Interim Order 7

Order Details: COPY OF ORDER
Pdf Text: CS DJ 913 /2024 SOURABH MITTRA Vs. DEVENDER NATH MITTRA Page No.1/3
CS DJ 913 /2024
SOURABH MITTRA Vs. DEVENDER NATH MITTRA
13.05.2026
ORDER ON APPLICATION U/O 39 RULES 1 & 2 CPC
1. Counsel for the plaintiff presses his application U/o 39 Rules 1 & 2 CPC
dated 24.09.2024.
FACTUAL MATRIX
2. The defendant is Chacha of plaintiff. Plaintiff is residing in First Floor of
Property bearing No.9A/155, Old Gupta Colony, Delhi. Defendant is stated to be
owner of H. No.10A/155, Old Gupta Colony, Delhi. However, defendant is in
possession of second floor of Property bearing No.9A/155, Old Gupta Colony,
Delhi (hereinafter referred to as ‘Suit Property’)
3. Plaintiff is seeking possession of suit property, mesne profit, relief of
permanent injunction.
FIRST ARGUMENT :
4. Counsel for plaintiff contends that admittedly, defendant is in possession
of suit property. In what capacity defendant is in possession will be a moot point
during the trial. Compromise dated 10.04.2018 between the parties is admitted.
Limited prayer is for preserving the suit property and restraining defendant from
parting the possession, disposing of or creating third party interest over the suit
property.
5. Per contra, counsel for defendant contends that the settlement agreement
was not pursued by the plaintiff.
6. It is further argued by the counsel for the defendant that the suit property
was constructed by the defendant out of his own funds and thus application of
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plaintiff be dismissed.
SCOPE OF INTERVENTION BY COURT :
7. 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.”
APPLYING THE ABOVE CONSIDERATIONS TO FACTS OF PRESENT CASE
8. This court has heard the rival submissions of the parties and perused the
relevant record with their assistance. The Court has considered the probability of
success in the trial and the comparative strength of the cases of the respective parties
before it.
9. The Court has considered that it is not necessary for the plaintiffs 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.
FINDINGS ON FIRST ARGUMENT :
10. Admittedly, defendant is in possession of suit property. As to in what
capacity defendant is in possession will be a moot point during the trial.
Compromise dated 10.04.2018 between the parties is admitted. Limited prayer is
for preserving the suit property and restraining defendant from parting the
possession, disposing of or creating third party interest over the suit property. In
view of the prima facie case and balance of convenience being in favour of the
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plaintiff. In considered opinion of the court, this relief ought to be granted.
Plaintiff will suffer irreparable injury, if suit property is alienated. Same will
cause multiplicity of proceedings.
11. Submissions on behalf of the defendant that the settlement agreement was
not pursued by the plaintiff, will be a moot point during the trial. Suffice to state
at this stage that in para 8 of the plaint, it is specifically averred that on several
occasions, plaintiff approached the defendant for giving properties to mutually
agreed Builder. Defendant started constructing property No.10A/155 without
permission of plaintiff.
12. Further submissions on behalf of the defendant that the suit property was
constructed by the defendant out of his own funds and thus application of plaintiff
be dismissed, are without merits. At this stage, it is necessary to preserve the suit
property.
13. To sum up, application under Order 39 Rules 1 & 2 CPC dated
24.09.2024, is disposed off with directions to restrain the defendant from parting
the possession, disposing of or creating third party interest over the suit property.
(VIKRAM BALI)
DISTRICT JUDGE-02/NORTH/ROHINI
DELHI/13/05/2026
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