Chand Naulakha vs Saraswati Builder
1997 Latest Caselaw 278 Del

JUDGMENT

Manmohan Sarin, J.

(1) The petitioner has filed the present revision petition assailing the order dated 13.7.1994, passed by the Additional District Judge, by which the petitioner's applications under Order 38, Rule 5, Civil Procedure Code and under Order 39, Rules 1 and 2, Civil Procedure Code was dismissed.

(2) The essential facts for the purposes of disposal of the revision petition may be briefly noted: (I)The petitioner has instituted a suit for recovery of Rs. 2,74,000.00 on the allegation that a sum of Rs. 2,50,000.00 had been deposited with defendants concern M/s. Saraswati Builders, which would carry interest @ 18% p.a. The petitioner accordingly sued the respondents for the sum of Rs. 2,74,000.00 . The petitioner moved an application under Order xxxviii, Rule 5, Civil Procedure Code and under Order Xxxix, Rules 1 and 2, Cpc, seeking attachment before judgment of properties as well as restraint on the respondents from selling, transferring and disposing of any of their properties viz. D-42, South Extension, Part Ii, New Delhi, DD-14, Nehru Enclave, Kalkaji, New Delhi and recovering rent from tenants of property No. G-1/16, Ansari Road, Darya Ganj, New Delhi.

(3) Counsel for the petitioner has strenuously urged before me that the learned Additional District Judge while passing the impugned order did not assign any reason for not granting the relief sought under Order Xxxix, Rules 1 and 2, Cpc, for restraint on transfer alienation. Further that the Additional District Judge had observed in the impugned order that the petitioner had failed to place on record the advertisements, which the respondents had taken out for disposing of the properties. Learned Counsel for the petitioner submits that the said finding is against the record since one of the advertisements relating to Sahibabad land was placed on record.

(4) Learned Counsel for the respondent has submitted before me that the respondent questions the very basis of the suit which has been filed on a forged receipt. The allegation of the respondents is that certain letterheads were stolen and the said receipt was forged. No amount of Rs. 2,50,000.00 was deposited by the petitioner. Respondent has also in the reply filed given various details of the rental income from the properties which itself amount to Rs. 4,93,123.00 p.m. It is stated that the respondents are engaged in the business of real estate and have their roots in Delhi and are owning several properties. The mere sale of any of the properties at Sahibabad would not cause any prejudice to the petitioner. In these circumstances, I do not find any material irregularity or error of jurisdiction as is required to be established for interference in revisional jurisdiction. The requirement for the grant of interim relief as prayed for in the application moved under Order xxxviii, Rule 5, Civil Procedure Code and under Order Xxxix, Rules 1 and 2, Civil Procedure Code were not made out. The petitioner had failed to make out even a prima facie case in its favour apart from showing any irreparable damage by non-grant of injunction. The petition has no merit and the same is dismissed.