Order 8

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF MS. MANSI MALIK, ADMINISTRATIVE
CIVIL JUDGE-cum-ADDITIONAL RENT CONTROLLER:
NORTH-WEST DISTRICT: ROHINI DISTRICT COURTS
CS SCJ 1337/2024
Rekha Vs. Aaushi
ORDER ON THE APPLICATION UNDER ORDER 39 RULE 1 & 2
CPC.
(1) Briefly stated, it is the case of the plaintiffs that they are the
absolute owners of the property bearing no. BD 9, Pitampura, Delhi
admesasuring 253 sq. meters and that as the said property was under
construction, they were residing on rent at HP-7, Upper Ground
Floor, Pitampura, Delhi at the time of filing of the present suit.
However, it is apprised by the counsel for the plaintiff that after the
present suit was filed, the plaintiffs have vacted the rented premises
and have again shifted to property bearing no. BD 9, Pitampura,
Delhi. The plaintiffs also claim to be owners of half undivided share
in four storey building bearing no. 2046, land measuring area 158.5
sq. yards out of the total land measuring 317 sq. Yards situated at
Colony/ Abadi known as old Anaaz Mandi, Narela, Delhi-110040.
(2) It is further submitted that defendant no. 1 is the daughter in
law of the plaintiffs and defendant no. 2 to 5 are the father, mother
and brothers of defendant no. 1. It is further submitted that the
behaviour of defendant no. 1 changed drastically towards the
plaintiffs and that she started quarrelling with the sons of the plaintiff
and started pressurizing him to file a partition suit against plaintiff no.
2. Thereafter, the father and mother of defendant no. 1 took her to her
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parental home. Because of the behaviour of the defendants, the
plaintiff decided to severe all ties with their son and his wife i.e.
defendant no. 1 and in furthance of the same made a declaration dated
29.06.2024, which was published in various national newspapers. It is
also stated that the son of the plaintiffs is residing separately and not
with the plaintiffs. Further, the plaintiffs also lodged a written
complaint dated 23.07.2024 to the DCP, North West Delhi stating all
the atrocities and ill doings of the defendants. It is also submitttd by
the Ld. Counsel for the plaintiff that during the course of the present
proceedings, a FIR under Section 376 IPC has also been filed by the
defendant no.1 against petiioner no. 2. It is therefore prayed that all
the defendants be restrained from entering upon the above stated two
properties during the pendency of the suit.
(3) Per contra. Ld. Counsel for the defendants submits that the
plaintiffs in their entire plaint have failed to show how the peaceful
possession of the plantiffs over the properties in question is being
threatened by the defendants. Hence, it is submitted that no cause of
action is made out in the case of hand. It is further submitted that the
interim relief claimed by the plaintiff is the same as final relief and
that grant of the interim relief would tantamount to grant of the final
relief by the Court. The Ld. Counsel for the defendants has also
placed on record judgments to support his stance. It is thus prayed
that the application in question be dismissed.
(4) Heard. Considered. Record perused.
(5) It is a well settled law that for proving himself to be entitled
to a temporary injunction, the plaintiff has to prove three things: -
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(i) That a strong
prima facie case is made out in his favour.
(ii) That the balance of convenience also lies in his favour.
(iii) That the refusal of injunction will cause irreparable injury
to him.
(6) In the instant case, the relief to restrain defendants as sought by
the plaintiff at this interim stage is identical in nature to the final
relief sought in the plaint. Therefore, the same cannot be granted
unless extraordinary circumstances are made out.
(7) In this regard, I find it necessary to refer to the judgement of
Honorable Apex Court in judgement titled
Deoraj V. State Of
Maharashtra & Ors 2004 SC wherein the court laid as follows:
“Situations emerge where the granting of an interim relief
would tantamount to granting the final relief itself. And then
there may be converse cases where withholding of an interim
relief would tantamount to dismissal of main petition itself;
for, by the time the main matter comes up for hearing there
would be nothing left to be allowed as relief to the petitioner
though all the findings may be in his favour. In such cases the
availability of a very strong prima facie case of a standard
much higher than just prima facie case, the considerations of
balance of convenience and irreparable injury forcefully tilting
the balance of case totally in favour of the applicant may
persuade the Court to grant an interim relief though it amounts
to granting the final relief itself. Of course, such would be rare
and exceptional cases. The Court would grant such an interim
relief only if satisfied that withholding of it would prick the
conscience of the Court and do violence to the sense of justice,
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resulting in injustice being perpetuated throughout the hearing,
and at the end the Court would not be able to vindicate the
cause of justice.”
(8) Thus, the law is clear that a relief at interim stage which may
amount to granting the final relief itself, can be granted only if the
parameters as discussed in the above said judgment are fulfilled in the
facts of a particular case.
(9) In the instant case, the plaintiffs have placed on record the sale
deed executed in favour of petitioner no.1/Rekha with regard to the
property bearing no. BD 9, Pitampura Delhi ad-measuring 253 sq.
meters to establish their right over the said property. The plaintiffs
also claim to be owners of half undivided share in four storey
building bearing no. 2046, land measuring area 158.5 sq. yards out of
the total land measuring 317 sq. yards situated at Colony/ Abadi
known as old Anaaz Mandi, Narela, Delhi-110040. To establish their
right over the said property, they have placed on record
relinquishment deed qua the property in question in favour of
petitioner no. 2/Arun Kumar. Therefore, the claim of the plaintiffs
with regard to the aforementioned two properties, that the defendants
have no right upon the suit property seems plausible and accordingly,
a prima facie case is made out in their favour.
(10) Further, the plaintiffs have submitted that the defendants are
not in the possession of any of the two properties and that only the
plaintiffs have a right over the said properties. The factum of
possession is not disputed by the defendants as they have admitted
that defendant no. 1 i.e. daughter in law of the plaintiffs is not
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residing with the plaintiffs and is residing at her parental house with
her parents. Therefore, the rights of the defendants cannot be said to
be prejudiced if they are restrained from visiting the suit property
without the permission of the plaintiffs. Therefore, balance of
convenience is also inclined towards the plaintiff.
(11) Lastly, the plaintiffs have made serious allegations against the
defendants, especially qua defendant no. 1 of physical and verbal
assault. The plaint is also supported by the complaint made by the
plaintiffs to the DCP concerned. Infact, it has also been submitted
before the Court that a FIR u/s 376 IPC has also been filed by the
defendant no.1 against her father in law/plaintiff no.2. Thus, it cannot
be said that plaintiffs have failed to show how their peaceful
possession over the properties in question is being threatened by the
defendants. Further, without making any comment upon the truth of
submissions made by the plaintiffs or the defendants, this court is of
the view that relationship between the parties is intensely disturbed
and if the defendants are not restrained from visiting the properties in
possession of the plaintiffs, plaintiffs are likely to suffer further
discomfort and mental trauma, which is an irreparable loss and
cannot be compensated in monetary terms.
(12) The question whether defendant no. 1 has a right to reside in
the properties in question being her matrimonial house, cannot be
answered at this juncture and to answer the same, trial is required.
The Court at this stage has to balance the interests of both the sides.
Thus, keeping in view that admittedly defendant no. 1 is residing with
her parents at present and the factors discussed above, the Court is of
the considered opinion that this is a fit case to grant interim relief,
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even though it may amount to granting of the final relief itself.
(13) Accordingly, the present application under Order 39 rule 1 and
2 CPC is allowed.
The defendants are restrained from entering upon
the suit properties i.e. BD 9, Pitampura, Delhi admesasuring 253 sq.
Meters and four storey building bearing no. 2046, land measuring
area 158.5 sq. yards out of the total land measuring 317 sq. yards
situated at Colony/ Abadi known as old Anaaz Mandi, Narela,
Delhi-110040 and from creating any obstruction in the peaceful
enjoyment of the said properties by the plaintiffs.
(Mansi Malik)
ACJ/ARC (North-West)
Rohini Courts, Delhi/08.05.2025
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