Narinder Singh Sabharwal And Ors. vs Gurdeep Singh Sabharwal
1995 Latest Caselaw 761 Del

JUDGMENT

Devinder Gupta, J.

(1) I.A.7582/95ISANAPPLICATIONUNDERORDER39,RULES I and 2 read with Section 151 of the Code of Civil Procedure (for short "the Code") filed by the plaintiffs for temporary injunction against the defendant. I.A. 7841 /95 is an application filed by the defendant under Order 39 Rule, 4 read with Section 151 of the Code for vacation of the ex-parte ad interim order of injunction dated 25th July, 1995.

(2) Narinder Singh, plaintiff No. 1 is the son of late S. Meharban Singh. Plaintiffs 2 and 3 are the sons and plaintiffs 4 and 5 are the grand-sons of plaintiff No. 1. Defendant is the son of S.Devinder Singh. Narinder Singh had another brother Harbans Singh. Devinder Singh is the natural son of Narinder Singh. There is a dispute, which is subject matter of another litigation. Plaintiff No. 5 herein has filed Suit No. 559/95 against defendant's father Devinder Singh, impleading Narinder Singh and Smt. Joginder Kaur (wife of Narinder Singh), claiming a decree that Devinder Singh is not the adopted son of Harbans Singh and his wife Smt. Kesar Kaur but is the son of Narinder Singh and Joginder Kaur. These facts have been stated only to appreciate the arguments addressed at the bar and not with a view to record any findings on the respective contention of the parties, which is the subject matter of another litigation.

(3) Plaintiffs in their suit have claimed a decree for injunction against the defendant restraining him from entering into the premises of the partnership-firm M/s. Sabharwal's, 51, Panchkuin Road, New Delhi and from holding out to the public at large that he is related with the business of partnership-firm M/s. Sabharwal's. It is alleged that plaintiffs along with S. Devinder Singh are the partners of the firm M/s. Sabharwal's, business of which is being carried on in 51, Panchkuin Road, New Delhi. The defendant, who is the son of Devinder Singh, for the last few months started interfering with the business of partnership unauthorisedly and tried to take undue advantage of his relation with the plaintiffs. He also had started giving out to public at large that he was connected with and related to the business of partnership-firm. It is alleged that due to this act of the defendant, public notice dated 10th March, 1983 had to be issued but despite repeated requests and persuation, the defendant was adament and was trying to exploit his relationship with the plaintiffs and was unnecessarily trying to interfere with the business of partnership at 51, Panchkuin Road, New Delhi. Along with the suit an application under Order 39, Rules I and 2 of the Code was also filed with a prayer to restrain the defendant from interfering with the business of the firm M/s. Sabharwal's.

(4) On 25th July, 1995, an ex-parte ad interim order of injunction was issued restraining the defendant from entering into the premises of the partnership-firm M/s. Sabharwal, 51, Panchkuin Road, New Delhi and from interferring in any manner what so ever with the partnership business or from holding out to the public that the defendant is related with the business of the partnership-firm. It was made clear that the ex-parte order of injunction will not prevent the defendant's father for exercising his rights in the partnership business.

(5) On 31st July, 1995, the defendant filed an application (I.A.7841/95) under Order 39, Rule 4 of the Code, which came up before the Court on 2nd August, 1995, when notice thereof was accepted on behalf of the plaintiffs by their Counsel. Plaintiffs were allowed to file reply. Keeping in view the facts, as alleged in the application and on defendant's prayer,, it was clarified that in case the defendant has been making use of any portion of the Property No. 51, Panchkuin Road, New- Delhi, the ex-parte order passed on 25th July, 1995 will not prevent him from continuing to make use of that part of the property. This order was passed without prejudice to the plaintiffs' rights and contentions. Parties have now exchanged their affidavits. I have heard learned Counsel for the parties at length.

(6) DEFENDANT'S main case has been that ex-parte order of injunction was obtained on insufficient grounds by concealment of material facts and an attempt has been to take possession of the first floor of property 51, Panchkuin Road, New Delhi without trial of the suit and without any adjudication on the disputes on merits. It is also contended that the suit is a camouflage with a view to get an advantage over an order of status quo passed in Suit No. 559/95. The contention on behalf of the plaintiffs is that there has been no concealment of material facts. All relevant facts which were required to be pleaded, keeping in view of the nature of the suit," have been pleaded. Defendant has no right, title or interest with the possession of premises 51, Panchkuin Road, New Delhi where business of partnership-firm M/s. Sabharwal's is being carried on. Prima facie case for grant of injunction has been made out and defendant deserves to be restrained from interfering with plaintiffs' possession. It is also contended that after the passing of the order of injunction and on obtaining a clarificatory order on 2nd August, 1995, the defendant has tried to establish his possession. He deserves to be restrained with an effective order by determining the status of the parties as regards their possession. Learned Counsel for the parties have also placed reliance on number of documents.

(7) From the documents placed on record, it appears that the plaintiffs and the defendant's father, in the year 1993 had made an effort to have their disputes amicably settled, as regards some immovable properties and some business concerns including the partnership business and property inquestion. A memorandum of understanding dated 7th June, 1993 is stated to have been executed. As per the terms of understanding, it was agreed that defendant's father would get the sole ownership of land and building at 51, Panchkuin Road, New Delhi, standing in the name of late S. Meharban Singh and of 195, Jor Bagh, New Delhi, owned by late Smt. Kesar Kaur (wife of S. Harbans Singh). Defendant's father also agreed to relinquish all his rights, title or interest in the land, building and properties at I, Sunder Nagar, 196, Jor Bagh, New Delhi and 35, Panchkuin Road and is also agreed to have undertaken not to claim any share in the rented properties at 21,69 and 71, Panchkuin Road, New Delhi. In addition to the properties, memorandum of understanding also deals with settlement as regards businesses and share therein. It is not in dispute that letter of understanding has not yet been acted upon and no effect appears to have been given to the terms incorporated therein. During the course of arguments, learned Counsel for the plaintiffs stated that his clients fully accept the terms and are prepared to act and abide by each and every term of letter of understanding and will claim no share, right, title or interest in the business or property at 51, Panchkuin Road, New Delhi provided defendant's father simultaneously would relinquish all his rights, title and interest in properties at I, Sunder Nagar, 196, Jor Bagh, 35, Panchkuin Road besides not claiming any share in the rented properties at 21,69 and 71, Panchkuin Road. Since Devinder Singh is not a party in the instant suit, there is no question of adjudicating upon such an offer which has been made on behalf of the plaintiffs in the instant suit. Moreover, the defendant is not prepared to accept the plaintiffs' offer. This fact has been noticed since a reference was made by learned Counsel for the defendant, during the course of arguments to the letter of understanding and the other disputes which are pending adjudication in other litigations in which defendant's father is also a party. For deciding these two applications in hand, it will be necessary to record only a prima facie finding as to the party, who has been in possession of the first floor of 51, Panchkuin Road on or before the date of filing of suit and also as to whether any prima facie case for grant of injunction has or has not been made out.

(8) DEFENDANT'S case is that he has been carrying on his independent and separate business in the first floor of the property 51, Panchkuin Road. It is also his case as was stated during the course of arguments, that the defendant is not claiming any right, title or interest either in the ground floor of the property or in the partnership business being carried on therein by the partnership firm M/s. Sabharwal's, of which his father is one of the partners. In view of this stand, the point in controversy is narrowed down as regards the actual possession of first floor only.

(9) DEFENDANT'S case, as made out, during course of arguments is that he has been carrying on his business under the name and style of M/s. Sabharwal's International Furnitures in the first floor of this property as a tenant under his father and is entitled to continue in occupation thereof without interference. Plaintiff's case is that defendant has or had nothing to do with the first floor of the property in question and the case now set up by him is totally false and baseless and has been so set up with a view to usurp the property.

(10) After having considered the submissions made at the Bar, I am prima facie of the view that the defendant has not been in occupation of the first floor or any other part of the property in question. It was after the filing of the suit by the plaintiff that the defendant appears to have started laying his claim of occupation to the first floor. Prima facie, the material on record would show that his case as regards his possession is not only baseless but also an after thought.

(11) In the application under Order 39, Rule 4 of the Code, which was moved on 31st July, 1995, it was stated by the defendant that the first floor of the property was let out to a tenant and the ground floor was used as a show room by partnership-firm M/s. Sabharwal's. The legal heirs of tenant of the first floor had surrendered possession thereof in or about 1978-79, whereafter his father Devinder Singh retained possession with him from which part of the property, he (defendant) now runs his business under the name of M/s. Sabharwal Internationl Furnitures. The board of this firm is displayed over the property and his customers are also entertained by him either from the rear entrance or from the front entrance, as per the exigencies of time. In order to substantiate his possession, reliance was placed on a photostat copy of certificate of registration issued by the Sales Tax Authorities under the Delhi Sales Tax Act with a few photographs, copy of letter dated 11th March, 1995 and 14th March, 1995 on the letterhead pad of Sabharwal's Along with few other documents, namely, public notice dated 15th March, 1995, letter of understanding dated 7th June, 1993 and copy of order dated 8th March, 1995 in Suit No. 559/95.

(12) It is pertinent to note that in no part of the reply, a plea was taken by the defendant that he had been inducted as a tenant in the premises by his father, which plea was taken by him, for the first time, when he filed written statement on 22nd August, 1995, wherein it was stated that business from first floor of 51, Panchkuin Road, under the name and style of M/s. Sabharwal's International Furnitures was being carried on by him. He had got changed his business address in the records of Sales Tax Authorities with effect from 9th September, 1994. Stationary had also been got printed by him after September, 1994. Rent by cheque was also being paid by him to his father with respect to the property. Bill for telephone connection bearing No. 736769 was also being paid by him. Along with written statement, further documents were filed by the defendant on 22nd August, 1995.

(13) Plaintiffs have also placed reliance upon number of documents which have been produced on record. It is also their case that first floor earlier was in occupation of one Ganpat Rai, a tenant, who surrendered tenancy in the year 1978- 79. It is their case that tenancy was surrendered in favor of the owners and ever since the premises have been in occupation of the partnership-firm. Neither the premises remained in occupation of Devinder Singh exclusively, nor he ever delivered possession of the same to his son. It is contended that Devinder Singh as a partner also could not have created tenancy.

(14) From the perusal of the pleadings and the documents on record, prima facie the stand of the plaintiffs appears to be correct. Documents filed by the plaintiff include the balance sheets, trading, profit and loss account of S. Narinder Singh and Sons (H.U.F) New Delhi. Income Statement for the year ending 31st March, 1978, under the heading "house property", record Ganpat Rai as a tenant paying rent @ Rs. 25.00 per month. Rent of Rs. 300.00 is shown as income realised from the tenant. Defendant also accept that Ganpat Rai was the tenant in the first floor. M/s. Sabharwal's are also shown to be in occupation as a tenant paying rent @Rs. 200.00 per month to HUF's of S. Narinder Singh and Sons. It is the case of both the parties that the tenant surrendered tenancy in the year 1978-79. In the subsequent returns, under the heading "house property" consolidated income from 51, Panchquian Road is shown, which prima fade would suggest that the same is by way of rent from the partnership of M/s. Sabharwal's. Had it been only Devinder Singh in occupation of first floor, there was no question of the not mentioning this fact therein. The dispute in this case is not as to who is the owner of property 51, Panchkuian Road; but is about occupant, as to whether partnership firm of Sabharwal's is in occupation or it is the defendant who is in occupation. In case in the Income Tax Assessment, property is shown as of Narinder Singh & Sons Huf in occupation of tenants and there being no mention of the name of Devinder Singh or the defendant but only that of partnership-firm Sabharwal's, the inference prima facie would be that it is the partnership-firm which is in occupation of the ground floor as well as of first floor. The letter pad of partnership firm M/s. Sabharwal's have two telephone numbers printed thereon, one of which is 736769. In case this telephone is shown to be of partnership firm M/s. Sabharwal's, there cannot be any question of this telephone also separately being shown as a telephone of the defendant, who admittedly has nothing to do with partnership-firm M/s. Sabharwal's. As per the documents placed on record and as is admitted, the defendant has been carrying on business under the name and style of M/s. International Furitures at 195, )or Bagh, New Delhi with Telephone No. 4611470. It is the defendant's case that he got the name of business changed from M/s. International Furnitures to M/s. Sabharwal International Furnitures. Reliance is placed on an advertisement inserted in the newspaper, which is at page 59 of the document file. This advertisement was got inserted during pendency of the suit on 4th August, 1995. Stationary, according to the defendant, was got printed by him after September, 1994. Copies of two Bills No. 000506 and 000507 have been placed on record, both of which are dated 13th January, 1995. The aforementioned telephone number 736769 stated by the defendant to be in his use in the business, allegedly being carried on in the first floor of 51, Panchkuin Road, is not shown on the copy of the bills. Photo copy of the bills refer 195, Jor Bagh, New Delhi as Head office and 51, Panchkuin Road, as sales office of the defendant. Genuineness and correctness of the bills is seriously under challenge. Both these bills cannot be taken as reliable pieces of evidence at this stage for recording prima facie finding of possession since . possibility of manufacturing this evidence cannot be ruled out. Had the original bills been produced or even carbon copies are of these bills been produced at the earliest, some observation might have been made, but it is not possible to even ascertain as to whether these are photo copies of the carbon copies or of the original bills. Appended to these two bills are pay-in-slip of bank dated 24th February, 1995 in support of defendant's claim that proceeds of the bills were deposited in bank. Merely from the pay-in-slip, it cannot be inferred that the business is being conducted by the defendant in the first floor of 51, Panchkuin Road. At this stage such evidence would only lead to an inference that the defendant did deposit two amounts of Rs. 56,000.00 and Rs. 14,232 .00 in bank but the same cannot be taken even as a prima facie evidence of the fact that these amounts pertain to such bills, copies of which have been produced on record. As noticed above, copies of the bills refer to defendant's business head office at 195, Jor Bagh. Had the sale office been at 51,Panckhuin Road and phone 736769 been in defendant's use, as has been alleged by him, there is no reason why the telephone 736769 is not shown as a telephone in sale office at 51, Panchkuin Road. Possibility of such type of photo copies being tempered with or manufactured cannot be ruled out. These documents were also not filed along with the document at the earliest opportunity along with the application under Order 39, Rule 4 of the Code, but were filed much late on 22nd August, 1995.

(15) PLAINTIFFS' possession prima facie will have to be inferred even on the first floor from the fact that property 51, Panchkuin Road is shown as property in their occupation as tenant in profit and loss account of Narinder Singh & Sons (H.U.F) after the earlier tenant vacated it. This inference is also further fortified from another circumstances, namely, letter addressed by the tenant Ganpat Rai on 4th May, 1967 to the Deputy Land & Development Officer with copy to Mr. Narinder Singh Sabharwal. From the material available on record it is not possible even to accept the defendants version that the tenant had surrendered possession in favor of his father Davinder Singh. Inference from the above letter of the tenant would be that on tenancy being surrendered the possession was delivered by the tenant Ganpat Rai in favor of Narinder Singh, whereafter the plaintiffs' continued using the same premises for the purpose of partnership and for that reason Devinder Singh as a partner could neither part with possession, nor create tenancy in defendants favor.

(16) As regards the existence of the sign board of Sabharwal International Furnitures below of one of the windows on the first floor as per plaintiffs' version, the same was affixed for the first time, after the ex-parte. order of injunction was granted. During the course of arguments, it was also stated on behalf of the defendant that earlier there was a tin board but the same was replaced in july, 1995 with a wooden board. Looking at the various photographs placed on the record, the type of the premises and the locality where the property is situated, it is unbelievable that had the defendant been in possession and in use of the premises for carrying on his business of Sabharwal International Furnitures, as its sale office, sign board of the type, as in seen in the photographs would be affixed. There admittedly are and have been two neon sign boards, one vertical and the other horizontal. The vertical neon sign board covers almost vertically the entire height of the first floor, whereas the horizontal sign board is affixed on a portion above the ground floor. In case first floor was under use of the defendants most likely there would have been a proper sign board compatible with the size of the floor and compatible with the other sign boards affixed on this property or on the adjacent properties. The two neon boards are of Sabharwals. Due to the aforementioned circumstances, prima facie, it has to be inferred that as on the date of filing of the suit, defendant was neither in occupation, nor there was any sign board of his on the property. Change of the name of defendant's business being run from his Jor Bagh residence and the alleged change in the address from Jor Bagh to Panchkuin Road, alleged to have taken place, at this stage are also not very convincing to show defendant's possession in the first floor. In order to show that the change in the business name and business place in Sales Tax Record is bonafide and was made in September, 1994 in the light of plaintiff's objection and Court's order dated 2nd August, 1995, it was necessary for the defendant to further show the basis of such change. Mere change in the business address without contemporaneous evidence that it was ordered to be done on the basis of some verifications, will be of no relevance and will not be a proof of change of business address. The plea of tenancy, which was not taken at earliest when application under Order-39, Rule 4 Civil Procedure Code . was filed, but was taken subsequently, is also very vague in material particulars as regards the date of induction, rent settled and the period for which tenancy is alleged to have been created. For this reason also such a plea prima facie will have to be discarded.

(17) From the material on record, it is a case for grant of injunction in plaintiffs' favor, as prayed for, which if not granted, will definitely cause not only much inconvenience to the plaintiffs but is also likely to lead to multiplicity of proceedings. Balance of convenience is also lies in grant of injunction. The damage due to the non-grant of injunction to the plaintiffs who are carrying on their business therein would be such which it not be possible to compensate by way of damages. To the contrary loss or damage, if any, to the defendant can very well be compensated in terms of money.

(18) The objection of learned Counsel for the defendant that there has been concealment of material facts also deserves rejection. Perusal of the record of Suit No. 559/95 which has been called to the Court, on the request of learned Counsel for the parties, would show that it was not at all necessary for the plaintiffs to make any reference either to the said memorandum of understanding or to the fact of the filing of Suit 559/95 by plaintiff No. 5 against the father of defendant in this Court. Suit No. 559/95, as mentioned above is for grant of decree for declaration and relate only to property bearing No. 1, Sunder Nagar and 195, Jor Bagh. It has nothing to do with the partnership-firm or its business at 51, Panchkuin Road. The said suit is also not filed against the defendant.

(19) In view of the above, the application moved by the defendant deserves dismissal and plaintiffs' application deserves to be allowed. Resultantly, the ex-parte order of injunction granted on 25th July, 1995 stands confirmed. The clarification or modification dated 2nd August, 1995 shall stand withdrawn. By way of abundant precaution, an order is passed restraining the defendant from interfering, in any manner, whatsoever with the partnership business of partnership-firm Sabharwal's and their possession in 51, Panchkuin Road, New Delhi and from holding out to the public that the defendant is related with the business of the partnership-firm. It is made clear that this order of injunction will not prevent the defendant's father from exercising his rights as a partner in the partnership business at 51, Panchkuin Road, New Delhi.