Interim Order 4

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF MS. MANU VEDWAN,
DISTRICT JUDGE-2, NORTH EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
CS No. 136/2024
Nilofar ....Plaintiff
Versus
Nasir Khan & Ors. …. Defendants
15.10.2024
ORDER ON APPLICATION UNDER ORDER XXXIX RULE 1 &
2 READ WITH SECTION 151 CPC MOVED ON BEHALF OF
PLAINTIFF.
1. Vide this order, I shall dispose of an application under Order
XXXIX Rule 1 & 2 read with section 151 CPC moved on behalf of
plaintiff.
2. It is stated in the application U/o XXXIX Rule 1 & 2 r/w Sec.
151 CPC that contents of plaint be read as part and parcel of
application. It is stated in the plaint that defendant number 1 is the
father of the plaintiff, the defendant number 2 and 3 are the brothers
and the defendant number 4 is the sister of the plaintiff. It is stated
that mother of the plaintiff was the absolute owner of the property
bearing number A-10/1, measuring area 117 square yards,
measuring 23’4” X 45’, alongwith its whole of the structure of
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ground plus four floors with roof rights, out of
Khasra number 1,
situated at abadi Chuahan Banger, in the area of Ghonda Village,
Illaqa Shahdara, Delh-110053(hereinafter referred to as suit
property). This property was acuired by the mother of the plaintiff in
the year 1994 from one InamulHaq(who had acquired the property
from his wife through a Will, dated 20.02.1993, for a consideration
of rupees 85,000/-. It is further stated that mother of the plaintiff
Smt. Husan Ara expired intestate on 20.11.2023 leaving behind legal
heirs that are Smt. Nilofar(married daughter), Sh. Danish(married
son), Sh. Qadir(married son), Smt. Faryal(married daughter) and Sh.
Mohd. Nasir(husband). It is further stated that so all legal heirs are
the co-owner/co-sharers in respect of their respective shares in the
aforesaid property. It is further stated that after purchasing the suit
property the mother of the plaintiff had got constructed the building
upto four floor alongwith 2 shops and 2 halls at the ground floor, a
three room set on the first floor and the remaining floors are all four
room set. It is further stated that for a long period plaintiff used to
occupy the suit property under an arrangement with her family
members as accommodation provided by the mother of the plaintiff.
It is further stated that mother of the plaintiff before her death had
handed over the original documents of the suit property to the
plaintiff. It is further stated that due to the death of the mother of the
plaintiff, she undewent immense trauma and was admitted in
hospital. Getting an opportunity, the defendant number 2 and 3
broke open the locks of the portion of the plaintiff in the suit
property and threw all the belongings out of the said portion and
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thereby dispossessed the plaintiff. It is further stated that plaintiff
persistently approached and requested the defendant number 2 and 3
to partition the suit property to the extent of their respective shares,
but, the defendant number 2 and 3 threatened the plaintiff to face
dire consequences and that they would create the third party interest
in suit property. It is therefore requested to pass an ex-parte ad-
interim injunction in favour of the plaintiff and against the
defendant, their legal heirs, attorneys, agents, representatives and
servants et cetera not to create any third party interest in the suit
property bearing number A-10/1, measuring area 117 square yards,
measuring 23’4” X 45’, alongwith its whole of the structure of
ground plus 4 floors with roof rights, out of
Khasra number 1,
situated at abadi Chuahan Banger, in the area of Ghonda Village,
Illaqa Shahdara, Delh-110053.
3. Common reply has been filed on behalf of defendant number
1 to 3 to the abovesaid application of plaintiff in which it is stated
that contents of written statement be read as part and parcel of reply.
In the written statement, apart from denying all the allegations made
by the plaintiff, it is stated that plaintiff has not approached before
the Hon’ble Court with clean hands and suppressed the true material
facts. Deceased Ms. Husn Ara was the housewife and she did not
have any source of earning. The suit property bearing number A-
10/1, measuring area 117 square yards out of
Khasra number 1,
Gali
number 11, Chuahan Banger, Delh-110053 and another built up flat
on third floor, right side, measuring 50 square yards, in the property
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bearing number 1309/1, Noorani Wali Gali, Chauhan Banger, Delhi-
110053 was purchased by defendant number 1 but the title
documents of ownership of both properties were got transferred in
the name of his wife out of love and affection. Defendant number 1
is the real owner and in possession of the suit property since its
purchase. Defendant number 1 got the whole structure constructed
with his hard-earned money and the defendant number 2 and 3 also
contributed in the said construction.
It is further stated that the suit property is the lifelong saving
of defendant number 1 and plaintiff do not have any right title
interest to claim the partition in the suit. It is further stated that after
the death of Ms. Husan Ara, plaintiff had stolen the title documents
of both properties from the locker of defendant number 1 when
answering defendants went for burial of deceased. After the death of
Husan Ara, defendant number 4 occupied the said flat without
intimation and consent of answering defendants. Defendant number
1 got an online NCR registered regarding the theft of title
documents of property. It is further stated that the intention of
plaintiff is quite visible from the fact that she has deliberately not
uttered a single word regarding the built up flat on third floor, right
side, measuring 50 square yards, in the property bearing number
1309/1, Noorani Masjid Wali Gali, Chauhan Banger, Delhi0110053.
It is therefore requested that there is no merit in the application of
the plaintiff and it be dismissed.
Despite opportunities given to the defendant number 4, latter
miserably failed to file reply of the application of the plaintiff.
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4. Submissions on behalf of parties heard at length. Application
perused carefully.
5. In issuing temporary injunction the tests to be applied are (i)
whether the plaintiff has a
prima facie case, (ii) whether the balance
of convenience is in favour of the plaintiff, and (iii) whether the
plaintiff would suffer an irreparable injury if his prayer for
temporary injunction is disallowed. This Court is required to see
prima facie case, balance of convenience as well as irreparable loss.
While, considering the question of
prima facie, it is not to be
confused with
prima facie title. What is required is that the plaintiff
has to show that he has
bona fide raised a substantial question,
which needs to be adjudicated at the trial of the suit. The plaintiff is
thus required to
prima facie establish that in the event of non-
interference by the Court, it will result in irreparable injury and
substantial loss.
6. Also, while considering irreparable injury comparatively,
which of the parties would be put to more or substantial mischief in
the event of refusal to grant a temporary injunction and if the Court
considers that the subject-matter of the suit must be maintained
status quo, then discretion must be exercised in favour of the party
seeking temporary injunction, so, that the subject matter of the suit
in dispute can be preserved. In the instant case, admittedly all the
involved parties are co-shares/legal heirs of deceased owner of suit
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property. Thus, it can be said that plaintiff has been able to show
prima facie case in his favour. Balance of convenience also lies in
favour of the plaintiff. Court is also convinced that the plaintiff shall
suffer irreparable loss and injury, if interim protection is denied to
the plaintiff.
7. Accordingly, in the totality of circumstances, application
under Order XXXIX Rule 1 & 2 read with section 151 CPC moved
on behalf of plaintiff is disposed of as allowed. Defendants, their
agents, servants, employees, assignees etc. are restrained from
creating any third party interest in the suit property till, the disposal
of the suit.
8. Nothing stated herein above shall tantamount to expression of
opinion on the merits of the case.
9. Copy of this order be given
dasti to Ld. Counsels for both the
parties.
(Manu Vedwan)
DJ-02/North-East, KKD Courts,
Delhi/15.10.2024
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