Order 10

Order Details: COPY OF ORDER
Pdf Text: 40 CS SCJ 461/25
Prabhjeet Singh Vs. Nisha Devi
14.07.2026
Present: Shri Ritesh, Ld. Counsel for the plaintiffs with
plaintiff.
None for the defendant.
Matter is listed for orders on application u/o 39 rule
1 and 2 CPC on behalf of plaintiffs as well as defendant.
Vide common separate order, both the applications
u/o 39 rule 1 and 2 CPC stands dismissed.
Put up for arguments on application u/o 8 rule 1
CPC for condonation of delay on 07.10.2026.
(SAKSHI JAISWAL)
CIVIL JUDGE (NORTH)
ROHINI/DELHI/14.07.2026
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40 CS SCJ 461/25
Prabhjeet Singh Vs. Nisha Devi
14.07.2026
ORDER
1. Vide this common order, the court shall decide the
application of plaintiff u/o 39 rule 1 and 2 CPC as well as
application of defendant u/o 39 rule 1 and 2 CPC.
2. Facts, as stated, in brief are that the plaintiff no. 1 and 2
claim to be owner and in possession of third and second floor of
suit property respectively, while defendant is stated to be in
possession of the ground floor of the property. It is the case of
the plaintiff that the space in the front of the house of the
defendant (where electricity meter are installed) and the passage
leading to the stair case are common spaces. It is contended by
the plaintiffs that the defendants are in the business of vegetable
and fruit vending and they store their vegetables and fruit cartons
in the common space in the front of the house and that they put
their rehari in the common passage leading to the stair case. It
is further contended that the defendants store certain inflammable
goods near the electricity meters which are fire hazard and that
all the time there is bad smell from rotten fruits and vegetables. It
is also contended on behalf of plaintiffs that the defendant
permanently parks her car in front of the house and does not
allow the plaintiffs to park their car on that spot despite the fact
that all floors have equal rights. In light of these facts, the
plaintiffs pray for an interim injunction seeking direction to the
defendant to remove the car permanently parked in front of the
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house, to remove the blocking of access to electricity meters, to
remove the fruits and vegetables from the common space in front
of the house, and to restrain the defendant from using the
common space exclusively.
3. Per contra, it has been stated on behalf of the defendants
that there is no common area on the ground floor. It is further
submitted that the total area of land of 138 sq. yds is in the
possession of defendants and balcony area is defendant’s private
space and the plaintiffs have right to use the passage area only to
go to second and third floor. It is also submitted on behalf of
defendant that the defendant never stored any hazardous articles
in the balcony area and that there is also sufficient space for all
the residents to pass at any time. It is further submitted that the
plaintiffs regularly try to trespass into the defendant’s balcony
and also block the passage area by placing their two wheelers or
other items in that area which is illegal encroachment. The
defendant has also denied the existence of any right of the
plaintiffs to park their car in front of the house. The defendant
has also filed the application u/o 39 rule 1 and 2 CPC to restrain
the plaintiffs from encroaching, blocking, obstructing or
interfering with the defendant’s access to and use of common
areas, front parking area and common passage of the suit
property, and to direct the plaintiffs to remove their electricity
and water meter from the balcony wall of defendant.
4. Submissions heard. Record perused.
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5. It is settled law that while granting an interlocutory
injunction, the Court has to consider whether the plaintiff has a
prima facie case, whether the balance of convenience is in favour
of the plaintiff and whether the plaintiff would suffer an
irreparable injury, if the prayer for interlocutory injunction is
disallowed.
6. The law as regards the grant of interlocutory injunctions is
no longer res-integra. The Hon’ble Apex Court in M/S Gujarat
Bottling Co.Ltd. & Ors vs The Coca Cola Co. & Ors 1995 AIR
2372 has laid the following tests which ought to be fulfilled
while deciding the same:
“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. 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; and (iii) whether the plaintiff would suffer an
irreparable injury if his prayer for interlocutory injunction is
disallowed. The decision whether or not to grant an interlocutory
injunction has to be taken at a time when the existence of the
legal right assailed by the plaintiff and its alleged violation are
both contested and uncertain and its alleged violation are both
contested and uncertain and remain uncertain till they are
established at the trial on evidence. Relief by way of
interlocutory injunction is granted to mitigate the risk of
injustice to the plaintiff during the period before that uncertainty
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could be resolved. The object of the interlocutory injunction is to
protect the plaintiff against injury by violation of his right for
which he could not be adequately compensated in damages
recoverable in the action if the uncertainty were resolved in his
favour at the trial. The need for such protection has, however, to
be weighed against the corresponding need of the defendant to
be protected against injury resulting from his having been
prevented from exercising his own legal rights for which he could
not be adequately compensated. The court must weigh one need
against another and determine where the 'balance of
convenience' lies.”
7. Therefore, while exercising the discretionary power given
under Order 39 Rule 1 & 2 CPC, the Court had to satisfy that the
plaintiff has a prima facie case in his favour and that balance of
convenience also lies with the plaintiff and plaintiff would suffer
irreparable injuries which cannot be compensated if his prayer is
disallowed.
8. In the present case, the principal dispute between the
parties concerns the nature of balcony area and the passage area
i.e. whether these are common area or forms part of the exclusive
ownership of the defendant. The said issue involves adjudication
of rival claims based upon the title documents and other
evidences. It is pertinent to mention here that none of the parties
has placed any document on record to show that the disputed area
is a common area or not. Thus, in the absence of any document
or material on record, it cannot be ascertained even on prima
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facie basis that the disputed area is a common area or not, and
thus, neither party can be granted any relief with regard to
disputed area at this stage.
9. As regards the allegation regarding storage of fruits and
vegetables, the material presently placed on record is not
sufficient to conclusively establish nuisance. Furthermore, the
plaintiffs have nowhere stated as to what inflammable articles
were allegedly stored by the defendant near electricity meters.
Accordingly, the court does not considers it fit to grant interim
relief to any of the parties in respect of disputed area.
10. The plaintiffs have further sought removal of defendant’s
vehicle parked in front of the property. It is an admitted fact that
the defendant has been using the parking space for considerable
period. Whether the plaintiffs possess any legal right to use the
said area is itself a matter requiring evidence and any relief at
this stage thereby directing the defendant to remove their vehicle
would virtually amount to granting the final relief sought in the
suit. No case for grant of such mandatory interim relief is
accordingly made out.
11. As far as defendant’s relief seeking direction to the
plaintiff to remove the electricity and water meters is concerned,
this court is of the considered opinion that the interim relief
sought by the defendant forms a separate cause of action and
cannot be granted by virtue of application u/o 39 rule 1 and 2
CPC.
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12. In view of the aforesaid discussion, both the applications
u/o 39 rule 1 and 2 CPC of the plaintiffs and the defendant stand
dismissed. Applications stand disposed off accordingly.
Copy of order be given dasti, as prayed for.
(SAKSHI JAISWAL)
CIVIL JUDGE (NORTH)
ROHINI/DELHI/14.07.2026
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