Jagdish Chander Mehta vs Bimla Mehta And Ors.
1993 Latest Caselaw 694 Del

JUDGMENT

Sat Pal, J.

(1) This application was filed by the plaintiff under Order 39 Rules 1 & 2 and Order 26 Rule 9 and Section 151 of the Code of Civil Procedure (hereinafter referred to as the Code) and it was, inter alia, prayed in this application that a temporary injunction may be issued restraining defendant No.7,Prakash Chander Mehta from disturbing the possession of the plaintiff and his son in a two room residential unit on the ground floor of property No. 52/48, Ramjas Road, Karol Bagh, New Delhi and from inducting any new tenant in any portion of the said property till the pendency of the suit and further the said defendant be directed to maintain the status quo.

(2) The application came up for hearing on 2nd September, 1992 and notice was issued to the defendants for 22nd January, 1993. Plaintiff was granted an ex-parte injunction and it was directed that "status quo as of today with regard to possession of plaintiff shall be maintained till the next date". A reply to this application has been filed on behalf of defendants No. 6 and 7, namely. Dr. Raj Rupak Mehta and Prakash Chander Mehta and in this reply the averments and allegations made in this application have been controverter.

(3) As per averments made in the plaint, the plaintiff is the real brother of defendant Nos. 6 to 10 and defendants I to 5 are the legal heirs of late Shri Kailash Chandar Mehta, who was also one of the brothers of the plaintiff. It is alleged in the plaint that on 1st April, 1991 Smt. Pushpawanti Mehta, the mother of the plaintiff and defendants 6 to 10, had executed a Will bequeathing property No.52/48, Ramjas Road, Karol Bagh, New Delhi in specific portions to her four sons, namely, Jagdish Chander Mehta (Plaintiff), late Shri Kailash Chander Mehta, Dr. Raj Rupak Mehta (defendant No. 6) and Prakash Chander Mehta (defendant No. 7) and her daughter Ms. Sanyokta Mehta (defendant No. 8). The plaintiff has filed the above suit for partition of the aforesaid property.

(4) It is the admitted case of the parties that one portion of the said house on the ground floor consisting of two rooms residential unit which is at present in possession of the plaintiff, had been let out earlier to one Shri Ishwar Chand Garg. Whereas the case of the plaintiff is that the said tenant vacated this unit on the ground floor on 15th April, 1992 and he occupied the same on 16th April, 1992, the case of the respondent No. 7 is that Shri Garg had handed over the vacant possession of this portion to him on 5th April, 1992 and a document was duly executed on that day regarding handing over and taking over the possession of the said unit between Ishwar Chander Garg and him and the plaintiff illegally occupied this portion on 16th April, 1992 in the absence of defendant No. 7.

(5) Mr. Rawal, the learned Counsel appearing on behalf of defendant No. 7 submitted that the plaintiff has not approached this Court with clean hands and concealed the material facts of having filed two suits bearing Nos. 207/ 92 and 239/92 pertaining to the suit property in the District Courts and as such the application should be dismissed on this short ground.

(6) The learned Counsel drew my attention to the copy of the plaint in Suit No. 207/92 which was filed by the plaintiff and in this suit it was prayed that the defendant No. 1 (who is defendant No. 7 in the present case) be restrained from disturbing the possession of the plaintiff in the two rooms residential unit on the ground floor of property No. 52/48, Ramjas Road, Karol Bagh, New Delhi. It may be pointed out here that in that case three other persons were also imp leaded as defendants and they are Dr. Raj Rupak Mehta, Mrs. Bimla Mehta and Ms. Sanyokta Mehta who are defendants No. 6, 1 and 8 in the present case. The learned Counsel also drew my attention to the plaint, filed in the other suit bearing No. 239/92 and in that case the plaintiff in the present case was plaintiff No. 2. In that case also the plaintiff has made the same prayer as made in Suit No. 207/92.

(7) Suit No. 207/92 came up for hearing for the first time on 26th May, 1992 and on that date a learned Sub-Judge refused to grant ex-parte injunction in favor of the plaintiff. Suit No. 239/92 came up for hearing before Shri P.K. Bhasin, Addl. Distt. Judge (Vacation) on 17th June, 1992and the plaintiff No. 2 was granted ex-parte injunction against Parkash Chander Mehta.who was directed to maintain status quo in respect of possession of plaintiff No. 2. Both the suits are still pending. Learned Counsel for the defendant No. 7 pointed out that in this application the plaintiff has made the same prayer which was made by the plaintiff in the earlier two suits filed in the Distt. Court, but the facts regard ing filing of those two suits and the orders passed in those suits have been deliberately concealed by the plaintiff in the present suit. He, therefore, contended that the plaintiff having concealed the material facts was not entitled to any relief and his application should be dismissed. In support of his contention the learned Counsel placed reliance on three judgments of this Court reported in the case of Anand Swarup v. Municipal Corporation of Delhi, ; J.N. Bhambani v. M/s. Indian Overseas Bank, New Delhi, Air 1979 Delhi Noc 55 and J.K. Kashyap v. J.K. Guha, 1993 Iv Ad Delhi 29.

(8) Mr. Baba Shiv Charan Singh, learned Senior Counsel appearing on behalf of the applicant, however, submitted that the suits filed by the plaintiff in the Distt. Court were only for grant of permanent injunction whereas the present suit filed in this Court is for partition of the joint residential property and for possession of the separated portion of the property to the plaintiff. He contended that since the relief claimed in the present suit is different from the relief claimed in the two suits filed in the Distt. Courts, there is no concealment of material facts on the part of the plaintiff. He further submitted that admittedly the two rooms unit is in possession of the plaintiff and the present suit being a suit for partition, it shall be in the interest of justice that the plaintiff is permitted to retain the possession of the two rooms unit which is already in his possession. He, therefore, contended that the interim stay granted on 2nd September, 1992 should be confirmed.

(9) I have given my thoughtful consideration to the submissions made by the learned Counsel for the parties and have perused the documents on record. As stated earlier, the present suit has been filed on behalf of the plaintiff for partition of the joint residential property and for possession of the separated portion of the property and the case of the plaintiff is based on the Will alleged to have been executed by Smt.Pushpawanti Mehta on 1.4.1981. In this application prayer (a) reads as under :- "A temporary injunction may be issued restraining defendant No. 7 from disturbing the possession of the plaintiff and his son in a two room residential unit on the ground floor of property No. 52/48, Ramjas Road, Karol Bagh, New Delhi and from inducting any new tenant in any portion of the said property till the pendency of the suit. Defendant No. 7 may be directed to maintain status quo."

From the above prayer, it is evident that injunction has been sought against defendant No. 7 (Prakash Chander Mehta) from disturbing the possession of the plaintiff and his son in the two rooms residential unit on the ground floor of the suit property. Suit No. 207/92 which is for permanent injunction has also been filed on behalf of Shri Jagdish Chander Mehta (plaintiff in the present suit). The prayer clause in this suit reads as under :- "It is, therefore, prayed that a decree of permanent injunction, with costs, may kindly be passed in favor of the plaintiff and against the defendants thereby restraining the defendant No. 1, his associates, legal representatives, agents, assignees and/or anybody else on their behalf may kindly be restrained from dispossessing the plaintiff from the suit premises i.e. two rooms set consisting of two rooms, store room, bath room, Miani, Kichten, open court-yard at the rear and front portion (as shown red in the suit plan attached) on the ground floor of the premises bearing No. 52/48, Ramjas Road, Karol Bagh, New Delhi and from interfering in any manner with the peaceful use, occupation, enjoyment and possession of the plaintiff over the said premises. It may be pointed out here that defendant No. 1 in S. No. 207/92 is Parkash Chander Mehta who is defendant No. 7 in the present suit. It will also be relevant to point out here that this suit came up for hearing before a learned Sub-Judge on 26.5.92 and he rejected the prayer of the plaintiff for ex-parte injunction.

(10) Again the Suit No. 239/92 though initially was filed on behalf of Shri Ashok Kumar Mehta (who is son of the plaintiff in the present case) but by way of an amendment the name of Shri Jagdish Chander Mehta (plaintiff in the present case) was included as plaintiff No. 2 on 16.6.92. In this suit the plaintiffs had sought the same relief as was sought in S. No. 207/92. Thereafter on 17.6.92 the learned Additional Distt. Judge (Vacation) granted ex-parte injunction in favor of Shri Jagdish Chander Mehta only and Shri Parkash Chander Mehta was directed to maintain status-quo in respect of possession of Shri Jagdish Chander Mehta only.

(11) Though in the present suit the plaintiff has claimed the relief for partition of the joint residential property and for possession of the separated portion of the property bearing No. 52/48, Ramjas Road, Karol Bagh, New Delhi, but in this application filed under Order 39 Rules 1 & 2, the plaintiff has sought the same relief for restraining Parkash Chander Mehta from disturbing the possession of the plaintiff and his son in the two rooms unit on the ground floor of the suit property, which he had sought in S.Nos.207/ 92 and 239/92. It was, therefore, obligatory for the plaintiff to disclose the facts regarding filing of earlier suits bearing No. 207/92 and 239/92 in order to claim the discretionary relief of injunction in the present case. Since the plaintiff has failed to disclose the facts regarding filing of earlier suits in the present case, the plaintiff is not entitled to relief of injunction.

(12) It may also be pointed out here that the defendant No. 7, in his reply to this application had stated that the plaintiff had filed another suit in the Court of Learned Vacation Judge, District Courts in June, 1992 and without disclosing facts of earlier suit obtained ex-parte ad-interim injunction. In his rejoinder to the reply, the plaintiff submitted that the plaintiff had filed suit bearing No. 207/92 but the second suit bearing No. 239/92 was filed by Ashok Kumar Mehta against the defendant No. 7 for injunction and in the said suit status quo was ordered to be maintained, whereas as stated hereinabove plaintiff himself was the plaintiff No. 2 in Suit No. 239/92 and in fact interim injunction was granted in favor of plaintiff No. 2 only and not in favor of his son Shri Ashok Kumar Mehta. Thus the plaintiff even did not disclose the true facts in his rejoinder to the reply in the present application.

(13) It is a cardinal principal of law that a person must come to the Court with clean hands if he seeks injunction under Order 39 Rules 1 &2 of the Code. Since the plaintiff has not come to this Court with clean hands as explained hereinabove, this application must fail. The view I have taken is supported by three judgments of this Court reported in the cases of J.N. Bhambani (supra), Anand Swarup (supra) and my judgment in the case of J.K. Kashyap (supra). Accordingly, the application is dismissed with costs which is quantified at RS.1000.00 and the interim stay granted in favor of the plaintiff on 2.9.1992 stands vacated. In view of the order passed in Ia 11169/92 no further orders are required to be passed in this application. Accordingly, this application also stands disposed of.