Order 5

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. 167/2023
Chander Bhan …. Plaintiff
Versus
Monu & Ors. …. Defendants
09.07.2024
ORDER ON APPLICATION UNDER ORDER XXXIX RULE 1 &
2 READ WITH SECTION 151 OF CODE OF CIVIL
PROCEDURE 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 of Code of Civil
Procedure moved on behalf of plaintiff.
2. It is stated in the application filed under Order XXXIX Rule 1
& 2 read with section 151 of Code of Civil Procedure on behalf of
plaintiff that the contents of plaint be read as part and parcel of the
application. It is stated in the plaint that the plaintiff is the real
brother of defendant number 3. Defendant number 4 is the wife of
defendant number 3 and defendant number 1 is the son of defendant
number 3 and 4. It is stated that the father of plaintiff and defendant
number 3, Sh. Hulasi Ram had expired in the year 1993. It is stated
that at the time of death of Sh. Hulasi Ram, defendant number 3 was
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the rickshaw puller and it is the plaintiff who used to run the family
out of his earnings and hard work. It is stated that plaintiff,
defendant number 3 and Smt. Parvati Devi used to reside jointly and
she was having no source of income and was dependent upon the
plaintiff. On 17.05.1999, Smt. Parvati Devi purchased a plot
measuring 200 square yards from Sh. Ram Avtar out of the funds
and earnings of the plaintiff. The documents of property though
were executed in the name of defendant number 1 because of sheer
love and affection.
It is further stated that at the same time, it was understanding
between the plaintiff and defendant number 3 that the property in
question that is A-1.
Gali number 1,
Khasra number 186, Village
Chauhan Patti, Near Chauhan Patti Gate, Delhi (hereinafter referred
to as suit property) shall remain under the joint ownership of
plaintiff and defendant number 3. It is stated that Smt. Parvati had
expired on 12.05.2010 and after her death, on the request of
defendants, plaintiff got constructed the entire property in the form
of ground and first floor out of his own funds. It is stated that it was
assured by the defendants that half of the construction would be
refunded by the defendants to the plaintiff whenever the property
would be divided between the plaintiff and defendant number 3. It is
stated that since the year 2017, son of plaintiff is continuously
residing in the suit property without any obstructions of defendants.
It is further stated that in the year 2018, defendant number 1 and 2
started residing in the suit property in half of the portion at first
floor.
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It is further stated that on 02.08.2017, plaintiff inducted a
tenant in a shop on the ground floor and rent agreement was
executed by son of plaintiff in favour of tenant. On 03.09.2022
plaintiff let out two shops in the aforesaid property. On 01.12.2022
plaintiff requested the defendant number 1 and 3 to get partitioned
the suit property as was earlier agreed between the parties. On
28.01.2023 defendant number 3 was ready to partition the suit
property but, they kept on lingering the matter. It is further stated
that on 12.06.2023 plaintiff again contacted the defendants for
partition of suit property but, they flatly refused for the same.
Defendants are now threatening the plaintiff that they would sell,
transfer and alienating the suit property. It is therefore requested that
interim order be passed in favour of plaintiff and against the
defendants restraining them from selling, alienating and transferring
the suit property.
3. Defendants have also filed their reply in which it is stated by
them that the contents of written statement be read as part and parcel
of their reply. It is stated in the written statement that in the month
of March 1990, Late Hulasi Ram had already separated the plaintiff
and defendant number 3. Since then, both the brothers are living
separately from each other. The parents of plaintiff and defendant
number 3 used to live with the defendant number 3. In the year
1990, defendant had been doing the job in the private factory of Sh.
Kamal Singh and Sh. Bhup Singh. It is further stated that defendant
number 3 was earning handsomely from the private job in the
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factory and plaintiff had not given any funds to the mother for
purchasing the suit property. It is stated that suit property was
purchased by defendant number 3 and 4 in the name of defendant
number 1 out of their funds and earnings from Sh. Ram Avtar. Suit
property is basically the self acquired property of defendant number
3 and 4 which is in the name of defendant number 1. It is the
defendant number 1, 3 and 4 who out of their own earnings raised
the construction. It is stated that the plaintiff has no right, title or
interest in the suit property. It is therefore requested that the
application of plaintiff filed under Order XXXIX Rule 1 & 2 read
with section 151 of Code of Civil Procedure be dismissed.
4. I have heard the arguments advanced on behalf of both the
parties and have perused the documents filed on both sides.
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/her prayer for
temporary injunction is disallowed. This Court is required to see
prima facie case, balance of convenience as well as irreparable loss.
Order XXXIX Rule 1 & 2 CPC provides that when 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 grant temporary injunction to restrain to such an act or make
other order for the purpose of preventing the dispossession of the
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plaintiff/party or for the purpose of preventing the causing of injury
to the plaintiff/party in relation to any property in dispute. Thus,
injunction is the preventing relief and is generally granted, taking
note of equity. Also, passing of interim order in favour of
plaintiff/party is only for the limited purpose of securing interest of
the plaintiff/party. Due care and caution has to be bestowed by the
Court while granting or refusing an injunction as it may affect the
final disposal of the suit.
6. Measure should be taken by the Court to ensure even-handed
justice to both the parties. Thus, the granting of an ad-interim
injunction is purely with the discretion of the Court, but the
discretion has to be exercised in accordance with the sound judicial
principles. It is a settled principle of law that injunction or interim
orders are issued not on grace or on default of any person. Interim
orders are granted on the basis of the case made out
prima facie in
the pleadings and that in the interest of justice such interim order is
necessary in order to prevent abuse of process of law to prevent
wastage or to maintain the situation as on date or from recurrence of
certain incident which were existing as on the date of presenting
such application out of which the proceeding is arising. The Court is
called upon to see whether the party who has approached the Court
has a plausible case and whether there is a possibility of such case
succeeding at the trial. If that test is satisfied then it is the duty of
the Court to see whether the damages that the plaintiff is likely to
suffer for the action of the defendants complained of can be
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compensated in money and if so whether there is a standard for
ascertaining such compensation. If such compensation can be
ascertained, then the interlocutory order of injunction should
normally be refused. However, if the Court is of the view that such
compensation cannot be ascertained then it is the duty of the Court
to see the balance of convenience and inconvenience of the parties.
In the instant case, admittedly, the suit property is in the name of
defendant number 1. Plaintiff has unable to show
prima facie case in
his favour viz. alleged occupant of property neither it is shown that
the plaintiff would suffer irreparable injury. Therefore, in light of
these facts and also in view of detailed foregoing discussion, the
Court has no hesitation to hold that plaintiff is unable to show any
prima facie case exist in his favour. Accordingly, the application
under Order XXXIX Rule 1 & 2 read with section 151 of Code of
Civil Procedure filed on behalf of plaintiff is hereby dismissed.
7. Nothing stated herein above shall tantamount to expression of
opinion on the merits of the case.
8. Copy of this order be given
dasti to Ld. Counsels for both the
parties.
(Manu Vedwan)
District Judge-02/North-East,
KKD Courts, Delhi/09.07.2024
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