Order 5

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: 28 CS SCJ 238/25 SMT. BIMLA Vs. PREM PRAKASH
SAINI
19.05.2025
Present: Sh. Nadeem Saifi, Ld. Counsel for plaintiff.
Sh. Mukesh Kumar Mishra, Ld. Counsel for
defendant.
Ms. Mithlesh, Ld. Counsel for defendant no.2/
MCD.
1. Status report has been filed on behalf of MCD.
Taken on record.
2. WS has been filed on behalf of defendant no.1.
Taken on record.
3. Ld. Counsel for plaintiff has pressed his
application U/o 39 rule 1 and 2 CPC seeking temporary
injunction to the effect that defendant be restrained from
raising any further construction in the suit property as shown
in red colour in site plan. It is stated that the defendant is
raising unauthorised construction in the said portion and the
same is causing risk to the safety of plaintiff.
4. No reply to the application has been filed by the
defendant no.1, however, it is argued that a previous suit for
partition filed by one Balwan Singh was dismissed qua the
same property and the plaintiff has no right to claim any
relief regarding the suit property. Upon inquiry, it is stated
that the possession of the plaintiff in the adjacent property to
the suit property is not disputed. However, it is argued that
the defendant no.1 is not raising any unauthorised
construction.
5. Status report has been filed by MCD, as per
which, the suit property has been booked for unauthorised
construction. Contd….2/-
-- 1 of 3 --
(2)
6. I have heard the submissions made by the
counsels and perused the pleadings, the interim application
under Order XXXIX Rules 1 and 2 CPC and the various
documents on record in entirety. At the very outset, it is
important to refer the law governing the grant of injunctions.
In the case of “
Gujrat 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 Rules 1 & 2
CPC, has observed as follows:
“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 in
his or her favor;
ii. Whether the balance of convenience is in
favour of the plaintiff;
iii. Whether the plaintiff would suffer an
irreparable injury if his or her prayer for
interlocutory injunction is disallowed.
7. In the instant case, the possession of the plaintiff in the
adjacent property to the suit property is not disputed and
from the photographs filed by the plaintiff, it is evident that
construction has been raised by the defendant in the suit
property. As per the status report of the MCD, the
construction so raised is unauthorised and thus, the plaintiff
has a prima facie case in his favour. The balance of
Contd…..3/-
-- 2 of 3 --
(3)
convenicence tilts in favour of the plaintiff as raising of any
further construction would definitely prejudice the plaintiff.
Needless to say, an irreparable injury would be caused to the
plaintiff, if the present application is not allowed.
Accordingly, the application U/o 39 rule 1 and 2 stands
allowed, the defendant is hereby restrained from raising any
further construction in the suit property i.e. portion in
H.No.151, Main Bawana Road, Village Shahbad Daulatpur,
Delhi as shown in red colour in the site plan till final disposal
of this suit.
8. Nothing stated above shall tantamount to any
findings on the merits of the case.
9. Plaintiff is directed to file replication, if any,
with advance copy to opposite party.
Be put up for completion of pleadings/further
proceedings on 22.09.2025.
(Nitish Kumar Sharma)
JSCC/ASCJ/GUDN. JUDGE
North Rohini, Courts,Delhi/19.05.2025
-- 3 of 3 --