Order 2

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF ADDITIONAL DISTRICT JUDGE-02:
NORTH ROHINI COURTS COMPLEX: DELHI
IN THE MATTER OF:-
CS DJ No. 800 - 2023
SURJEET SINGH VS. H.K. SACHDEVA AND ORS.
18.11.2023
ORDER ON APPLICATION
1. Vide this order, I shall dispose off an application u/o XXXIX Rule 1 and 2
CPC, filed by the plaintiff.
PLAINTIFF’S CASE :
2. The plaintiff has filed the present suit for Partition and Permanent
Injunction. The suit property is two bighas land out of Khasra No.265,
Village Sahibabad Daulatpur / Sahibabad and another one bigha (herein after
referred as suit property).
3. It is the case of the plaintiff that one bigha out of Khasra No.265, Village
Sahibabad Daulatpur / Sahibabad was purchased by plaintiff after paying
Rs.10 lacs (Ten Lacs) from Smt. Sumitra Aggarwal. He relies upon GPA,
Possession Letter and Receipt dated 06.06.2023.
4. It is the case of the plaintiff that remaining one bigha land out of Khasra
No.265, Village Sahibabad Daulatpur / Sahibabad was purchased from Sh.
Kailash Kumar Gupta s/o late Sh. Rohtash Kumar Gupta through GPA,
Possession Letter and Receipt dated 29.05.2023.
5. It is the case of the plaintiff that defendants are trying to dispossess the
plaintiff from the suit property and hence, it is prayed that defendants be
restrained from interfering from peaceful possession of the plaintiff over the
suit property.
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6. It is the case of the plaintiff that property of the defendants has vested in
Gram Sabha and the defendants are now interfering with the possession of
the plaintiff.
Defendants No.1, 3 and 4 are yet to be served.
DEFENDANT No.2’s CASE :
7. Ld. counsel for the defendant No. 2 has contended that in view of law laid
down in Suraj Lamp’s case, the documents relied upon by the plaintiff, do
not confer any title. The prayer in present suit, is for Partition for which, title
is to be established.
8. Ld. counsel for the defendant No. 2 contends that Sunita Sobti had
purchased one bigha out of Khasra No.265 from Sh. Mahender Singh having
private plot No. 32 vide registered sale deed dated 28.03.1989.
9. Ld. counsel for the defendant No. 2 states that the Judgment bearing RSA
No.22/2016 titled as Ramchandran and Ors. vs. Omanakuttan and Ors.,
decided on 26.08.2021 is distinguishable as the plaintiff is merely a GPA
Holder whereas the defendant has sale deed dated 28.03.1989 in his favour.
SCOPE OF INTERVENTION BY COURT :
10. In the case of Gujarat 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
Rule 1 & 2 CPC, has held that:
“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;
(ii) Whether the balance of convenience is in favour of the plaintiff;
(iii) Whether the plaintiff would suffer an irreparable injury if his prayer for
interlocutory is disallowed.”
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APPLYING THE ABOVE CONSIDERATIONS TO FACTS OF
PRESENT CASE WHETHER THE PLAINTIFF HAS A PRIMA
FACIE CASE;
11. I have heard the rival submissions of the plaintiff and defendant No.2. Rest
of the defendants are yet to be served but the plaintiff has pressed his
application under order XXXIX Rule 1 & 2 CPC.
12. The court has heard the ld. Counsels for the parties and is of the opinion that
service upon other defendants, is also necessary as they are parties to the
suit. The plaintiff has pressed for decision on the application u/o XXXIX
Rule 1 & 2 CPC today itself, therefore, based upon material on record, the
application is being considered and arguments heard.
13. In totality of the circumstances, it prima facie appears that there is no case
for grant of interim injunction in favour of the plaintiff. The plaintiff is
merely having GPA, Possession Letter in his favour which do not confer
title. Reliance is placed upon case titled as Suraj Lamp Industries Pvt.
Ltd. vs. State of Haryana. (2012) I SCC 656 that even though, GPA,
Agreement to Sell do not confer title but a suit for Specific Performance on
the basis of Agreement to Sell can be filed.
14. The arguments by the ld. Counsel for the plaintiff that on the basis of
possessory title, suit for Partition can be filed, is legally correct. But
factually, no document except Possession Letter is there on record to show
the Possession of the plaintiff. The court is of the considered opinion that
prima facie case has not been established by the plaintiff.
15. This court has considered probability of plaintiff success in the trial and the
comparative strength of the cases of the respective parties before it. Ld.
counsel for the defendant No. 2 contends that Sunita Sobti had purchased
one bigha out of Khasra No.265 from Sh. Mahender Singh having private
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plot No. 32 vide registered sale deed dated 28.03.1989. Thus, the defendant
No.2 is having a registered document in his favor i.e. Sale Deed dated
28.03.1989.
16. This Court is of the opinion, in the absence of the prima facie case, no order
of restraining the defendants from interfering with peaceful possession qua
the suit property, deserves to be passed.
17. No irreparable injury to plaintiff is demonstrated. Injury, if any, to the
plaintiff can be compensated in terms of money.
CONCLUSION :
18. In totality of circumstances, the application u/o XXXIX Rule 1 and 2 CPC
by the plaintiff is dismissed on account of absence of prima facie case in
plaintiff’s favour. However, nothing stated in the order shall affect the merits
of the case.
Application u/o XXXIX Rule 1 & 2 CPC filed by the plaintiff, stands
dismissed.
(Vikram Bali)
Addl. District Judge-02, North
Announced in the open Court. Rohini Court Complex, Rohini
(Order contains 4 pages) Delhi/18.11.2023
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