Ram Gopal Kaushal & Ors. vs Amar Kaur & Ors.
1999 Latest Caselaw 916 Del

ORDER

K. Ramamoorthy, J.

1. Defendants 1 & 2 in the suit are the petitioners in the revision petition. The learned Senior Civil Judge, pending the suit, granted injunction under Order 39 Rules 1 & 2 CPC on the 16th of May, 1998 in the following terms :- "Hence, the application under Order 39 Rules 1 and 2 CPC is disposed of with the order that the defendants shall not interfere in the enjoyment of the property on the second floor of the plaintiffs....not legible...However, in order to protect the security of both the persons, one lock can be put on the main gate with two keys one given to the plaintiffs and the other given to the defendants. With these observations, the application under Order 39 Rules 1 and 2 CPC stands disposed of."

2. Defendants 1 & 2 preferred the appeal. On appeal by defendants 1 & 2, the learned Additional District Judge, by order dated 7.8.1999, dismissed the appeal. Against that order, the revision petition had been filed.

3. The respondents came forward with the case that they had purchased the property from the builder with whom the petitioner had entered into a collaboration agreement and the builder put the respondents in possession of the property, that is, the second floor in the premises.

4. According to the respondents, the petitioners claiming to be the owner of the entire premises consisting of three floors, claim to be in possession of the second floor, and, therefore, the respondent had to file the suit and seek for injunction pending the suit.

5. The case of the petitioners/defendants was that there was a collaboration agreement between the defendants and the builders, but the builder did not act as per the terms of the collaboration agreement, and pending the dispute between them, the respondents cannot claim to be in possession of the second floor. The learned counsel for the defendants/petitioners, Ms. Ketki Goswami, submitted that the lower courts, without considering the documentary evidence on record, including the photographs, had assumed that the respondents were in possession of the properties, and the lower courts had not considered, whether the respondents had shown prima facie strong case for the grant of injunction.

6. I heard the learned counsel for the petitioners, Ms. Ketki Goswami, and the learned counsel for the respondents, Mr. J.L. Kalra, at length. During the course of the arguments, it came to light that the builder had sold the basement and the first floor, and the purchasers are in possession of the property, and the defendants had not taken any exception to it. This fact was with held from the counsel by the defendants 1 & 2. The learned counsel, who appeared for the petitioners, had to ascertain the fact from the client in Court. When this crucial fact had not been placed before the court, it cannot be said that the lower courts had committed any error in coming to the prima facie conclusion that the respondents were put in possession of the second floor by the builder. If the defendants/petitioners have any grievance against the builder, that could be agitated in the proceedings pending against the builder.

7. The respondents/plaintiffs, even in the plaint, mentioned about the order passed by the learned Additional District Judge on the 16th of June, 1997 in the suit filed by the defendants against the builder. The order reads as under :-

   "16.6.97 Present counsel for parties. Defendant has filed written    statement and reply to application under Order 39(1)(2) CPC. 
 

   According to reply, the Defendant has already parted with the    subject property in favour of one Amar Kaur and Smt. Narinder    Kaur in June, 1997. On instruction, the counsel states that it    was done on 13.6.1997. A copy of the agreement has also been    placed on record. 
 

   Be that as it may, in the facts of the case, the Defendant and    transferees whose names have been disclosed in the written statement are restrained from further alienating the property to any    third party. Plaintiff will implead the transferees as disclosed    in the written statement. 
 

   The case be placed before learned Distt. & Sessions Judge for    appropriate orders on 21.7.97. Plaintiff shall also issue/take    steps for service of transferees disclosed in the written statement who should be imp leaded by way of amendment in the Memo in    the meanwhile for the next date of hearing. Compliance of O.39 R.    3 CPC be made qua the transferees."  
 

8.  The petitioners did not make the respondents as parties in that suit, as directed by the learned Additional District Judge on the 16th of June, 1997. 
 

9. In the light of the facts and circumstances. I am satisfied that the lower courts have correctly come to a prima facie conclusion and had granted the relief to the plaintiffs in the suit. I find no error of jurisdiction. The trial court, while deciding the matter finally, would decide the issue on merits without being any way influenced by the orders passed in the interlocutory application. Accordingly, the revision petition is dismissed.

10. There shall be no order as to costs.