D.S. Bansal vs K.G. Krishnamurthy
1991 Latest Caselaw 655 Del

JUDGMENT

S.C. Jain, J.

(1) Heard, Mr. K.G. Krishnamurthy hereinafter referred to as the respondent filed an eviction petition under Section 14C of the Delhi Rent Control Act hereinafter referred to as the Act against D.S. Bansal, on the plea that he was retired Govt. servant and he needs the premises bonafide for himself and his family members dependant upon him. The petitioner D.S. Bansal was duly served with the notice on 31.5.91, but he did not file an application under Section 25 of the Delhi Rent Control Act seeking leave to defend the proceedings within a period of fifteen days as prescribed under the Act and, therefore, in the absence of any affidavits seeking leave to defend an order of eviction was passed by the Rent Controller on 16.7.91.

(2) Aggrieved, the tenant DS. Bansal, hereinafter referred to as the petitioner, filed an application under Order 37 Rule 4 Civil Procedure Code seeking the relief that the eviction order passed should be set aside as he was prevented by sufficient cause from filing the application within the prescribed time. The plea taken in his application under Order 37 Rule 4 Civil Procedure Code is that on that date when he received the summons on 31.5.91 he suffered severe heart attack and was admitted in Singh Nursing home, Vivek Vihar, where he remained under treatment up to 20,7.91.

(3) That application under Order 37 Rule 4 Civil Procedure Code is pending disposal before the Rent Controller. In those proceedings the petitioner moved an application seeking stay of the eviction order. The Rent Controller vide order dated 24.9.1991 declined the request of the petitioner for stay. Aggrived this petition has been filed. The main contention of Mr. Kalra Counsel for the petitioner is that at the time of deciding an application for interim stay the Court has not to look into the documents and evidence so minutely when the main petition is pending disposal. According to him the observations of the Rent Controller that complete record from the Nursing Home has not been produced are not called for. Whether he remained admitted in Singh Nursing Home or Mandawali Nursing Home is to be decided on the basis of evidence and not at this stage. The application for stay should not have been rejected. He has a prima facie case and in case he is dispossessed he will suffer irreparable loss and injury.

(4) Mr. Narinder Singh Counsel for the respondent/counter countered the argument of the Counsel for the petitioner and stated that the petitioner has not come with clean hands and he has belied himself by the averments made in the application and documents produced on record. Relief of injunction which is equitable relief con not be granted to the petitioner in such circumstances.

(5) Before granting the relief of injunction the petitioner has to prove prima fade case, balance of convenience and that he shall suffer irreparable loss, if interim injunction is not granted. Relief of injunction is equitable relief and he, who seeks equity must come with clean hands. In this case, in the application under Order 37 Rule 4 Civil Procedure Code the plea taken by the petitioner is that he had suffered heart attack on 31.5.91, when he was served with the summons and that he remained admitted as indoor patient in Singh Nursing Home where he remained under treatment up to 20.7.91. The order of the trial Court indicates that the record produced is not of Singh Nursing Home but of Mandawali Nursing Home. This fact is sufficient to disentitle the petitioner from claiming the relief of injunction which is equitable relief. He has no prima facieca.se and the balance of convenience also does not lie in his favor. The fact that his petition under Order 37 Rule 4 Civil Procedure Code is pending disposal not sufficient to grant the relief of interim injunction. The trial Court has correctly appreciated the facts and law while declining the request of the petitioner. I do not find any ground to interfere in the same. Dismissed.