasra no. 857/2
belongs to him and he got constructed a private cemented
passage on a portion of the said land for his accessibility. Plaintiff
alonwith defendant no. 7, 1 and 6 and one Sah Subhash Yadav
acted illegally and interfered with his peaceful possession.
11. The pleadings, supporting affidavits together with
documentary and oral materials relied upon by defendant nos.1 to
4, 6, 7, and 9, undoubtedly
prima facie depicts the existence of
the said road/raasta and its use by the said defendants over a long
period. There are substantial and triable issues as to the nature
and extent of rights in respect of the way which cannot be
resolved at this stage. Plaintiff claims himself to be the owner of
1/18th share in khasra numbers, as mentioned in the plaint, which
includes the khasra no. 857/2 through which a portion of the said
road/raasta is alleged to be passing. However, it not clear as to
which 1/18th share in the said khasra belongs to the plaintiff and
whether the said road/raasta passes through the said 1/18th share
of the plaintiff in khasra no. 857/2 as admittedly the said 1/18th
share in the said khasra has not yet been legally ascertained by
the plaintiff. Also, in the connected case titled as
Subhash Yadav
versus Avinash Puri and others, CS (SCJ) No. 628/2025, the
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interim injunction claimed against the present defendant nos. 1,
3, 4 and 9 has been denied.
12. In the above discussed circumstances, the plaintiff
has failed to establish the requisite prima facie right for interim
protection. The balance of convenience, having regard to the
antecedent use of the said way by the defendants, the public
interest in ensuring access and safety, and the inconvenience that
an injunction would cause to the defendants (and possibly third
parties), tilts in favour of the defendants. Also, the plaintiff has
failed to demonstrate the element of irreparable injury, if the
relief is not granted, as prayed. Ergo, plaintiff has failed to
cumulatively satisfy the three-fold test.
13. Upshot of the discussion is that plaintiff has failed to
prove the trinity test i.e. prima facie case in favour of the suitor,
balance of convenience and likelihood of irreparable injury.
Consequently, instant application seeking the interim relief stands
dismissed.
14. Nothing herein shall tantamount to expression of any
opinion on merits of the present case.
Announced in the Open Court (ROBINJEET SINGH)
On 20th January, 2026 JSCC/GJ/ASCJ : PHC : NEW DELHI.
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