Interim Order 5

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: 1
CS DJ 11/24
SHIV PRATAP SINGH Vs. DELHI URBAN SHELTER
IMPROVEMENT BOARD
21.01.2025
Present: Sh. Amit Shrivastav, LAC counsel for the plaintiff.
Sh. Munish Kumar counsel for the defendant no. 1.
Sh. Madan Kumar Jha, counsel for proposed defendant/Sh. Ranjeet
Sah.
Counsel for the proposed defendant has filed an application under
order 1 rule 10 CPC. Copy supplied.
Counsel for defendant no.1 has supplied legible copies of documents
which were filed with the written statement to counsel for the plaintiff.
Counsel for the plaintiff seeks time to file reply to application under
order 1 rule 10 CPC.
Counsel for the plaintiff presses his application under order 39 rule 1
and 2 CPC. Arguments heard.
To come up for orders during course of the day.
(VIKRAM BALI)
DISTRICT JUDGE-2/NORTH/ ROHINI
COURT/DELHI/21.01.2025
ORDER ON APPLICATION
Vide this order, Court shall dispose of an application dated 10.07.2023
u/o 39 Rule 1 and 2 CPC, filed by the plaintiff.
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PLAINTIFF’S CASE :
1. The plaintiff has filed the present suit for mandatory injunction restraining
defendants and their agents etc. from dispossessing plaintiff from suit
property. Suit property is admeasuring around 26 sq. yards bearing house
no. 74, E Block, JJ Colony, Sector 25, Rajapur Kalan Rohini,
Delhi-110085. (hereinafter referred to as suit property).
2. It is the case of the plaintiff that original alottee of suit property was Smt.
Atula Devi. Mother of the plaintiff namely Smt. Indira Devi purchased the
suit property vide registered GPA, Agreement to sell, Will, Affidavit,
possession letter from Smt. Atula Devi. Smt. Indira Devi died on
31.12.2019.
3. It is the case of the plaintiff that on 18.12.2023 some persons claiming to
be officials from respondent came. They harassed the plaintiff’s wife.
Plaintiff was beaten by Satish Rana, beat police official. Abusive language
was used. Plaintiff was attempted to be forcibly evicted from suit property.
The present suit was filed seeking direction that defendants may not
dispossess the plaintiff.
DEFENDANTS CASE
4. It is the case of the defendant that it is a statutory body. As per available
records, the suit property was allotted to Atulika Shrivastav. Same was
on licence basis. Ownership rights are of answering defendant. Allottee
had no right to let out or transfer the plot.
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5. It is argued that no documents have been appended with the plaint. Even
if there was theft of documents, the registered GPA could have been
procured from registrar’s office.
6. It is further argued that the persons against whom allegations are made
have not been impleaded in personal capacity.
7. It is further argued that under DUSIB Act 2010 the officials of DUSIB can
take help of police and take possession. Reliance is placed upon order dated
18.04.2013passed by chief executive officer DUSIB. Same provides that
Executive Engineers should have close llaison with the local SHO and
SDM; and in case of necessity their assistance should be sought.
8. It is further argued that a letter dated 25.09.2023 has been received from
son of the original allottee who has intimated DUSIB that the suit
property is in illegal possession and the possession be granted to him.
9. It is further argued that it is only on 30.06.1998 that suit property was
allotted to Smt. Atulika by DUSIB so the averment in para 3 of the plaint
that plaintiff has been residing in suit property since 1997 is false.
10.It is further argued that plaintiff in para no. 3 claims to have purchase suit
property from one Atula Devi which documents are not on record as they
have been stated to be misplaced.
11. It is further argued that in the allotment letter it is specifically mentioned in
point no. 12 as under:
“WARNING: Sale and purchase of this plot is illegal the allottee
has no ownership right on the plot as per the orders of the High
Court in C.M.P. No. 267 & 464/93. Therefore allotment of the
plot will be cancelled automatically if found using by any person
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other than allottee & his/her family members such persons will be
evicted from the said plot without any show cause notice.”
12. It is further argued that in para 3 of the plaint even date of the documents
allegedly executed by Smt. Atula Devi in favour of Indra Devi mother of
the plaintiff has not been mentioned. Documents are not on record. No
cause of action has arisen in favour of plaintiff.
SCOPE OF INTERVENTION BY COURT :
13. 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 hisprayer for
interlocutory is disallowed.”
APPLYING THE ABOVE CONSIDERATIONS TO FACTS OF
PRESENT CASE ;
14. This court has heard the rival submissions of the parties and perused the
relevant record with their assistance. The Court has considered the
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probability of success in the trial and the comparative strength of the cases
of the respective parties before it. The Court has considered that it is not
necessary for the plaintiff to prove his case to the hilt and if a fair question
is raised for determination, it should be taken that a prima facie case has
been established.
15. Perusal of the record shows that plaintiff has filed the present suit for
mandatory injunction restraining defendants and their agents etc. from
dispossessing plaintiff from suit property. Suit property is admeasuring
around 26 sq. yards bearing house no. 74, E Block, JJ Colony, Sector 25,
Rajapur Kalan Rohini, Delhi-110085. (hereinafter referred to as suit
property).
16. Perusal of the record shows that it is case of the plaintiff that original
alottee of suit property was Smt. Atula Devi. Mother of the plaintiff
namely Smt. Indira Devi purchased the suit property vide registered GPA,
Agreement to sell, Will, Affidavit, possession letter from Smt. Atula Devi.
Smt. Indira Devi died on 31.12.2019.
17. Perusal of the record shows that it is the case of the plaintiff that on
18.12.2023 some persons claiming to be officials from respondent came.
They harassed the plaintiff’s wife. Plaintiff was beaten by Satish Rana,
beat police official. Abusive language was used. Plaintiff was attempted to
be forcibly evicted from suit property. The present suit was filed seeking
direction that defendants may not dispossess the plaintiff.
18. Defendant is a statutory body. As per available material on record filed by
the defendant, the suit property was allotted to one Atulika Shrivastav.
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Same was on licence basis. Ownership rights are of answering defendant
i.e. DUSIB. Allottee had no right to let out or transfer the plot.
19.It is rightly argued by counsel for the defendant that no documents have
been appended with the plaint showing ownership or title of the plaintiff. It
is further rightly contended by counsel for the defendant that even if there
was theft of documents, the registered GPA could have been procured from
registrar’s office.
20.It is further rightly argued by counsel for the defendant that the persons
against whom allegations are made have not been impleaded in personal
capacity.
21.It is further rightly argued by counsel for the defendant that under DUSIB
Act 2010 the officials of DUSIB can take help of police and take
possession. Reliance is rightly placed upon order dated 18.04.2013 passed
by chief executive officer DUSIB. Same provides that Executive
Engineers should have close llaison with the local SHO and SDM; and in
case of necessity their assistance should be sought.
22.It is further rightly argued that a letter dated 25.09.2023 has been received
from son of the original allottee who has intimated DUSIB that the suit
property is in illegal possession and the possession be granted to him.
23. It is further rightly argued by counsel for the defendant that it is only on
30.06.1998 that suit property was allotted to Smt. Atulika by DUSIB so the
averment in para 3 of the plaint that plaintiff has been residing in suit
property since 1997 is false. This shows that plaintiff has not come to the
court with clean hands.
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24. It is further rightly argued by counsel for the defendant that plaintiff in para
no. 3 claims to have purchase suit property from one Atula Devi which
documents are not on record as they have been stated to be misplaced.
Further the origina allottee is not Atula Devi which is clear from record file
by counsel for the defendant. Thus plaintiff does not have any prima facie
case.
25. It is further rightly argued by counsel for the defendant that in the allotment
letter it is specifically mentioned in point no. 12 as under:
“WARNING: Sale and purchase of this plot is illegal the allottee has no
ownership right on the plot as per the orders of the High Court in C.M.P.
No. 267 & 464/93. Therefore allotment of the plot will be cancelled
automatically if found using by any person other than allottee & his/her
family members such persons will be evicted from the said plot without
any show cause notice.”
26. It is further rightly argued by counsel for the defendant that in para 3 of the
plaint even date of the documents allegedly executed by Smt. Atula Devi in
favour of Indra Devi mother of the plaintiff has not been mentioned.
Documents are not on record. Thus plaintiff has failed to show any prima
facie case in his favour.
27. This court has considered probability of plaintiff success in the trial and the
comparative strength of the cases of the respective parties before it. This
Court is of the opinion that the prima facie case has not been established by
the plaintiff . At this stage of the case, when the facts are in a state of flux in
this courts humble opinion, plaintiff is not entitled to interim directions in
his favour.
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28. Balance of convenience lies in favor of defendants. Public property of
which ownership vests with defendant is involved. The inconvenience
caused to plaintiff by not granting injunction will be lesser to the
inconvenience caused to defendant by grant of injunction.
29. Irreparable injury to plaintiff is demonstrated. Injury, if any, to the plaintiff
can be compensated in terms of money as per law.
CONCLUSION :
30. In totality of circumstances, the application u/o XXXIX Rule 1 and 2 CPC
by the plaintiff is dismissed. However, nothing stated in the order shall
affect the merits of the case.
31. Application stands dismissed.
32. Now to come up for reply with advance copy to counsel opposite and
arguments on application under order 1 rule 10 CPC on 14.02.2025.
(Vikram Bali)
District Judge-02, North
Announced in the open Court Rohini Court Complex, Rohini
(Order contains 8 pages) Delhi/21.01.2025
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