Order 2

Order Details: COPY OF ORDER
Pdf Text: Civ Suit 85/23
Ashok Kumar Vs. AU Small Finance Bank Ltd
22.02.2023
At 10:00 am
Present: Sh. Sarvesh Singh, Ld. Counsel for plaintiff.
Sh. Sandeep Sharma, Ld. Counsel for defendant
along with AR Sh. Sandeep Singh.
Arguments advanced by both parties.
Be put up for clarifications, if any/orders at 02:00 pm.
Vasundhara Azad
ACJ-cum-ARC-cum-CCJ
North-East/Karkardooma Courts
Delhi/22.02.2023
At 02:00 pm
Present: Sh. Sarvesh Singh, Ld. Counsel for plaintiff.
Sh. Sandeep Sharma, Ld. Counsel for defendant
along with AR Sh. Sandeep Singh.
Clarifications advanced.
Be put up for further clarifications, if any/orders at
03:30 pm.
Vasundhara Azad
ACJ-cum-ARC-cum-CCJ
North-East/Karkardooma Courts
Delhi/22.02.2023
At 03:30 pm
Present: Sh. Sarvesh Singh, Ld. Counsel for plaintiff.
None for defendant.
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Vide this order, the undersigned shall decide the
application under Order 39 Rule 1 and 2 CPC filed by Ld. Counsel
for the plaintiff. Reply not filed. Ld. Counsel for the defendant has
submitted that he will straightway argue on the aforesaid
application.
By way of background, it is the case of the plaintiff that
he purchased property being H. no. C/48 admeasuring 50 sq. yards
in Khasra No. 957/249, Gali no. 3/24, Harijan Basti, Gokalpur, Ilaqa
Shahdara, Delhi (“Suit Property”) on 02.12.2008 from Smt. Kamla
Devi by way of GPA/agreement to sell/will/receipt etc. which are
already on record. It is the grievance of the plaintiff that the
defendant, in pursuance of an order dated 12.01.2023 passed by Ld.
CMM/North-East, is trying to take possession of the Suit Property
by misleading the Court Receiver as the Suit Property is different
from the property with respect to which the aforesaid order was
passed by Ld. CMM. Pertinently, the aforesaid order relates to
property bearing no. C-48, Village Gokalpur, Khasra No. 958/249,
Gali no. 3/24, Ilaqa Shahdara, Delhi and therefore vide the present
application under Order 39 Rule 1 and 2 CPC moved by plaintiff, it
is prayed that since the Suit Property relates to Khasra No. 957/249,
the defendant be restrained from taking possession of the same. It is
also submitted by the plaintiff that his daughter who is studying in
class XII has her upcoming exams within a few days and hence the
relief of temporary injunction, as prayed for, be granted in his
favour.
Ld. Counsel for the defendant has disputed the
aforesaid and stated that plaintiff is not the owner of the Suit
Civ Suit 85/23 Ashok Kumar Vs. AU Small Finance Bank Ltd Page no. 2 of 6
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Property which is in the name of Sh. Kapil Kumar, who is the
brother of the plaintiff. It is further submitted by Ld. Counsel for the
defendant that the Suit Property was transferred to Sh. Kapil Kumar
by Smt. Sheela Devi who is mother of the plaintiff and of Sh. Kapil
Kumar vide a gift deed dated 30.07.2019. Further, it is also
submitted that Smt. Sheela Devi was owner of the aforesaid
property vide GPA/agreement to sell/receipt/will etc. dated
04.08.1989. Aforesaid gift deed/GPA/agreement to sell/receipt/will
etc. along with DRT order dated 16.02.2023 as well as order dated
12.01.2023 passed by Ld. CMM/North-East have been filed by Ld.
Counsel for the defendant.
I have heard arguments of both the parties on the
aforesaid application at length and perused the record.
The guiding principle with respect to grant of
temporary prohibitory injunction were laid down by the Hon'ble
Supreme Court of India in Seema Arshad Zaheer and Others v
Municipal Corporation of Greater Mumbai and Others, (2006) 5
SCC 282, wherein the Hon'ble Supreme Court of India
observed;“30. The discretion of the Court is exercised to grant a
temporary injunction only when the following requirements are
made out by the plaintiff; (i) existence of a prima facie case as
pleaded, necessitating protection of the plaintiff's rights by issue of
a temporary injunction; (ii) when the need for protection of the
plaintiffs rights is compared with or weighed against the need for
protection of the defendants rights or likely infringement of the
defendant's rights, the balance of convenience tilting in favour of
the plaintiff; and (iii) clear possibility of irreparable injury being
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caused to the plaintiff if the temporary injunction is not granted. In
addition, temporary injunction being an equitable relief, the
discretion to grant such relief will be exercised only when the
plaintiffs’ conduct is free from blame and he approaches the
Court with clean hands.”
So, accordingly, in addition to the fact that the
plaintiff’s conduct is free from blame, the very first point that has to
be decided is whether the plaintiff has a prima facie case in his
favour. From perusal of the record, in the present matter, it is
observed that plaintiff has not filed site plan with respect to the
property bearing Khasra no. 958/249 which he is alleging to be
different from the Suit Property. Further, perusal of the record also
reveals that boundaries of the Suit Property that are specified in the
GPA in favour of the plaintiff co-incide with the boundaries of the
property that has been transferred by way of gift deed by Smt.
Sheela Devi in favour of Sh. Kapil. Additionally, it is observed that
the GPA as well as agreement to sell filed by the plaintiff to
establish his ownership over Suit Property do not bear his signatures
apart from also being unregistered. Accordingly, no prima facie case
has been established by the plaintiff establishing his right to the Suit
Property. Further, plaintiff has also not disclosed the factum of Sh.
Kapil Kumar being his brother and Smt. Sheela being his mother
with respect to whom the order dated 12.01.2023 was passed by Ld.
CMM/North-East and also by the DRT on 16.02.2023 qua property
bearing no. C/48 in Khasra No. 958/249, Gali no. 3/24, Ilaqa
Shahdara, Delhi. Therefore, it is observed that the plaintiff has not
approached the court with clean hands.
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Hon'ble Supreme Court of India in Kashi Math
Samsthan v. Srimad Sudhindra Thirtha Swamy 2010 AIR (SC) 296
has held that; “ it is well settled that in order to obtain an order of
injunction, the party who seeks for grant of such injunction has to
prove that he has made out a prima facie case to go for trial, the
balance of convenience is also in his favour and he will suffer
irreparable loss and injury if injunction is not granted. But it is
equally well settled that when a party fails to prove prima facie case
to go for trial, question of considering the balance of convenience
or irreparable loss and injury to the party concerned would not be
material at all, that is to say, if that party fails to prove prima facie
case to go for trial, it is not open to the Court to grant injunction in
his favour even if, he has made out a case of balance of convenience
being in his favour and would suffer irreparable loss and injury if
no injunction order is granted."
Accordingly, the court is of the opinion that since
along with the fact that the plaintiff has not approached the court
with clean hands, the plaintiff also does not have a prima facie case
in his favour, in view of the judgment of Hon'ble Supreme Court in
Kashi Math Samsthan's case (supra), question of considering the
balance of convenience or irreparable loss and injury to the party
concerned does not arise. Hence, the application of the plaintiff
under Order 39 rule 1 and rule 2 CPC dated 20.02.2023 is
dismissed.
Let the WS be filed by the defendant as per the
provisions of CPC with advance copy to the plaintiff/counsel.
Perusal of record also reveals that an application under Order 7 Rule
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11 CPC has been filed by the defendant. Be put up for
reply/submissions, if any, on the aforesaid application as well as for
completion of pleadings for 06.04.2023. Copy dasti, at request.
Vasundhara Azad
ACJ-cum-ARC-cum-CCJ
North-East/Karkardooma Courts
Delhi/22.02.2023
At 03:45 pm
Sh. Sandeep Sharma, Ld. Counsel for defendant along
with AR Sh. Sandeep Singh have appeared. They are apprised of the
proceedings and the next date of hearing.
Vasundhara Azad
ACJ-cum-ARC-cum-CCJ
North-East/Karkardooma Courts
Delhi/22.02.2023
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